Accordingly, Graves is entitled to $ 9,293.33, which is $ 13,053.33 less his unemployment insurance payment for that period, $ 3,760.00.
In addition to backpay, Graves seeks an order directing ABC to reinstate him as a full-time graphic artist. (Pls.' Final Proposed Order at 41.) As discussed above, however, Graves's old job at ABC no longer exists. He cannot be reinstated to it.
Construing his request liberally as seeking an order directing ABC to hire him as a staff graphic artist -- a position that survived the April 1986 layoff -- does not win Graves injunctive relief either. ABC has shown by a preponderance of the evidence that even if he had lasted the year at ABC, he was not likely to be promoted to staff graphic artist -- not because of racism but because he was a poor candidate for promotion. This showing defeats Graves's claim for injunctive relief for the same reasons that it defeats his claim for post-1986 backpay.
Shepherd claims $ 150,000.00 in damages for ABC's alleged retaliation against her for expressing concerns about workplace discrimination at a meeting of minority employees in October 1985. (Pls.' Proposed Order for Relief at 9.) Similarly, Graves claims $ 300,000.00 in damages for ABC's alleged retaliation against him for attending the October 1985 meeting and for encouraging Shepherd. (Pls.' Proposed Order for Relief at 8.) Both of these claims must be denied.
After plaintiffs made these retaliation damages claims in their May 1992 Proposed Order for Relief, this court vacated its original conclusion that ABC had retaliated against Graves and Shepherd for their attendance at the October meeting. (Mem. Op. of Sept. 3, 1993 at 39.) Because the default judgment against ABC on the retaliation count no longer stands, no damages can be awarded for it.
C. Punitive Damages
Punitive damages awards are available for violations of the District of Columbia's Human Rights Act.
However, like punitive damages awards in general in this jurisdiction, they may be awarded only against one who "'participated in the doing of such wrongful act or had previously authorized or subsequently ratified it with full knowledge of the facts.'" Jordan v. Medley, 228 U.S. App. D.C. 425, 711 F.2d 211, 216 (D.D.C. 1983) (citation omitted). For punitive damages to be awarded against a corporate defendant, "it must be shown that the wrongful act was authorized and ratified by the corporation, not merely perpetrated by an employee." Remeikis v. Boss & Phelps, Inc., 419 A.2d 986, 992 (D.C. App. 1980). See also Woodard v. City Stores Company, 334 A.2d 189, 191 (D.C. App. 1975) (mere retention and promotion of an employee does not amount to corporate ratification that would expose corporation to liability for punitive damages).
The default judgment in this case establishes that connection between ABC and its employee actors. Although the default judgment memorandum opinion says nothing explicit on the subject, the effect of the default judgment is to take as true all well-pleaded allegations (see Hughes, 449 F.2d at 63-64), and well-pleaded allegations in the complaint clearly establish the necessary link leading from ABC's employees' actions to ABC's liability.
Punitive damages may be awarded only if "the conduct complained of [was] 'willful and outrageous, constituted gross fraud, or [was] aggravated by evil motive, active malice, deliberate violence or oppression.'" Raynor v. Richardson-Merrell, Inc., 643 F. Supp. 238, 245 (D.D.C. 1986) (citations omitted). Plaintiffs' claims meet this standard. In finding that defendant intentionally inflicted emotional distress on plaintiffs, this court has already determined the two sufficient elements of a punitive damages claim: that defendant's actions were both intentional and outrageous. Accordingly, even though such awards are disfavored in the District of Columbia,
plaintiffs are entitled to punitive damages.
Setting the amount of punitive damages "is within the sound discretion of a trial court that is sitting without a jury." Mariner Water v. Aqua Purification, 214 U.S. App. D.C. 248, 665 F.2d 1066, 1071 (D.C. Cir. 1981). Although plaintiffs claim $ 2,500,000 each in punitive damages from ABC, they cite no authorities granting such amounts. (Defendants, who have argued strongly that no punitive damages are due, have not offered this court any guidance on the range of punitive damages awards appropriate to discrimination cases.) This court's independent research indicates that there is an extraordinarily wide range of punitive damages awards, from $ 1,000 to $ 300,000.
In the present case, defendant's behavior towards the plaintiffs was willful and egregious. Like the plaintiff in Arthur Young, who brought a very similar action under the DCHRA (see supra note 35), Graves and Shepherd were continually harassed in their jobs. Graves's superior forced him to work under more trying conditions that non-black employees, assigning him to menial tasks, keeping him in the dark about departmental procedures, setting him impossibly short deadlines and complaining that he did not meet them, and ultimately firing him. Likewise, Shepherd's superior consistently treated her worse than male and non-black employees, even those with less seniority, and humiliated her in front of her colleagues. Like the plaintiff in Arthur Young, the discrimination that Graves faced culminated in his losing his job;
like the Arthur Young plaintiff, he is entitled to $ 75,000 in punitive damages. Unlike the plaintiff in Arthur Young, however, the discrimination Shepherd faced was never so onerous as to drive her to quit. Accordingly, Shepherd is entitled only to $ 50,000 in punitive damages.
In closing, it is worth noting that each plaintiff's total award -- $ 125,000 for Shepherd, and $ 184,293.33 for Graves -- is safely below the amount that Congress believes is excessive compensation for employment discrimination. Congress has determined that discriminators like defendant ABC who are sued under Title VII can be held liable for no more than $ 300,000 for future pecuniary and non-pecuniary compensatory damages and punitive damages.
Although this is a DCHRA and not a Title VII case, Congress's upper limit on compensatory and punitive damages does give this court a sense of the national consensus on what a reasonable award is. The awards in this case do not exceed that nationally sanctioned figure.
D. Injunctive Relief
Lastly, plaintiffs' complaint and proposed order for relief ask this court to enter orders directing defendant ABC to desist from the discriminatory conduct against Shepherd and Graves that was described in the complaint. (Complaint at 18, 19; Pls.' Proposed Order for Relief at 4-5.) This court shall enter an order directing defendant ABC to desist from the discriminatory conduct described against Shepherd, since she still works for defendant ABC. Because Graves is no longer working for defendant ABC, no order protecting him from employment discrimination need issue, and his request for injunctive relief shall be denied as moot.
E. Attorney's Fees and Costs
Finally, plaintiffs have requested attorney's fees and costs incurred in this action.
As the prevailing party, plaintiffs are clearly entitled to reasonable attorney's fees and costs under the DCHRA.
However, the fact that their counsel took this case on contingency does not entitle them to their claimed 200 percent enhancement of the lodestar amount. Such contingency enhancements are not permitted in the District of Columbia under federal fee-shifting statutes,
and rules governing the determination of federal fee awards routinely govern DCHRA fee awards.
Aside from these broad brushstrokes, the precise amount of attorney's fees and costs owed to plaintiffs is still undetermined. To aid this court's determination of an appropriate award, the parties shall submit supplemental briefing on the issue in accordance with an order that will issue separately. Upon review of the supplemental briefs, this court shall issue a separate order awarding reasonable attorney's fees and costs. In the meantime, the quantification of a reasonable attorney's fee award and costs shall be delayed until further briefing.
Accordingly, for the reasons stated above, Shepherd shall be awarded $ 125,000.00 in damages from defendant ABC, Graves shall be awarded $ 184,293.33 in damages from defendant ABC, and defendant ABC shall desist from the discriminatory conduct against plaintiff Shepherd that was described in the complaint. A separate order shall issue this date.
Royce C. Lamberth
United States District Judge
This case comes before this court on plaintiffs' request for attorney's fees and costs from defendant American Broadcasting Companies, Inc., under the District of Columbia's Human Rights Act, 2 D.C.C. §§ 1-2501 et seq. To aid this court's determination of an appropriate award, it is hereby ORDERED that the parties shall submit supplemental briefing on the issue in accordance with the following schedule:
1. Within 20 days of the date of this order, plaintiffs shall submit a final request for attorney's fees and costs. Such request will contain the following:
a. A single, updated, detailed and accurate statement of all attorney's fees requested in this case.
b. A single, updated, detailed and accurate statement of all costs (expended either by plaintiffs' counsel or by plaintiffs themselves) that plaintiffs seek to have taxed to defendant ABC. The statement must designate the statutory or other authority that permits this court to tax each cost.
c. A statement of plaintiffs' counsels' claimed hourly rate or rates, and a brief and clear statement of whether their claimed rate is their established billing rate, or the prevailing market rate.
i. If counsels' claimed rate is their established billing rate, plaintiffs shall state what their counsels' established billing rate is and what it has been for each year of this litigation. Plaintiffs shall also provide evidence showing whether those rates are within the range of rates charged for such services in the District of Columbia.
ii. If counsels' claimed rate is the prevailing market rate, plaintiffs shall demonstrate that their counsel lack an established billing history upon which an award may be based. They shall also provide evidence showing that plaintiffs' counsel have lowered their rates below the prevailing market rate out of public interest motives.
d. A statement of the number of hours their counsel worked on this case. Plaintiffs shall demonstrate good billing judgment in indicating wasted or needlessly spent time that should not be charged to defendant.
e. A statement of whether plaintiffs seek current or historical rates for their counsels' work, and a brief argument in favor of plaintiffs' choice.
2. Defendant ABC may submit an opposition within ten days of the filing of plaintiff's final fee request. Such opposition shall contain the following:
a. A single, updated, detailed and accurate statement of all the attorney's fees and costs requested by plaintiffs that defendant does not contest, in light of this court's ruling that plaintiffs are entitled to reasonable attorney's fees and costs.
b. A single, updated, detailed and accurate statement of all the attorney's fees and costs requested by plaintiffs that defendant contests. Defendant shall state in detail why it contests each of the contested items.
c. Any other arguments, rebuttals, or discovery requests that defendant wishes to make.
3. Plaintiff may submit a final reply regarding the amount of attorney's fees and costs to be awarded within seven days of service of the opposition.
Royce C. Lamberth
United States District Judge
This case comes before this court on five motions relating to the determination of a damages award. Upon consideration of these motions, their oppositions, and replies, it is hereby ORDERED that
1. Defendants' motion for certification of the court's default judgment is DENIED.
2. Defendants' motion for leave to file an opposition to plaintiffs' final proposed order for relief and supplemental supporting memorandum is GRANTED. The Clerk of the Court shall file defendants' opposition to plaintiffs' final proposed order for relief and supplemental supporting memorandum as of the date of this order.
3. Plaintiffs' motion to seal their opposition to defendants' motion for leave to file a reply to plaintiffs' final proposed order for relief is DENIED as moot. The motion seeks to prevent defense counsel from revealing to defendant Dyball certain facts about a witness's allegations. Dyball, however, already knew those facts before plaintiffs filed the motion to seal. The memorandum of Kenneth Dyball in opposition to the motion to seal, and any and all other filings pertaining to the motion to seal shall be unsealed forthwith.
4. Defendant Dyball's motion for leave to file a surreply to plaintiffs' reply to defendant Dyball's opposition to plaintiffs' motion to seal plaintiffs' opposition to defendants' motion for leave to file a reply to plaintiffs' final proposed order for relief is GRANTED. The Clerk of the Court shall file defendant Dyball's surreply as of the date of this order.
5. Plaintiffs' motion for leave to file a reply to all defendants' oppositions to plaintiffs' proposed order for relief is DENIED as moot. The motion seeks leave to submit a reply by July 16, 1992, a date that has long passed. (No proposed reply was submitted as an exhibit to plaintiffs' motion.) In any event, on December 20, 1993, plaintiffs filed a final proposed order for relief and a supplemental supporting memorandum, which addresses many of the issues raised by defendants' oppositions to plaintiffs' original proposed order and serves in effect as a reply.
Royce C. Lamberth
United States District Judge