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Hernandez v. Chipotle Mexican Grill, Inc.

United States District Court, District of Columbia

June 28, 2017



          BERYL A. HOWELL Chief Judge

         The plaintiff, Doris Nohemi Garcia Hernandez, prevailed at trial on her claim of pregnancy discrimination and now seeks from her former employer, the defendant Chipotle Mexican Grill, a total of $838, 122.00 in attorneys' fees and costs for 2073 hours of billed work. Pl.'s Pet. Att'ys' Fees & Costs (“Pl.'s Pet.”) at 1, ECF No. 137. The parties agree that the plaintiff is entitled to attorneys' fees, id., Def.'s Opp'n Pl.'s Pet. (“Def.'s Opp'n”) at 1, ECF No. 139, and that most of the fees should be awarded based on the 2016-17 United States Attorney's Office Fee Matrix (“USAO Laffey Matrix”), Pl.'s Pet. at 10; Def.'s Opp'n at 1, but the defendant challenges a substantial number of hours billed by plaintiff's counsel as insufficiently documented or excessive and objects to the application of a higher billing rate, under Salazar v. District of Columbia, 123 F.Supp.2d 8 (D.D.C. 2000) (“LSI Laffey Matrix”), for 270 hours of senior attorney work in final preparation for and at trial. For the reasons set out below, the plaintiff's petition is granted in large part and denied in part.

         I. BACKGROUND

         The facts underlying the present fee petition are undisputed. For almost two years, from April 2012, when the plaintiff filed an EEOC claim against the defendant, until shortly after the filing of the instant federal action, the plaintiff was represented, pro bono, by Debevoise & Plimpton LLP (“Debevoise”) and the Washington Lawyers' Committee (“WLC”). See Pl.'s Pet. at 8-9; id. Ex. C (Declaration of Peter Grossi, dated October 5, 2016 (“Grossi Decl.”)) ¶ 1, ECF No. 137-3; id. Ex. G (Decl. of Christine Tschiderer, dated October 6, 2016 (“Tschiderer Decl.”)) ¶ 16, ECF No. 137-7. In April 2014, two months after this case was filed, Debevoise withdrew as counsel, due to a potential conflict of interest, see Notice of Withdrawal, dated April 16, 2014, ECF No. 12; Tschiderer Decl. ¶ 16, and soon after, counsel from the firm Arnold & Porter LLP (“A&P”), entered an appearance on behalf of the plaintiff, Notice of Appearance, dated April 23, 2014, ECF No. 13.[1] A&P has provided pro bono representation of the plaintiff, along with WLC, for the last three years of litigation, including during discovery, the defendant's unsuccessful motion for summary judgment, and at trial.

         The plaintiff's discrimination case presented particular circumstances that required significant work and staffing from plaintiff's counsel. First, the defendant is an established national corporation headquartered in Denver, Colorado, while the plaintiff was employed as a “relatively new serving line worker” at the defendant's restaurant in Washington, D.C., and as such, the plaintiff “was not in any position to inform her counsel on the practices and policies of” the defendant. Pl.'s Pet. at 4. Consequently, plaintiff's counsel was required “to expend considerable time and effort developing and documenting” the “practices and policies” of the defendant. Id. at 3 (citing Grossi Decl. ¶ 19(c); see also Def.'s Answer ¶ 10 (affirming that the defendant “has its corporate headquarters in Colorado”), ECF No. 15. Second, the plaintiff and other key witnesses in the case “spoke only Spanish, thereby requiring the use” of translators throughout the litigation, Pl.'s Pet. at 3 (citing Grossi Decl. ¶ 19(b)), increasing the amount of time and preparation required of plaintiff's counsel. Third, due to “[t]he high rate of employee turnover at” the restaurant where the plaintiff worked, “and the fact that at least one key witness had left the United States entirely, ” plaintiff's counsel had “to search for remaining witnesses . . . and ultimately to develop facts through other witnesses still associated with” the defendant. Id. (citing Grossi Decl. ¶¶ 19(c)-(d)). Fourth, notably, the defendant “repeatedly changed its purported justification for terminating the defendant, ” which required counsel “to investigate and refute each different theory, primarily through the examination of” the defendant's own witnesses. Id. at 3 (citing Grossi Decl. ¶ 19(a)); see also Def.'s Opp'n at 13. Finally, after the defendant raised the potential conflict of interest that required Debevoise to withdraw as counsel two years into the litigation, A&P had to step in and learn the entire case, while defense counsel not only had the benefit of those two years as background in this case, but also has significant experience representing the defendant in other employment discrimination cases throughout the country. Pl.'s Pet. at 4; Grossi Decl. ¶ 19(e) (listing cases).

         After three years of litigation before this Court that culminated in a four-day jury trial, the plaintiff prevailed on her claim that the defendant discriminated against her on the basis of her pregnancy, in violation of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000(e), et seq., and the District of Columbia Human Rights Act, D.C. Code § 2-1401.01. The jury awarded her damages of $50, 000.00 in compensatory damages and $500, 000 in punitive damages, Compl. ¶¶ 1, 9, 31, ECF No. 1; Judgment on the Verdict, ECF No. 122, which was later reduced to a total of $390, 000, including back pay, by joint stipulation of the parties, in light of the statutory cap on punitive damages, under 42 U.S.C. § 1981(b)(3)(D), see J. Stip., dated September 9, 2016, ECF No. 131; Minute Order, dated September 9, 2016. The plaintiff timely filed her petition for attorneys' fees and costs, seeking a total of $838, 122.00 in fees and costs, see Pl.'s Pet. at 1, which the defendant has opposed in part, see generally Def.'s Opp'n.


         Under the fee-shifting provision of the Civil Rights Act of 1964, courts may award “a reasonable attorneys' fee” to prevailing private parties in any action or proceeding to enforce equal employment discrimination statutes. 42 U.S.C. § 2000e-5(k). In principle, “[a] reasonable fee is one that is adequate to attract competent counsel, but that does not produce windfalls to attorneys.'” West v. Potter, 717 F.3d 1030, 1033 (D.C. Cir. 2013) (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984)).

         The D.C. Circuit has developed a three-part analysis, the “lodestar” method, for assessing “appropriate fee awards under fee-shifting statutes in cases involving complex federal litigation.” Salazar v. District of Columbia, 809 F.3d 58, 61 (D.C. Cir. 2015). First, the court must determine the number of hours reasonably expended in litigation. Id. (citing Covington v. District of Columbia, 57 F.3d 1101, 1107-08 (D.C. Cir. 1995)). Second, it must set the prevailing market rate, or lodestar. Id.; see also Covington, 57 F.3d at 1107. Finally, it must determine whether use of a multiplier is warranted. Salazar, 809 F.3d at 61. In determining the second factor of the “prevailing market rate, ” three sub-elements are relevant: “(1) ‘the attorney['s] billing practices'; (2) ‘the attorney['s] skills, experience, and reputation'; and (3) ‘the prevailing market rates in the relevant community.'” Id. (quoting Covington, 57 F.3d at 1107). The prevailing market rate may be shown using evidence of the “attorneys' fee matrices, ” the “‘most commonly used'” of which is the Laffey Matrix, which “sets out a general guideline for awarding attorneys' fees based on experience . . . adjusted for inflation.”[2] Id. at 62 (quoting Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015). A “strong presumption” applies “that the fee yielded by the now-ubiquitous ‘lodestar' method, which bases fees on the prevailing market rates in the relevant community, is reasonable.” West, 717 F.3d at 1034 (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010)).

         “[T]he ‘fee applicant bears the burden of establishing entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates, ' with the opposing party remaining ‘free to rebut [the] fee claim.'” Salazar v. District of Columbia, 809 F.3d at 61 (quoting Covington, 57 F.3d at 1107-08)). At that point, the burden shifts to the opposing party to “provide specific contrary evidence tending to show that a lower rate would be appropriate.” Covington, 57 F.3d at 1109-10 (quoting Nat'l Ass'n of Concerned Veterans v. Sec'y of Def. (“NASC”), 675 F.2d 1319, 1326 (D.C. Cir. 1982)).


         The plaintiff seeks reimbursement of attorneys' fees for 2, 073 billed hours of work totaling $825, 123.00 in attorneys' fees, which are comprised of: (1) $683, 409.00 for 1517 hours of attorney work and 232 hours of paralegal work billed at the applicable hourly rated under the 2016-17 USAO Laffey Matrix; (2) $47, 430.00 for 270 hours billed at the higher LSI Laffey Matrix rate for the work of the lead attorneys from A&P and WLC in final preparation for and at trial; and (3) $94, 284.00 for 324 hours of senior attorney work billed at the hourly rate for a first- year attorney under the USAO Laffey Matrix. Pl.'s Pet. at 1.[3] Despite the defendant's characterization of the plaintiff's fee petition as “excessive and unreasonable, ” Def.'s Opp'n at 7, the plaintiff does not seek reimbursement for any of the work done by Debevoise during the entire two year period during that firm's representation, Pl.'s Reply Supp. Pet. Fees (“Pl.'s Reply”) at 13, ECF No. 140, or for 600 hours of time, “including 187 hours of [lead counsel's] time . . . that arguably was not fully described, ” in order to “simplify the bill” and to “avoid [] litigation on litigation.” Pl.'s Pet. at 8-9; Pl.'s Reply at 13-14; Pl.'s Reply Ex. 1 (Excluded Time Entries for Garcia v. Chipotle (“Excluded Time Entries”)), ECF No. 140-1.[4] Additionally, the plaintiff concedes that all but 270 hours should be billed at the 2016-17 USAO Laffey rate, despite the fact that “this and other courts have compensated work in Title VII cases at the substantially higher [LSI Laffey] rates.” Pl.'s Reply at 14 (citing Makray v. Perez, 159 F.Supp.3d 55-56 (D.D.C. 2016)).

         The defendant challenges the hours for which the pending fee petition seeks reimbursement because plaintiff's counsel: (1) significantly overstaffed the case; (2) improperly billed for clerical tasks and unsuccessful filings; (3) provided vague entries in support of the fee petition; and (4) used impermissible block billing in documenting the hours spent on the case.

         The defendant also argues that the plaintiff has not justified application of the LSI Laffey Matrix rate to the 270 hours spent by her two lead counsel in final preparation for and at trial.

         Before turning to these specific disputes, the Court notes that “trial courts need not, and indeed should not, become green-eyeshade accountants” in evaluating the reasonableness of hours billed, and that the goal of fee shifting “is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011); see also Copeland v. Marshall, 641 F.2d 880, 903 (D.C. Cir. 1980) (“It is neither practical nor desirable to expect the trial court judge to have reviewed each paper in this massive case file to decide, for example, whether a particular motion could have been done in 9.6 hours instead of 14.3 hours.”). With this guidance in mind, the defendant's challenges to the hours billed by plaintiff's counsel and to application of the LSI Laffey Matrix to a small portion (thirteen percent) of those hours are addressed.


         The defendant criticizes plaintiff's counsel's billing practices as generally “fail[ing] to use billing judgment, ” Def.'s Opp'n at 1, prompting the defendant's four principle challenges to the hours billed and corresponding reductions in the fee petition. According to the defendant, plaintiff's counsel: (1) used “a completely unreasonable amount of attorney manpower to pursue this case, ” Def.'s Opp'n at 6, warranting a reduction in the plaintiff's requested fee award of $534, 454.00 for 1, 634.99 hours, id. at 18-19; (2) improperly billed for hours spent on “unsuccessful filings” and clerical work, warranting a reduction in the plaintiff's requested fee award of $38, 877.06 for 110.98 hours of work, id. at 25-27; (3) provided only “vague time entries, ” warranting a reduction in the plaintiff's requested fee award of $58, 224.60 for 122 hours, id. at 20-21; and (4) improperly used “block billed entries, ” warranting a reduction in the plaintiff's requested fee award of $278, 673.00 for 1, 140.75 hours, id. at 22-23. The defendant does not specify the extent to which these broad-stroke challenges target the same hours, but the end result cannot be ignored: the total reductions sought by the defendant add up to $910, 228.66, which is actually $72, 106.66 more than the $838, 122.00 sought in the plaintiff's fee petition. In other words, wholly accepting the defendant's arguments would be difficult to reconcile with the statutory entitlement of the prevailing party in a pregnancy discrimination lawsuit to reimbursement of her reasonable attorney's fees. See 42 U.S.C. § 2000e-5(k). Set against this backdrop, the defendant's specific arguments are discussed next.[5]

          1. The Amount of Hours Billed Are Reasonable

          The defendant takes issue with the staffing of the plaintiff's case, noting that the fee petition “includes billing for 10 attorneys” and “three paralegals, ” Def.'s Opp'n at 6. According to the defendant, this level of staffing was “completely unreasonable, ” since a “team of [two] attorneys and a paralegal was more than adequate to represent Plaintiff in this matter, particularly in light of [counsel's] litigation experience and [] experience in employment law.” Def.'s Opp'n at 4; see also id. at 18-19.[6] While the defendant is correct that “reasonableness” is “the touchstone for an award of attorneys' fees, ” Def.'s Opp'n at 5, the defendant fails to demonstrate that plaintiff's counsel unreasonably staffed the plaintiff's case.

         First, given the complexity of this case, the staffing and time spent vindicating the plaintiff's civil rights are not facially unreasonable. As already noted, plaintiff's counsel surmounted a number of obstacles that made this case notably challenging, including the plaintiff's limited familiarity with her former employer's policies and practices, the location of her former employer's headquarters and relevant witnesses in Colorado, the need for translators for the plaintiff and a number of witnesses who spoke only Spanish, the difficulty in locating witnesses given the high turn-over rate of employees for the defendant, the shifting justifications provided by the defendant for terminating the plaintiff, the withdrawal of Debevoise two years into the litigation, and the ...

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