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Lively v. Flexible Packaging Association

August 23, 2007


Appeal from the Superior Court of the District of Columbia (CAB-13834-93) (Hon. Geoffrey M. Alprin, Trial Judge).

The opinion of the court was delivered by: Kramer, Associate Judge

Argued November 1, 2006

Amended August 30, 2007

Before GLICKMAN, KRAMER and FISHER, Associate Judges.

This case, brought under the District of Columbia Human Rights Act ("DCHRA"), D.C. Code §§ 2-1401.01 to -1411.06 (2001), is before the court for the third time for review of issues arising from appellant Gayle Lively's employment discrimination claims against her employer, appellee Flexible Packaging Association (FPA), and its president, the late Glenn Braswell. Her complaint, filed in 1993, alleged six claims for relief, four of which were ultimately presented to the jury. Those four were (1) Hostile Work Environment, (2) Unequal Pay, (3) Retaliation, and (4) Intentional Infliction of Emotional Distress. In 1996, at the conclusion of a jury trial, the jury returned verdicts in favor of Ms. Lively on all four of the claims, and awarded her a total of $458,158 in compensatory damages, of which $156,600 was awarded for the Hostile Work Environment claim.*fn1 The jury also awarded Ms. Lively punitive damages in the amount of $458,158 against FPA (the same amount as the jury awarded against FPA for compensatory damages) and $77,500 against Mr. Braswell. Thereafter, FPA and Mr. Braswell filed a motion seeking judgment notwithstanding the verdict (JNOV) with respect to all four claims. The trial court granted that motion and vacated the judgments.

The trial court's decision was affirmed in all respects by a split panel of this court in 2001. See Lively v. Flexible Packaging Ass'n, 765 A.2d 954 (D.C. 2001). Ms. Lively, however, filed a timely petition for a rehearing en banc based upon the Supreme Court's issuance of a decision in National Railroad Passenger Corp. v. Morgan,536 U.S. 101 (2002), which held that Hostile Work Environment claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., were not time-barred so long as at least one act forming the basis for the claim occurred within the statutory period permitted for the filing of the claim. The petition for en banc review was granted with respect to the Hostile Work Environment claim only, and in 2003 the en banc court, applying the holding of Morgan, unanimously reversed the trial court's JNOV with respect to that claim. See Lively v. Flexible Packaging Ass'n, 830 A.2d 874 (D.C. 2003) (en banc) (hereinafter "Lively II"). Judge Reid's comprehensive opinion for the en banc court sets out the factual background that 3 underlies this claim and need not be repeated here.

On remand, with compensatory damages reduced to $156,600 to reflect the jury's award solely on the Hostile Work Environment claim, FPA moved to remit the punitive damages. In 2005, the trial court granted the motion in part, remitting the punitive damages against FPA from $458,158 to $156,600 and the punitive damages against the Braswell Estate from $77,500 to $26,489.50. Ms. Lively accepted the remitted amount.

The trial court then set a filing schedule for post-judgment motions addressing attorneys' fees and interest on the judgment. Ms. Lively filed a motion requesting $1,179,481.50 in attorneys' fees and a motion requesting interest on the compensatory and punitive damages from the date of the jury's decision.*fn2 On the same day Ms. Lively timely filed her reply to FPA and Braswell's opposition, the trial court issued its order awarding her attorneys' fees in an amount significantly less than she requested, limiting the interest on the compensatory damages awarded, and declining to provide for interest on the punitive damages awarded.*fn3

The court gave three reasons for reducing Ms. Lively's $1,179,481.50 attorney fee request. The first reason was that Ms. Lively had calculated those fees based on the attorneys' current level of experience, that is, their experience as of the time of the filing of the motion for attorneys' fees, as opposed to their level of experience when the work was actually performed. This resulted in a reduction of $149,941. The second reason was that Ms. Lively had prevailed on only one of the four claims that were submitted to the jury. Based on this success (or lack thereof), the court reduced the attorneys' fees requested by an additional 25%. The third reason was that the trial court concluded that the billing records that Ms. Lively provided were unreliable. To take account of this unreliability, the court reduced the fees an additional 8%. Thus, the amount of attorneys' fees that the trial court actually awarded was $689,792.13. With respect to interest on the judgment, the court granted Ms. Lively 6% simple interest on the compensatory damages for the period betweenJune 21, 1996 (the date of the verdict) and October 17, 2005 (the date when FPA offered to pay the portion of the judgment that was undisputed, an offer that Ms. Lively refused because FPA was unwilling to sign a stipulation proffered by Ms. Lively that acceptance of this payment was not a settlement of the matters that remained in dispute). Finally, the court denied Ms. Lively's request for interest on the punitive damages. This appeal followed.


"'Our scope of review [of an award of attorney's fees] is a limited one because disposition of such motions is firmly committed to the informed discretion of the trial court. Therefore, it requires a very strong showing of abuse of discretion to set aside the decision of the trial court.'"

Maybin v. Stewart, 885 A.2d 284, 288 (D.C. 2005) (quoting Steadman v. Steadman, 514 A.2d 1196, 1200 (D.C. 1986) (alteration in Maybin)). We limit our review to prevent squabbles over attorneys' fees from blossoming into "a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). On the other hand, it is important that attorneys who are willing to take on civil rights and other public interest work are adequately compensated, or it will be difficult to find competent counsel to handle this important job. The goal is to attract competent counsel for these cases, but not to provide them with windfalls. See Newman v. Piggie Park Enterprises, Inc.,390 U.S. 400, 402 (1968); Save Our Cumberland Mountains, Inc. v. Hodel,273 U.S. App. D.C. 78, 80-81, 857 F.2d 1516, 1518-19 (1998) (en banc); Copeland v. Marshall,205 U.S. App. D.C. 390, 399, 641 F.2d 880, 889 (1980).

A. The Laffey Matrix.

Ms. Lively claims that the trial court committed reversible error in declining to award attorneys' fees based upon the rates for attorneys at the experience level attained when the petition for attorneys' fees was filed, rather than their experience level at the time the work was actually done. As noted above, this ruling resulted in a reduction of her request for attorneys' fees by $149,941. We are unpersuaded that the approach taken by the trial court constituted an abuse of discretion. Certainly, the trial court did not err in looking to the Laffey Matrix as a beginning point for calculating these fees, nor does any party so claim.*fn4

The Laffey Matrix, which has its origins in the case of Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), rev'd in part on other grounds, 241 U.S. App. D.C. 11, 746 F.2d 4 (1984), is a chart compiled yearly by the Civil Division of the United States Attorney's Office in the District of Columbia. It provides a schedule of hourly rates prevailing in the Washington, D.C. area in each year going back to 1981 for attorneys at various levels of experience.*fn5 Piper v. United States Dep't of Justice, 339 F. Supp. 2d 13, 24 n.8 (D.D.C. 2004). It is regularly used in the federal courts of this jurisdiction to determine attorneys' fees where, as here, there is a statutory entitlement.*fn6 Smith v. District of Columbia, 466 F. Supp. 2d 151, 156 (D.D.C. 2006) ("In the District of Columbia, it has been traditional to apply the so-called Laffey Matrix . . . ."); accord, e.g., ...

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