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Vaughn v. Parkwest Medical Center

United States District Court, E.D. Tennessee, Knoxville

February 15, 2019

LORI VAUGHN, Plaintiff,
v.
PARKWEST MEDICAL CENTER, Defendant.

          REPORT AND RECOMMENDATION

          Debra C. Poplin United States Magistrate Judge

         This 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.

         Now 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.

         The 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.

         Accordingly, 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 interest.

         I. BACKGROUND

         Plaintiff 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].

         The 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 ¶ 17].

         The 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], [1] 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, [2] and 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 entered.

         After 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.

         II. POSITIONS OF THE PARTIES

         A. 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.[3] [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.

         In 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].

         For 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].

         For 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. at 30].

         In 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].

         Plaintiff 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. [Id.].

         For litigation costs, Plaintiff requests $7, 917.21, of which $4, 831.58[4] was also claimed by Plaintiff as part of her Bill of Costs [Doc. 94].[5] 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.

         Defendant 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.

         Defendant 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].

         Defendant 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.

         Lastly, 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].

         Plaintiff 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].

         Plaintiff 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%.

         B. Prejudgment Interest

         Plaintiff 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.

         Defendant 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, [6] 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.].

         Plaintiff 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 4].

         III. ANALYSIS

         A court may award reasonable attorney fees, litigation expenses, and costs to the prevailing party in a discrimination action under ADA:

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.

         Similarly, 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).

         The Court will analyze each of Plaintiff's claims, in turn.

         A. Attorney's Fees

         As the 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 v.

         City 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).

         The 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 cases.”

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 stated that:

[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 omitted)).

         With 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.

         The following is a summary of Plaintiff's request for fees:

Attorney/Paralegal

Rate Requested

Hours Incurred through 6/1/18

Hours

Incurred

after 6/4/18

Total Fee

Jesse D. Nelson (Attorney)

$325

611.60

75.7

$223, 372.50

Kayla L. Towe (Attorney)

$250

130.70

$32, 675.00

Kayla M. Swiney (Served in attorney and paralegal role)

$200 - attorney $85 -paralegal

59 25.10

$11, 800.00 $2, 133.50

Karl a Gander and

Ashley James

(Paralegals)

$85

17.8

$1, 513.00

844.20

75.7

$271, 494.00

[See Docs. 98-1 at 30 and 111-1 at 4].

         1. Hourly Rates

         As an initial matter, Defendant does not challenge the paralegal hourly rate of $85, and the Court finds that rate to be reasonable.[7] 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[8] be “significantly reduced.” [Doc. 104 p. 10].

         In 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 legal representation.”).

         a. ...


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