Dumas v. Tyson Foods, Inc. , 139 F. Supp. 2d 1243 ( 2001 )

MEMORANDUM OPINION GRANTING ATTORNEYS’ FEES AND EXPENSES

CLEMON, Chief Judge.

This case started in December of 1993. It was tried for five days in October-November of 1995. Plaintiff prevailed at trial. Defendant’s appeal and Plaintiffs cross-appeal to the Eleventh Circuit were unsuccessful.

The case has been hotly contested, from beginning to end. Several motions for sanctions have been filed. At one point, Defendant sought to depose Plaintiffs attorneys. Defendant unsuccessfully sought a writ of mandamus against the judge. Counsel for both parties have at times unreasonably pursued or resisted discovery.

The Court held a hearing on Plaintiffs application for attorneys’ fees in April of 1998, and partial attorneys’ fees were awarded at that time. In this Opinion, the Court disposes of the remaining aspects of the attorneys’ fees application.

I. Plaintiffs Efforts and Success

Brought and maintained by the then-discharged Plaintiff individually, had this case been certified as a class action, it could not have been more beneficial to Defendant’s female workforce. At trial, Plaintiff exposed outrageous conduct directed at female workers by male workers and supervisors in the workplace at Defendant’s chicken plant in Blountsville, Alabama. The jury was so moved by the reprehensibility of the workplace atmosphere that it returned a punitive damage award of $8,000,000 against Defendant. Plaintiff individually obtained all the relief that she could legally and equitably obtain under 42 U.S.C. § 2000e et seq. (“Title VII”) — reinstatement, $823,000 in compensatory and punitive damages. On November 3, 1995, Defendant, its “managers, supervisors, employees, and those in active concert and participation with them [were] PERMANENTLY ENJOINED from maintaining the existence of a sexually hostile work environment for the female employees_” (Fin. Judgmt. & Perm. Inj. at 1.)

But before the ink was dry on the first Injunction, Defendant began retaliating against some of Plaintiffs trial witnesses. Plaintiffs counsel was obliged to file a Motion for an Order to Show Cause. On November 8, 1995, the Court held an evi-dentiary hearing on Plaintiffs Show Cause Motion.

Based on the evidence adduced at the Show Cause hearing, the Court issued, on the same day, an Anti-Retaliation Injunction against Defendant, permanently enjoining it from retaliating against Plaintiff and other employees because of their “direct or indirect support of plaintiffs position in this case or their opposition to perceived unlawful employment practices based on sex at [Defendant]^ Blountsville Plant.” (Anti-Retaliation Inj. at 1.) Defendant was ordered to post the following Notice at each of the time clocks, bulletin boards, management offices, break rooms, and eating facilities of the Blountsville facility. Because the Notice is fairly descriptive of what this lawsuit was about and what it achieved, the Notice is reproduced here:

In 1993, a former worker of the Company, Ms. Janice Dumas, filed a lawsuit claiming that the workplace here at Tyson is unfair, insulting, embarrassing, disrespectful, and humiliating for the female workers. This is what is known in law as a claim of a “sexually hostile work environment.” A sexually hostile work environment is unlawful. The case was tried by a federal court jury in Birmingham in November 1995.

Mrs. Dumas won the case.

Federal Judge U.W. Clemon has now issued a court order telling the Company to stop and discontinue any actions that discriminate against women on the basis of sex. This means that in the future, the men workers and supervisors must treat the women workers just as they would want their mothers and sisters to be treated on a job. If Tyson does not follow the court order, it will be held in contempt of court and it may be exposed to a heavy fine or its managers may be sent to jail.

From now on, ANY MALE SUPERVISOR OR EMPLOYEE WHO SUBJECTS A FEMALE WORKER TO SEXUAL HARASSMENT IN THE WORKPLACE (including production lines, break rooms, cafeteria, restrooms) WHETHER BY WORDS (such as “bitch,” “whore,” “sweetheart,” or “darling”) OR CONDUCT (such as touching a woman’s body, embracing her, kissing her, exposing his private parts, simulating a sex act by use of chicken parts or otherwise) WILL BE PROMPTLY REPRIMANDED, SUSPENDED, AND/OR FIRED. Any such supervisor or employee may also be held in contempt.

Also, THE COMPANY WILL PROMPTLY REPRIMAND, SUSPEND, OR FIRE ANY EMPLOYEE, MALE OR FEMALE, WHO THREATENS, ABUSES, OR INTIMIDATES AN EMPLOYEE WHO EITHER TESTIFIED FOR MRS. DUMAS OR SUPPORTED HER CASE. It is unlawful and a violation of the court order to retaliate against anyone because he or she helped another person on a sex discrimination claim.

$ $ ‡ $ H* ❖

THE COMPANY ENCOURAGES ANY FEMALE WORKER WHO FEELS THAT SHE HAS BEEN HARASSED, RETALIATED OR OTHERWISE DISCRIMINATED AGAINST BECAUSE OF HER SEX, OR ANYONE WHO IS A WITNESS TO SEXUAL HARASSMENT OR DISCRIMINATION TO MAKE A COMPLAINT DIRECTLY TO THE PLANT MANAGER OR SHIFT MANAGER. NO ONE WILL BE TREATED DIFFERENTLY BECAUSE HE OR SHE HAS MADE SUCH A COMPLAINT.

Id.

Thus, this litigation achieved all the relief that the law provides in terms of transforming Defendant’s pervasive sexually hostile work environment into one which accords respect to the basic humanity of its female workers.

II.' Reasonable Hourly Rates

Alicia Haynes has practiced law in the Northern District of Alabama since 1987, specializing in employment cases. If Haynes had been retained to represent a Title VII defendant in 1998, she would have billed at an hourly rate of $175-190. Because she worked on a contingency basis and achieved significant results, the Court finds that a reasonable hourly rate for her is $215, in light of similar awards made by this judge in similar cases.

Larry Mann has practiced in the Northern District of Alabama since 1992. Before entering private practice, he had worked for a decade in a paralegal capacity with two law firms specializing in plaintiffs’ cases. As co-counsel with Haynes, he successfully represented a plaintiff in another employment case in this Court, which resulted in a jury verdict of $887,000. If Mann had been retained to represent a Title VII defendant in 1998, he would have billed at $150—160 hourly. The contingency of his fee arrangement, similar awards by this judge, and success factors of Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974), justify an upward adjustment of his hourly rate to $190.

Attorneys’ travel time should be compensated at an hourly rate of $100.

Elizabeth R. Jones has practiced law for nearly two decades. She specializes in appellate work. Rejecting out of hand Defendant’s contention that she should be compensated at the rate of $100 hourly, (Def. Obj. to Pla.’s App, for Attys Fees, at 25), the Court finds that a reasonable hourly rate for her services is $225.

Wendy Nix Thornton was a third-year law student in Alicia Haynes’ firm when she provided services in this case as a Title VII litigation assistant, effectively a paralegal. A reasonable hourly rate for her services is $30.

Beth Gann is a paralegal in Alicia Haynes’ office, having received her baccalaureate degree in paralegal studies from Samford University. Before her employment by Haynes & Haynes, she worked at two of the major law firms in the Northern District of Alabama. The Court finds that a reasonable hourly rate for her services is $60.

III. Hours Reasonably Expended

Presumably after exercising their billing judgment, counsel for Defendant billed their client for 3,662.87 hours for representation in this case. Plaintiffs attorneys have sworn to the Court that they have reasonably expended 4,121 hours in the successful prosecution of this case. On its face, the number of hours claimed by Plaintiffs counsel is not unreasonable. After all, as a general proposition, it takes more effort to win than it takes to lose. Nonetheless, the Court has carefully considered each of Defendant’s myriad objections. Upon such deliberate consideration, the Court’s conscience is soothed, rather than shocked. Cf. Fair Housing Council of Greater Washington v. Landow, 999 F.2d 92 (4th Cir.1993); Lewis v. Kendrick, 944 F.2d 949 (1st Cir.1991); Brown v. Stackler, 612 F.2d 1057 (7th Cir.1980).

As reflected in Attachment “A,” the Court has in part sustained the Defendant’s objections and reduced the claimed hours, which in the Court’s “Monday morning quarterbacking,” appear to be redundant, excessive, or inadequately documented or explained. It has disallowed the hours that were exclusively expended in pressing Plaintiffs claim against Defendant Brumblow in his individual capacity and the state law claims. It has disallowed the time expended on Plaintiffs unemployment compensation claim. It has disallowed the hours claimed for Title VII seminars. It has disallowed the hours attributable to the failure of Plaintiffs counsel to initially comply with the page limitations of the Eleventh Circuit. Moreover, it has reduced the time allocable to Plaintiffs unsuccessful cross-appeal. As a result, the Court has reduced the total hours claimed to a number below that expended by Defendant’s counsel — so that in this case, the Court finds that it took fewer hours to win than it took to lose.

Defendant makes too much of Plaintiffs state law claims. All of the evidence heard by the jury on the state law claims was entirely relevant to the Title VII claim of a hostile work environment. If Defendant’s supervisor Jimmy Brumblow had not been sued by Plaintiff for violations of the laws of Alabama in this case, Plaintiff would have offered to the jury his same uncivilized conduct which contributed substantially to an unbelievably hostile work environment for female employees at Tyson. It was a “same evidence anyway” presentation, with or without the state law claims and the individual claims against Jimmy Blumblow. The same operative facts were involved. See Davis v. Locke, 936 F.2d 1208, 1214 (11th Cir.1991).

Defendant also overlooks that while several of Plaintiffs witnesses had separate claims, the evidence that they presented at the trial of this case bore directly on the existence vel non of a sexually hostile work environment. It is completely irrelevant that subsequently they may have used some of this evidence in their individual cases against Defendant.

Alicia Haynes has claimed 2057.6 hours in this case. Based on Defendant’s objections, the Court has disallowed 85.50 of her claimed hours, and it has disallowed 35 hours (travel time) at the lodestar rate. See Attachment “A” at 1250, infra. It has disallowed a fourth (61 hours) of her appellate hours based on the unsuccessful cross-appeal. The Court will credit an additional four hours for her preparation and participation at the hearing on attorneys’ fees. The Court finds that she has reasonably expended 1880.10 regular hours in the prosecution of this case, and that she has expended 35 hours of travel time.

Larry Mann claims a total of 1651.5 hours in this case. Based on Defendant’s objections, the Court has disallowed 447.45 of those hours. Id. It has disallowed another 35 of those hours (travel hours) at the lodestar rate! It has disallowed 3.75 of his appellate hours as duplicative or unsatisfactorily explained, and it reduced his appellate hours by a fourth (40 hours) because of the cross-appeal. The Court will credit an additional four hours for his preparation for and participation in the hearing on attorneys’ fees. The Court finds that he has reasonably expended 1129.30 regular hours in the prosecution of this case and that he has expended 35 hours in travel time.

Wendy Nix claims 265.95 hours in this case. The Court has disallowed 9.50 of those hours, based on Defendant’s well-founded objections. Id. She is entitled to 256.45 hours.

Elizabeth Jones claims 147 hours for her trial and appellate work in this case. Based on Defendant’s objections, the Court has disallowed 5 hours (state law claims) of her claimed time in the district court; 11.75 of her appellate hours (reediting the appellate brief to conform to the Appellate Rules); and another 27.5 hours (for time allocable to the cross-appeal). She is allowed 102.7 hours for her work in this case.

Alicia Haynes claims 694.5 hours for her paralegal, Beth Gann. The Court finds merit in Defendant’s objections to 16.90 of those hours. The Court finds that Gann reasonably expended 677.60 hours of paralegal service.

At the conclusion of the attorneys’ fee hearing in April of 1998, based on the number of hours stipulated by Defendants, Alicia Haynes was paid $175,000 and Larry Mann $125,000 by Defendant, pursuant to the order of the Court.

In summary, the Court finds 3314.80 hours to have been reasonably expended in the prosecution of this case, allocated as follows:

Alicia Haynes.1880.10 regular hours plus 35 hours travel time

Larry Mann...._1129.30 regular hours plus 35 hours travel time

Elizabeth Jones.... 102.7 regular hours

The Court finds that Beth Gann reasonably expended 6777.60 hours and that Wendy Nix Thornton reasonably expended 256.45 hours in assisting the Plaintiffs lawyers.

IV. Interest/Enhancement For Delay

Plaintiffs counsel are entitled to a reasonable rate of interest on the attorneys’ fees that are owed to them. Defendant has had actual use of the principal sum since April of 1997 and/or the opportunity of earning a reasonable rate of interest on it. The Court finds that a 7% compound interest rate should be utilized — resulting in a 22% enhancement.

V. Costs

Plaintiff seeks $34,206.37 in her Bill of Costs. The Court has disallowed many of the items. See Attachment “B” at 41 infra.

The Court allows witness fees for all summoned witnesses, regardless of whether they actually testified at trial. It approves the claim for enlargements (“blow-ups”) of exhibits used at trial. It allows for the copying costs of papers necessarily obtained for use in the case, but it disallows the copying costs of general filed pleadings, such as Plaintiffs Proposed Rule 26 Disclosures. It approves the deposition expenses for deponents who testified at trial; it disallows them for deponents who did not testify at trial. It approves Mark McKnight’s fee for obtaining the order quashing deposition notices served on Plaintiffs counsel. It approves Plaintiffs counsel’s mediation expenses. It allows the costs for service of subpoenas on witnesses who would not produce or accept service. The Court disallows the expert witness fee, the filing fee for cross-appeal, and the Westlaw research fee.

The Court concludes that costs in the amount of $23,508.85 should be taxed against Defendant.

Conclusion

By separate order, the findings incorporated in this Memorandum Opinion will be embodied in a Final Judgment Awarding Attorneys’ Fees and Costs.

Attachment “A” DISPOSITION OF DEFENDANTS’ OBJECTIONS TO HOURS CLAIMED

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Items Claimed Total Amount Claimed Disposition Plaintiffs Motion to Hold Don Tyson in Contempt $8.80 Disallowed Plaintiffs Motion to Conduct Discovery on Attorney Fee Issue & Motion to Compel $9.60 Disallowed Plaintiffs Response to Torberf s Objection to Subpoena $2.40 Disallowed Plaintiffs Response to Tyson’s Response to Preliminary Injunction $2.40 Disallowed Plaintiffs Response to Tyson’s Request to Investigate Contempt of Don Tyson $2.40 Disallowed Plaintiffs Response to Defendant’s Interrogatories & Request for Production of Documents $11.20 Allowed Alicia K. Haynes’ Response to Defendant’s Subpoena $24.00 Allowed Larry R. Mann’s Response to Defendant’s Subpoena $5.60 Allowed Plaintiffs Response to Tyson’s Response to Plaintiffs Motion to Engage in Discovery $4.00 Allowed

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TOTAL AMOUNT ALLOWED: $23,508.35

FINAL JUDGMENT AWARDING ATTORNEYS’ FEES AND COSTS

Based on the accompanying Memorandum Opinion, FINAL JUDGMENT on Plaintiffs application for attorneys’ fees and expenses is hereby ENTERED as follows:

1. Alicia Haynes, Esq. shall have and recover of Defendant, in addition to the partial fee previously received, a total of Three Hundred Thirty Eight Thousand Three Hundred Five and 02/100 Dollars ($338,305.02) as a reasonable attorney’s fee and prejudgment interest, representing $280,806.18 for her personal services, $7,693.50 for the legal services of Wendy Nix Thornton, and $49,805.34 for the paralegal services of Beth Gann.

2. Larry Mann, Esq. shall have and recover of Defendant, in addition to the partial fee previously received, the sum of One Hundred Nine Thousand Seven Hundred Twenty-Three and 41/100 Dollars ($109,723.41) as a reasonable attorney’s fee and prejudgment interest.

8. Elizabeth Jones, Esq. shall have and recover of Defendant the sum of Twenty-eight Thousand Three Hundred Seven and 50/100 Dollars ($28,307.50) as a reasonable attorney’s fee and prejudgment interest.

4. Plaintiff shall have and recover of Defendant the sum of Twenty-three Thousand Five Hundred Eight and 35/100 Dollars ($23,508.35) as reimbursement for her costs reasonably and necessarily incurred in the litigation of this case.