United States District Court, E.D. Tennessee, Knoxville
REPORT AND RECOMMENDATION
C. Poplin United States Magistrate Judge
case is before the undersigned pursuant to 28 U.S.C. §
636, the Rules of this Court, and the referral Order [Doc.
101] of the District Judge.
before the Court are Plaintiff Lori Vaughn's Motion for
Prejudgment Interest [Doc. 95] and Motion for
Attorney['s] Fees and Litigation Expenses [Doc. 97].
Defendant responded in opposition to the Motion for
Prejudgment Interest [Doc. 103], and Plaintiff subsequently
filed a reply [Doc. 109]. Defendant also responded in
opposition to the Motion for Attorney['s] Fees and
Expenses [Doc. 104], to which Plaintiff replied [Doc. 110].
Plaintiff then filed a Second Supplemental Declaration of
Jesse D. Nelson [Doc. 111] requesting additional
attorney's fees incurred after June 4, 2018, for hours
expended in litigating attorney's fees and other
post-trial matters, and Defendant responded [Doc. 112] in
opposition. Finally, Plaintiff filed an additional
Supplemental Brief in Support of Motion for Attorney Fees and
Litigation Expenses [Doc. 115], which the Court will also
construe as an appeal of the Clerk's decision on the Bill
of Costs. Defendant accordingly responded in opposition.
[Doc. 116]. Both motions have been thoroughly briefed, and
the Court has considered all of the above filings.
parties appeared before the Court for a motion hearing on
November 7, 2018. Attorney Jesse Nelson appeared on behalf of
the Plaintiff. Attorneys Paul Wehmeier and Jay Mader appeared
on behalf of the Defendant.
for the reasons more fully explained below, the Court
RECOMMENDS that the Plaintiff's Motions
[Docs. 95 & 97] be GRANTED IN
PART AND DENIED IN PART. Specifically, the Court
RECOMMENDS that the Plaintiff be awarded a
total amount of $212, 564.25 in attorney's fees, $3,
009.27 in litigation expenses, and $5, 261.66 in prejudgment
filed a Complaint against Defendant Parkwest Medical Center
(“Parkwest”) in this Court on May 29, 2015. [Doc.
1]. The Complaint alleged that Plaintiff began working for
the Defendant as a student nurse associate in June 2003,
subsequently became a registered nurse, and later, in 2010,
she was transferred to an affiliated sister facility, LeConte
Medical Center (“LeConte”). [Id. at
¶ 7]; see [Doc. 23 at 1-2]. The Complaint
further stated that in December 2010, while assigned to
LeConte, Plaintiff suffered a work-related injury consisting
of a multilevel cervical disk herniation and aggravation of a
prior back injury. [Doc. 1 at ¶ 8]. Plaintiff was unable
to work while she received treatment for her injuries and
exhausted her leave under the Family Medical Leave Act
(“FMLA”). [Doc. 1 at ¶ 9]. The Complaint
alleged that Plaintiff was transferred back to Parkwest in
2012 but was subsequently fired on March 22, 2013 for
exhausting all available unpaid medical leave, therefore
leaving her eligible for rehire. [Id. at ¶ 11].
Complaint then averred that Plaintiff's doctor released
her in October 2013 to work without formal physical
restrictions, and Plaintiff subsequently interviewed for a
position with Parkwest. [Id. at ¶¶ 12-13].
However, Plaintiff alleged that she was told that she was
selected for the position, but then received an email
revoking the job offer. [Id. at ¶ 13].
Plaintiff stated that she continued to apply for several jobs
with Defendant which she was capable of performing.
[Id. at ¶ 14]. The Complaint continued that
Plaintiff hired an attorney by February 2015 to assist her in
the workers' compensation process due to her injuries,
and that her attorney then notified Defendant of her
representation. [Id. at ¶ 15]. Plaintiff
alleges that Defendant's human resources
(“HR”) department subsequently offered to restore
Plaintiff to her previous position, but Plaintiff requested
to clarify with her surgeon if any accommodations were
necessary. [Id.]. After Plaintiff was unable to
attend her doctor's appointment the next day due to
inclement weather, she notified the HR representative, who
responded that Defendant would not hold the job offer open,
and the position was subsequently filled. [Id. at
¶ 16]. The Complaint alleged that Plaintiff applied for
approximately seventy jobs with Defendant that she was
capable of performing, but that she did not receive an
interview for any of these positions. [Id. at ¶
Complaint alleged failure to accommodate and discrimination
claims in violation of of the Americans with Disability Act
(“ADA”) [Id. at ¶ 26], retaliation
in violation of the FMLA [Id. at ¶¶
29-31], and Tennessee common law retaliation and Tennessee
Public Protection Act (“TPPA”) claims
[Id. at ¶ 40]. The Court dismissed the
Tennessee state law claims with prejudice through an agreed
order [Doc. 16], and Plaintiff voluntarily dismissed her FMLA
claim [Doc. 21]. The parties filed cross-motions for summary
judgment on Plaintiff's remaining claims under the ADA,
[Docs. 22, 24],  and the Court granted the Defendant
summary judgment on both Plaintiff's discrimination and
failure to accommodate claims under the ADA. [Doc. 47]. After
Plaintiff filed a notice of appeal, the Sixth Circuit
reversed the grant of summary judgment to Defendant,
on December 21, 2017, a mandate issued remanding the case for
further proceedings. [Doc. 53]. Following a status conference
on February 22, 2018, an Order for Mediation [Doc. 55] was
failing to resolve the case in mediation, the parties
proceeded to trial on May 29, 2018, and the trial continued
to June 1, 2018, when the jury entered the verdict. The jury
determined that the Defendant discriminated against Plaintiff
in violation of the ADA. [Doc. 85]. The jury awarded
Plaintiff $19, 855.43 in back pay and $8, 786.50 in lost
benefits. [Id.]. However, the jury did not find that
Plaintiff was entitled to compensatory or punitive damages.
[Id.]. The Court entered Judgment [Doc. 86] in favor
of Plaintiff on June 4, 2018.
POSITIONS OF THE PARTIES
Attorney's Fees and Litigation Expenses
Plaintiff filed a Motion for Award of Attorney['s] Fees
and Litigation Expenses [Doc. 97] requesting a lodestar award
of $246, 891.50 as well as taxable costs and other litigation
expenses in the amount of $7, 917.21. [Doc. 98]. Plaintiff asserts
that she was the prevailing party in her ADA claim, which
provides for reasonable attorney's fees, litigation
expenses, and costs to be awarded to the prevailing party.
See 42 U.S.C. § 12205.
support of her motion, Plaintiff identifies three attorneys
and two paralegals who worked on the case. The attorneys
include Jesse D. Nelson, Kayla L. Towe, and Kayla M. Swiney.
For Attorney Nelson, Plaintiff requests an hourly rate of
$325. In support of that rate, Plaintiff indicates Attorney
Nelson has held a law license since 2006 and has practiced
almost exclusively employment law. [Doc. 98-1 at 1-2]. He
established his own firm in 2011 and estimates that he has
handled well over 200 employment cases, some of which
involved dozens of plaintiffs. [Id. at 2]. Attorney
Nelson serves as a speaker at employment law seminars,
training sessions, and CLE programs, and completed a second
term as a board member of the Tennessee Employment Lawyers
Association. [Id. at 2-3]. He expended 611.60 hours
in the case prior to the entry of the jury verdict.
[Id. at 30].
Attorney Towe, Plaintiff seeks an hourly rate of $250.
Attorney Towe has practiced almost exclusively in the area of
employment law since becoming barred in 2014. [Id.
at 4]. She expended 130.70 hours on the case. [Id.
at 30]. For Attorney Swiney, who served both in a legal and
paralegal role at times, Plaintiff requests an hourly rate of
$200 for work performed in a legal capacity and $85 per hour
for work performed in a paralegal capacity. Attorney Swiney
was licensed in 2017. She graduated second in her law school
class and served as president of the Mock Trial team and the
Executive Symposium Editor of the LMU Law Review.
[Id. at 4]. She invested 59 hours of legal services
and 25.10 hour of paralegal related services in the case.
[Id. at 30].
Karla Gander and Ashley James, who performed work as
paralegals, Plaintiff is requesting an hourly rate of $85.
Ms. Gander holds a bachelor's degree, and she has ten
years of experience in the legal administration and human
resources. [Id. at 4]. Ms. James is a certified
paralegal with approximately nine years of experience.
[Id.]. The number of hours billed for both Ms.
Gander and Ms. James totaled 17.8. See [Id.
support of the Motion, Plaintiff states that the hourly rates
are reasonable, and she submits Declarations from several
attorneys in support of the rates. [Doc. 98 at 4-6].
Plaintiff cites a number of cases, arguing that the rates
charged in this matter are reasonable. [Id.].
Plaintiff states that she does not seek an enhancement or
adjustment of her lodestar amount and that the hourly rates
and hours of service are reasonable. Plaintiff states that
she was the prevailing party and highlights the award
obtained in this case, including the case being remanded
after an appeal to the Sixth Circuit. Plaintiff adds that
nearly all of the time entries associated with tasks
performed on claims she later dismissed have been omitted.
[Id. at 13].
also notes over a four-year period of representation,
beginning with the EEOC investigation through the Sixth
Circuit granting Plaintiff's appeal, and then proceeding
through trial. [Id. at 6]. Plaintiff asserts that
the requested fee is reasonable due to Defendant's
failure to consider early settlement or make any kind of
reasonable settlement offer. [Id. at 12]. In
addition, Plaintiff contends that her attorneys could not
perform work for other clients or accept new clients due to
preparing and trying the instant case. Plaintiff avers that
the fees are within the range customarily charged by
attorneys with similar skill and experience. [Id. at
5-6]. Plaintiff asserts that her attorneys are experienced
and respected in their fields and that this case was not
desirable given the limited economic damages. Plaintiff
states that her attorneys have represented her since 2014 and
that the awards in other cases support the requested amount.
litigation costs, Plaintiff requests $7, 917.21, of which $4,
831.58 was also claimed by Plaintiff as part of
her Bill of Costs [Doc. 94]. The summary of Plaintiff's
litigation costs totaling $3, 085.63 includes the following:
$2, 011.40 in mediation costs; $16.32 for postage; $81.36 for
trial/data storage supplies; $184.64 for meals; $225.12 for
lodging and meal expenses for travel to Cincinnati for
appellate hearing; $198 for parking and $368.79 in mileage.
objects [Doc. 104] arguing that the hourly rates requested by
Plaintiff's attorneys are unreasonable, that fees for
unsuccessful claims should be excluded from the lodestar
calculation, that a downward departure from the lodestar fee
should be applied due to the limited result obtained, and
that certain of Plaintiff's expenses for which she seeks
reimbursement are unreasonable.
asserts that the Attorney Nelson's hourly rate should be
reduced to $275 and that Attorney Towe's rate should be
reduced to $205. Without proposing a specific reduction,
Defendant maintains that Attorney Swiney's hourly rate
should be “significantly reduced.” [Doc. 104 at
10]. Defendant claims that the requested rate for Attorneys
Nelson and Towe are unreasonable when compared to recent
awards in similar cases and that Attorney Swiney's rate
is unreasonable given her years of experience. Defendant also
asserts that Plaintiff seeks fees for an unreasonable amount
of time related to preparing the EEOC charge as well as
Plaintiff's ADA claims. Defendant specifically challenges
the 1.7 hours claimed for preparing the EEOC charge, the 7.4
hours for preparing standard discovery requests, and the 3.3
hours for preparing a reader of a deposition at trial.
[Id. at 10-11].
further argues that the fees for unrelated and unsuccessful
claims should be excluded, claiming that Plaintiff's FMLA
retaliation claims and claims under Tennessee common law and
the TPPA are legally and factually distinct from the ADA
discrimination claim. [Id. at 11-14]. Specifically,
Defendant requests that the hours billed for drafting the
complaint be reduced from 7.9 hours to 4 hours, and the time
billed for reviewing and responding to Defendant's motion
for judgment on the pleadings (4.6 hours total) be excluded
because Plaintiff was unsuccessful. [Id. at 14].
Additionally, Defendant asserts that Plaintiff's
requested fees related to her failure to accommodate claim
under the ADA are not reasonable, as Plaintiff did not
request an accommodation. [Id. at 14-16]. Therefore,
Defendant requests that 25 hours out of the 98.6 hours billed
for preparing Plaintiff's motion for summary judgment and
responding to Defendant's motion be excluded and that 40%
of the hours billed for Plaintiff's appeal be reduced
because the Sixth Circuit rejected Plaintiff's request
for summary judgment and remanded the case for trial on the
single claim of discrimination under the ADA.
Defendant asserts that Plaintiff's lodestar fee should be
reduced by 35% due to the limited result obtained. Defendant
argues that the relevant settlement negotiations as well as
the fact that the jury did not award compensatory or punitive
damages constitute limited success. [Id. at 16].
Further, Defendant claims that this reduction follows
precedent set by this Court in Pittington v. Great Smoky
Mountain Lumberjack Feud, LLC, No. 3:14-cv-397, wherein
the Court reduced the lodestar amount after a plaintiff
asserting discrimination claims obtained a limited result of
only back pay. [Id. at 18]. Defendant also claims
that Plaintiff seeks reimbursement for unreasonable expenses,
including mediation fees and meals during depositions.
[Id. at 19].
filed a Reply [Doc. 110] objecting to the requested reduction
of the lodestar amount, asserting that the Defendant
improperly equates success with the amount of the verdict.
Plaintiff maintains that she achieved complete success
because the jury awarded the full measure of economic damages
and that the lodestar amount should be reduced only in rare
and exceptional cases. [Id. at 2, 15]. With regard
to attorney's fees, Plaintiff claims that the Defendant
has not countered her evidence of the prevailing market rate
and failed to challenge the declarations of the five
attorneys who testified as to the reasonableness of the fees.
[Id. at 10-13]. Further, Plaintiff contends that her
attorneys should be compensated for all hours billed and
challenges Defendant's argued reduction of fees for her
state law and FMLA claims. Plaintiff asserts that she
succeeded on the only claim she took to trial and that all
claims were based upon a common nucleus of facts.
[Id. at 3-5]. Finally, Plaintiff argues that
Defendant misrepresented past settlement negations, asserting
that Defendant continually refused to engage in settlement
negations, only to offer a $145, 000 settlement during trial.
[Id. at 6-7].
then filed a Supplemental Declaration [Doc. 111] detailing
additional attorney's fees for services rendered from
June 4, 2018 through August 29, 2018. Overall, Plaintiff
states that an additional 75.7 hours of work were performed,
for an additional $24, 602.50 in attorney's fees.
Defendant filed a Response [Doc. 112], claiming that the
requested hourly rate and number of hours are unreasonable.
Defendant asserts that Plaintiff's rate for this time
period should be modified to $275 per hour and that the
requested number of hours should be reduced by 50%.
requests [Doc. 95] $6, 172.52 in prejudgment interest for the
operative time period of February 21, 2014 through June 4,
2018. Plaintiff claims that the requested 5% prejudgment
interest rate, compounded annually, is reasonable due to the
case-specific factors that the Court must consider when
determining the rate of prejudgment interest. Ultimately,
Plaintiff asserts that the requested rate is necessary to
fulfill the remedial goal of the ADA and prohibit Defendant
from benefitting from its wrongdoing. Plaintiff also points
to this District's recent holding in Bristol
Anesthesia Servs. v. Carilion Clinic Medicare Res., No.
2:15-cv-17, 2018 WL 2976289 (E.D. Tenn. June 13, 2018), where
the Court held that a 5% prejudgment interest rate is fair to
compensate the plaintiff “for the loss of use of the
amount wrongfully withheld” by the defendant over a
four-year period. Id. at *4.
responded in opposition [Doc. 103] to Plaintiff's Motion
for Prejudgment Interest. While acknowledging that the Court
has discretion to award prejudgment interest [Id. at
3], Defendant asserts that Plaintiff's motion should be
dismissed because Plaintiff failed to present evidence
regarding any alleged windfall to Defendant arising from a
failure to pay her wages and benefits. [Id. at 7].
Further, Defendant maintains that Plaintiff's requested
5% interest rate “unjustly enriches her by more than
doubling the CPI and the earned interest necessary to make
her whole.” [Id. at 6]. Defendant argues that
Plaintiff failed to present any evidence that she would have
or could have earned 5% interest on the award and that an
interest rate of 2.27% compounded annually for 4.3 years, for
a total amount of $2, 690.59,  would make Plaintiff whole.
[Id. at 5-6]. Defendant bases this rate on the
postjudgment interest statutory framework set forth in 28
U.S.C. § 1961. While Defendant acknowledges that the
Court may not mechanically apply the postjudgment interest
rate, Defendant argues that after a consideration of all
case-specific factors, this rate provides Plaintiff with the
same purchasing power as if she received the entire amount in
February 2014. [Id.].
filed a Reply to Defendant's Response [Doc. 109],
claiming that Defendant's arguments regarding various
rates incorrectly attempt to require her to show proof as to
how she would have invested the amount received. Plaintiff
further urges that the application of an interest rate lower
than inflation would be wholly insufficient. [Id. at
may award reasonable attorney fees, litigation expenses, and
costs to the prevailing party in a discrimination action
In any action or administrative proceeding commenced pursuant
to this chapter, the court or agency, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney's fee, including litigation expenses,
and costs, and the United States shall be liable for the
foregoing the same as a private individual.
42 U.S.C. § 12205; see also Hamlin v. Charter Twp.
of Flint, 165 F.3d 426, 437 (6th Cir. 1999). Whether
fees are awarded is a matter within the Court's
discretion. See 42 U.S.C. § 12205.
prejudgment interest awards are within the trial court's
discretion. EEOC v. Wooster Brush Co. Employees Relief
Ass'n, 727 F.2d 566, 579 (6th Cir. 1984). Such
awards represent restitution for losing the use of money from
the time of injury to the vindication of the right in a court
of law. Prejudgment interest is usually appropriate to help
make victims of discrimination whole. See EEOC v. Wilson
Metal Casket Co., 24 F.3d 836, 842 (6th Cir. 1994).
Court will analyze each of Plaintiff's claims, in turn.
prevailing party, Plaintiff requests that she be awarded
attorney fees as contemplated by the ADA. The determination
for this Court is whether the requested amount of
attorney's fees is reasonable. In making this
determination, courts start with the “lodestar method,
” which is “the proven number of hours reasonably
expended on the case by the attorney, multiplied by a
reasonable hourly rate.” Jordan v. City of
Cleveland, 464 F.3d 584, 602 (6th Cir. 2006); Isabel
of Memphis, 404 F.3d 404, 415 (6th Cir. 2005). “To
arrive at a reasonable hourly rate, courts use as a guideline
the prevailing market rate, defined as the rate that lawyers
of comparable skill and experience can reasonably expect to
command within the venue of the court of record.”
Geier v. Sundquist, 372 F.3d 784, 791 (6th
Cir. 2004). The party seeking an award of fees bears the
burden of submitting sufficient evidence supporting the hours
worked and rates claimed. Gonter v. Hunt Valve
Co., Inc., 510 F.3d 610, 617 (6th Cir. 2007).
reasonableness of the hours and the rate is determined by
considering twelve factors:
(1) time and labor required; (2) the novelty and difficulty
of the questions presented; (3) the skill needed to perform
the legal service properly; (4) the preclusion of employment
by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent;
(7) time and limitations imposed by the client or the
circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case;
(11) the nature and length of the professional relationship
with the client; and (12) awards in “similar
Isabel at 415-16. “‘[T]he most critical
factor' in determining the reasonableness of a fee award
‘is degree of success obtained.'” Farrar
v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley
v. Eckerhart, 461 U.S. 424, 436 (1983)). Where a
plaintiff has obtained excellent results, his attorney should
recover a full compensatory fee; if a plaintiff obtains
“limited success, the district court should award only
that amount of fees that is reasonable in relation to the
success obtained.” Isabel, 404 F.3d at 416
(quoting Hensley, 461 U.S. at 435). It is noted,
however, that the Sixth Circuit Court of Appeals has
“repeatedly rejected mechanical reductions in fees
based on the number of issues on which a plaintiff has
prevailed.” Deja Vu v. Metro. Gov't of
Nashville & Davidson County, Tenn., 421
F.3d 417, 423 (6th Cir. 2005). Rather, the Sixth Circuit has
[A] court should not reduce attorney fees based on a simple
ratio of successful claims to claims raised. When claims are
based on a common core of facts or are based on related legal
theories, for the purpose of calculating attorney fees they
should not be treated as distinct claims, and the cost of
litigating the related claims should not be reduced.
Id. (quoting Thurman v. Yellow Freight Sys.,
Inc., 90 F.3d 1160, 1169 (6th Cir. 1996) (citation
the above analysis in mind, the Court will turn to
Plaintiff's request for attorney's fees in the
instant matter and the Defendant's objections thereto.
following is a summary of Plaintiff's request for fees:
Hours Incurred through 6/1/18
Jesse D. Nelson (Attorney)
Kayla L. Towe (Attorney)
Kayla M. Swiney (Served in attorney and paralegal
$200 - attorney $85 -paralegal
$11, 800.00 $2, 133.50
Karl a Gander and
[See Docs. 98-1 at 30 and 111-1 at 4].
initial matter, Defendant does not challenge the paralegal
hourly rate of $85, and the Court finds that rate to be
reasonable. Defendant argues, however, that the hourly
rates requested for Attorneys Nelson, Towe, and Swiney are
unreasonable. Defendant requests that Attorney Nelson's
requested hourly rate of $325 be reduced to $275, Attorney
Towe's hourly rate of $250 be reduced to $205, and that
Attorney Swiney's hourly rate of $200 be
“significantly reduced.” [Doc. 104 p. 10].
determining the appropriate hourly rate to apply, the
district court must consider the prevailing market rate in
the relevant community, which for fee purposes, is the legal
community within the court's territorial jurisdiction or
venue. Brooks v. Invista, No. 1:05-cv-328, 2008 WL
304893, at *3 (E.D. Tenn. Jan. 30, 2008) (citing
Adcock-Ladd v. Sec'y of the Treasury, 227 F.3d
343, 349 (6th Cir. 2000)). It should be at a rate
“necessary to cause competent legal counsel to perform
the work required.” EEOC v. Dolgencorp, LLC,
277 F.Supp.3d 932, 966 (E.D. Tenn. 2017). The appropriate or
reasonable hourly rate “may not, however, exceed the
amount necessary to cause competent legal counsel to perform
the work required.” Id. (citing Coulter v.
Tennessee, 805 F.2d 146, 148 (6th Cir. 1986),
abrogated on other grounds by, The Ne. Ohio
Coal. for the Homeless v. Husted, 831 F.3d 686 (6th Cir.
2016)); see also Lamar Adver. Co. v. Charter Township of
Van Buren, 178 Fed.Appx. 498 (6th Cir. 2006)
(“Even if it would be reasonable to award [plaintiff]
$370 per hour, the record supports the district court's
conclusion that $200 per hour is sufficient to encourage
competent lawyers in the relevant community to undertake