DEBORAH L. PARKER v.BANNER SOLUTIONS, INC., : PAUL SIRPENSKI, JAY DELAPLAIN and OVERHEAD DOOR CO.OF PROVIDENCE, INC. No. PC/
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC.
SUPERIOR COURT
(FILED – AUGUST 9, 2007)
DEBORAH L. PARKER
v.
BANNER SOLUTIONS, INC.,
PAUL SIRPENSKI, JAY DELAPLAIN
and OVERHEAD DOOR CO.
OF PROVIDENCE, INC.
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No. PC/02-558
DECISION
REGARDING ATTORNEYS FEES AND COSTS
LANPHEAR, J.
Deborah L. Parker commenced this action against her former employers and
supervisors seeking recovery of damages for an alleged violation of the Rhode Island Fair
Employment Practices Act. Successful in her request for back pay on the constructive discharge
count, she now moves for the award of attorneys’ fees and costs.
The primary goal in awarding fees in employment discrimination actions is to establish
fees encouraging victims to seek judicial relief. Copeland v. Marshall, 641 F.2d 880, 891 (D.C.
Cir., 1980). To be eligible, a plaintiff must be a “prevailing party”; that is, if “they succeed on
any significant issue in litigation which achieves some of the benefit the parties sought. Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting the First Circuit Court of Appeals). That is the
situation at bar as Ms. Parker was found to have been constructively discharged and received an
award accordingly.
Attorneys Rates
Hensley set certain guidelines for calculating a reasonable attorney's fee under § 1988 noting
"[the] most useful starting point for determining the amount of a reasonable fee is the number
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of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 433.
The rate commonly referred to as the "lodestar," is presumed to be the reasonable fee
contemplated by § 1988. To obtain this rate, the Supreme Court quoted the factors used by the
Circuit Courts:
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite 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 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. Hensley at 430, footnote 3.
Plaintiff’s memorandum reviews recent awards in other Rhode Island cases, some of them
involving the same counsel for plaintiff. Mrs. Parker requests hourly fees of $200 per hour for
Mr. Robert Savage (lead trial counsel), $150 per hour for time worked at trial by Mr. Richard
Savage, and $80 per hour for travel and paralegal type tasks.
None of the parties have submitted affidavits that either verify or question this rate as
acceptable for Providence area attorneys, but for Mrs. Parker’s review of awards in recent,
similar Providence cases, and the affidavits of Mrs. Parker’s attorneys.
Specifically, the
defendants have failed to proffer any affidavit as to the market rate. The Court is cognizant of
fees charged by attorneys in other firms in Providence. This information is available from a
review of articles in Rhode Island Lawyer’s Weekly, (e.g. 27 RILW 758, April 30, 2007) and
from fee requests in other cases. A $200 hourly fee is quite modest.
Though Mrs. Parkers’ counsel work in a small, suburban firm, this does not deem them
less qualified.
Rather, attorneys who work in smaller firms must be highly dedicated to their
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tasks. They have more at risk as a larger quantity of the firm’s business may be dedicated to a
substantial case. If an attorney demonstrates the skill and ability, he should not be penalized for
practicing in a smaller firm. Robert Savage has over 15 years of experience in employment
discrimination law.
He has significant litigation experience, appearing regularly before this
Court on many of its civil calendars. Richard Savage has 12 years of such experience. If an
attorney demonstrates the skill and ability, he should not be penalized for working in a smaller
enterprise.
The Court finds the hourly rates requested ($200 for Robert Savage, $150.00 per hour for
Richard Savage and $80.00 per hour for travel and paralegal tasks) to be a fair and appropriate
rate in accord with the local attorney market.
Attorneys’ Hours
Plaintiff’s counsel generated extensive time runs, documenting work done from the onset
of their involvement with this case. As the case was apparently received from another attorney,
and no other attorney has timely applied for compensation, no other compensation shall be
awarded but for that requested of Mr. Robert Savage and Mr. Richard Savage. The time
submitted by Mrs. Parker’s counsel was backed by sworn affidavits, and there is no other proof
before the Court contesting the hours. Nevertheless, defendants raise a number of objections to
the time submitted.
First, defendants claim that the fees should be reduced as Ms. Parker’s success was
limited as she did not succeed on all of her claims. (Defendants’ memorandum at p. 3.) She
recovered lost wages for a constructive discharge, but after a contested, lengthy trial, she was not
awarded any other compensatory damages.
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Unlike Shoucair v. Brown University, P.C. No. 96-2896, 2004 R.I. Super. LEXIS 162
(September 9, 2004), (reversed on other grounds), where plaintiff’s attorneys claimed their fees
should be increased because of their success, defendants here argue the fees should be reduced
because of Ms. Parker’s limited success.
She prevailed on the claim of hostile work
environment, is a prevailing party and is entitled to fees. R.I.G.L. § 28-5-24. While the jury
found for Ms. Parker only on one element of damages, it awarded her significant damages. The
Court does not consider Ms. Parker to be a plaintiff who achieved mere limited success. Rather
this Court finds that Ms. Parker obtained good and significant, though not excellent, results.
Defendants suggest that the hours spent on the unsuccessful claim cannot be “teased out”
(Defendants’ memorandum at p. 4), and hence a percentage reduction is appropriate. Defendants
assert that Mrs. Parker’s counsel failed to follow the Hensley admonition to “keep records in
such a manner as will allow a court to identify distinct claims.” (citing Hensley footnote 12)
(Defendants’ memorandum at p. 5.)
Hensley sets no such requirement, but analytically accepts the complex demands of
preparing a case for trial:
We recognize that there is no certain method of determining when
claims are “related” or “unrelated.” Plaintiff’s counsel, of course,
is not required to record in great detail how each minute of his time
was expended. But at lease counsel should identify the general
subject matter of his time expenditures.…”
Hensley at 437,
footnote 12.
Mrs. Parker’s counsel has met the obligations of Hensley. They have explained what they were
doing and when they were doing it. Recordings which may be too vague are explained further
below. However, there is no requirement that they specifically identify what count they are
working on, for preparation of a case necessarily involves working on several counts at a time.
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Hensley stands for a different proposition than which it is cited. “Litigants in good faith
may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure
to reach certain grounds is not a sufficient reason for reducing a fee.”1 The counts raised in the
Complaint here flow from the same facts and similar legal premises. The counts raised were all
reasonable for prosecution and trial, given the positions of the respective parties throughout.
None of the claims can fairly be labeled as nonmeritorious. The claims are not such that would
lead to an appropriate differentiation of counsel’s work. Accordingly, this Court denies the
defendants’ attempts to apply a downward adjustment based on Mrs. Parker’s partial success.
The more appropriate approach is to review each expenditure, viewing counsels’ work as a
continuing, consolidated effort.
1
More completely stated, the case held:
Where a plaintiff has obtained excellent results, his attorney should recover a fully
compensatory fee. Normally this will encompass all hours reasonably expended on the litigation,
and indeed in some cases of exceptional success an enhanced award may be justified. In these
circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on
every contention raised in the lawsuit. See Davis v. County of Los Angeles, supra, at 5049.
Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's
rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The
result is what matters.
If, on the other hand, a plaintiff has achieved only partial or limited success, the product of
hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an
excessive amount. This will be true even where the plaintiff's claims were interrelated,
nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it
was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case
with devotion and skill. Again, the most critical factor is the degree of success obtained.
Application of this principle is particularly important in complex civil rights litigation involving
numerous challenges to institutional practices or conditions. This type of litigation is lengthy and
demands many hours of lawyers' services. Although the plaintiff often may succeed in identifying
some unlawful practices or conditions, the range of possible success is vast. That the plaintiff is a
"prevailing party" therefore may say little about whether the expenditure of counsel's time was
reasonable in relation to the success achieved. In this case, for example, the District Court's award
of fees based on 2,557 hours worked may have been reasonable in light of the substantial relief
obtained. But had respondents prevailed on only one of their six general claims, for example the
claim that petitioners' visitation, mail, and telephone policies were overly restrictive, see n. 1,
supra, a fee award based on the claimed hours clearly would have been excessive.
There is no precise rule or formula for making these determinations. The district court may
attempt to identify specific hours that should be eliminated, or it may simply reduce the award to
account for the limited success. The court necessarily has discretion in making this equitable
judgment. This discretion, however, must be exercised in light of the considerations we have
identified. Hensley v. Eckerhart, 461 U.S. 424, 435-437 (U.S. 1983), footnotes and citations
omitted.
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The Court further finds that the claims advanced were inextricably related. The facts for
the claims of discrimination and hostile work environment were relevant to establish the ongoing
relationships of the parties. The Court finds that Ms. Parker's unsuccessful claims were related to
the claims on which she succeeded, and whether she achieved a level of success that makes it
appropriate to award attorney's fees for hours reasonably expended on unsuccessful claims. Her
claims for relief all involved a common core of facts (her treatment at Banner, the questionable
supervision and her discharge) and is based on closely related legal theories. It would be
impracticable, if not impossible, to divide the hours on a claim-by-claim basis. “Such a lawsuit
cannot be viewed as a series of discrete claims. Instead the district court should focus on the
significance of the overall relief obtained by the plaintiff in relation to the hours reasonably
expended on the litigation." Id. at 435. Hence, the litigation as a whole is a satisfactory basis for
determining a fee award.
Reasonableness
Next, defendants claim that Mrs. Parkers’ counsel fail to establish their time was
reasonable. Absent from this contention is any testimony or affidavits from defendants that
would question the bills. This is significant, given that Mrs. Parker’s counsel (two licensed
Rhode Island attorneys) have sworn to the validity of the bills under oath, already removing
undocumented and some questionable time. The importance of affidavits submitted to a court
are underscored in Scarborough v. Wright, 871 A.2d 937 (2005).
Defendants’ memorandum at page 7 claims that some of the “time entries are
inappropriately vague.” They claim that “preparation time” for a deposition or court testimony is
not specific enough. The Court finds such descriptions sufficiently descriptive except for 3.59
hours on February 1, 2006, and 2.9 hours on March 21, 2006.
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Defendants claim that Mrs. Parker’s counsel should not be reimbursed for “re-reading
materials.” (Defendants’ memorandum at p. 8.) Some of the charges were for time spent in
court anyway. Others were for review of cases which were pivotal to the proceedings at the
time. Reviewing deposition testimony of the client is obviously necessary. No such time will be
excluded.
Defendants next claim that Mrs. Parker’s counsel should not charge for clerical tasks.
(Defendants’ memorandum at p. 8.) This is appropriate work for a paralegal and charged at a
much reduced rate. No such time will be excluded.
Defendants next assert Mrs. Parker’s counsel should not be paid for travel time.
(Defendants’ memorandum at p. 9.) No specific entry is contested. Instead, defendants claim
the hourly rate should be reduced. Travel time is routinely allowed in other cases because it
takes time out of the attorney’s billable day. Here, the attorneys have already reduced their fees
appropriately and no such time will be excluded.
Defendants contend that Mrs. Parker’s counsel should not be reimbursed for
interviewing, locating and deposing witnesses and transcripts never utilized.
(Defendants’
memorandum at p. 10.) Preparation for a trial may reasonably require interviewing persons who
are not called to testify. Still, Mrs. Parker’s counsel has yet to show the significance of these
interviews and, therefore, the total time requested, 14.58 hours, is reduced by one-half to 7.29
hours. Included in the defendants’ analysis is time spent on legal research which is not reduced.
Defendants claim Mrs. Parker’s counsel should not be compensated for waiting in court
or for depositions to begin. (Defendants’ memorandum at pp. 12-13.) While the Court always
encourages attorneys to be productive and recognizes the challenges placed upon litigators,
obviously waiting for cases to be called or decided cannot always be avoided. As Mrs. Parkers’
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counsel accepts blame for misdirections or incorrect times, the Court will deduct 2 hours from
the total bill.
Defendants claim that Mrs. Parker’s counsel should not charge for time spent in
requesting or receiving extensions. (Defendants’ memorandum at pp. 13-14.) It is unclear who
requested the extension, why or whether it was reasonable. Therefore, the Court will reduce this
time by one-third, so 3.56 hours are deducted.
Defendants claim that Mrs. Parker’s counsel should not be reimbursed for jury
deliberation time. (Defendants’ memorandum at 14.) Although allowed to leave the room,
counsel was required to reappear promptly when the Court requested. The time spent waiting
was reasonable and will not be reduced.
Defendants seek a reduction for entries attributed to the fee application.
The fee
application necessarily involved legal research and preparation of many documents. After a
review of the documents prepared and an understanding of the issues involved, the Court will
reduce the fee application preparation to a total of 6 hours, but afford 2 more hours for time spent
on August 8, 2007, and not yet billed.
Defendants seek an award for the work of Richard Savage. The Court cannot determine
that one attorney would have been sufficient, as defendant suggests. Mrs. Parkers called separate
witnesses and needed to insure that documents and witnesses were ready as Mrs. Parker’s case
stretched over nine days. After viewing the attorneys during trial, the Court recognizes that Mr.
Richard Savage assisted at times, and took copious notes, but Robert Savage relied on his own
notes at all times. More significantly, Robert Savage would take notes during his questioning
which extended the time of his examinations significantly. Accordingly, rather than reducing
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Richard Savage’s time at a lower rate, the Court reduces Robert Savage’s hours by an additional
10 hours.2
Costs
Defendants object to Mrs. Parker’s requests for costs. The contested depositions objected
to were of defendants’ principals and necessary for trial. The parking fees requested were
reasonable given the length of the trial. An expert was retained for proof of pain and suffering.
Such damages were never awarded, though it was a reasonable tactical decision to request pain
and suffering and to call the expert. These costs will not be deducted. Transcripts for depositions
were also necessary. Filing fees in 2002 were $135 so the costs will be reduced by only $45.
CONCLUSION
From a review of the appended invoices, it is noted that many upfront expenses were
borne by Ms. Parker herself. The goal of the fee shifting statutes is obviously to reward such as
Mrs. Parker. As stated by Justice White, “The award of attorney's fees encourages vindication
of federal rights which, Congress recognized, might otherwise go unenforced because of the Mrs.
Parkers’ lack of resources and the small size of any expected monetary recovery.” Dennis v.
Higgins, 498 U.S. 439, 464 (U.S. 1991) (citations omitted.)
In addition to the back pay awarded by the jury, Ms. Parker is awarded $117,816.70 in
attorneys fees3 and $7152.57 in costs.
Counsel for Mrs. Parker shall prepare a judgment
consistent with this Decision and all other determinations of this Court.
2
In July, 2007, the Court issued a scheduling order, requiring all supporting documents for fees requests to be filed
forthwith. During the afternoon of August 7th, counsel submitted supplemental documents requesting $7670 in
additional fees. As the hearing is scheduled for August 9th, defense counsel have had minimal time to respond.
Some of the charges appear questionable, e.g. 13 hours for drafting facts for a memorandum. Almost all of the new
charges (but for estimated time on August 9th) is for work done before July 20th. It could have been submitted
earlier. The Court, herein, has provided for time for the August 9th hearing. Hence, the request for additional fees
in the August 7th documents is denied.
3
$108,785.20 for fees of Robert Savage, Esq. and $9031.50 for fees of Richard Savage, Esq.
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