Bernabei & Wachtel Blog

D.C. Court of Appeals decision, expert witness issues

On January 15, 2009, the D.C. Court of Appeals upheld a $1.65 million jury verdict in favor of the plaintiff, a former UDC faculty member, who proved at trial that while he was attempting to negotiate a settlement of his employment situation with UDC's General Counsel, the UDC Provost (contrary to the General Counsel's recommendation) ordered that the contents of his office and research laboratory be evicted in order to make way for another program. Indeed, the General Counsel had written to plaintiff's attorney to advise him that the eviction would be stayed while they were doing the negotiations, upon which the plaintiff left town to attend a scientific meeting. Instead, during his absence, his office contents were trashed in the "eviction."

The plaintiff presented his own testimony, and that of two professional colleagues as expert witness, as to the valuation of the destroyed equipment, his detailed lecture notes, unpublished manuscripts and research in progress.

The Court of Appeals squarely rejected all of UDC's challenges to the sufficiency of the evidence, including the expert witnesses, and to the jury instructions.

This decision is useful in that it allows professional colleagues of a plaintiff to serve as expert witnesses in their common area of expertise, so that a plaintiff can put a value on the economic losses caused by defendant's interference with his future earning opportunities.

Some excerpts follow:

http://www.dcappeals.gov/dccourts/appeals/pdf/05-CV-1165.PDF

TRUSTEES OF THE UNIVERSITY OF THE DISTRICT OF COLUMBIA, APPELLANTS, v.

JAFAR VOSSOUGHI, APPELLEE.

Appeal from the Superior Court of the District of Columbia (No. CAB-3280-03)

(Hon. Geoffrey M. Alprin, Trial Judge)

(Argued May 23, 2007 Decided January 15, 2009)

Mary T. Connelly, Assistant Attorney General, with whom Robert J. Spagnoletti, Attorney General for the District of Columbia at the time the brief was filed, Linda Singer, Attorney General for the District of Columbia at the time, Todd S. Kim, Solicitor General, and Edward E. Schwab, Deputy Solicitor General at the time, were on the briefs, for appellants.

Jonathan C. Dailey, with whom Robert C. Kostecka was on the brief, for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and FARRELL, Associate Judge, Retired.*

GLICKMAN, Associate Judge:

Dr. Jafar Vossoughi sued the University of the District of Columbia ("UDC") for destroying his personal property - unique scientific instruments and other equipment, voluminous teaching materials, unpublished research data, and other items - when it cleaned out his biomechanical research laboratory without his knowledge in order to devote the space to other uses. The case was tried to a jury, which found UDC liable to Dr. Vossoughi for trespass to chattel, conversion, and negligence, and awarded him compensatory damages in the amount of $1,650,000. The trial court entered judgment on that verdict and denied UDC's post-judgment motion for partial judgment as a matter of law, a new trial, and/or a remittitur.

On appeal, UDC takes no issue with the jury's finding of liability and seeks a new trial only on the question of Dr. Vossoughi's damages. To prove the value of his lost property at trial, Dr. Vossoughi relied on his own testimony and that of two expert witnesses. UDC, which introduced no contrary valuation evidence, challenges both the admissibility of the experts' testimony and the overall sufficiency of Dr. Vossoughi's proof of value. In addition, UDC claims that the trial court improperly refused to instruct the jury on mitigation of damages and erroneously allowed the jury to award damages to Dr. Vossoughi for property that belonged not to him, but to UDC.

UDC's contentions do not persuade us to grant it relief. We conclude that the valuation testimony of Dr. Vossoughi and his two expert witnesses was admissible and sufficient to support the jury's award. We further conclude that UDC was not entitled to an instruction on mitigation. Finally, we reject UDC's charge that the trial court erroneously allowed the jury to compensate Dr. Vossoughi for the loss of property he did not own.

Dr. Vossoughi is an expert in applied mechanics and experimental biomechanics - an area of study that encompasses the testing of mechanical theories and the creation and development of novel experimental devices for biomechanical research. Over the course of his career, Dr. Vossoughi has written or edited 17 books and over 150 other publications. According to the undisputed testimony of two fellow scientists, Dr. Vossoughi has made significant discoveries and contributions and is well-known and respected in his academic field. . . .

. . . In 1999, Dr. Vossoughi filed a lawsuit against UDC for breach of contract, in which he claimed that university officials had reneged on a promise to give him tenure. In the summer of 1999, while settlement negotiations were taking place, acting UDC provost Beverly Anderson directed Dr. Vossoughi in writing to vacate his laboratory, because the space was needed for other university programs. In early September, however, UDC counsel Robin Alexander advised Dr. Vossoughi's attorney that Dr. Vossoughi's eviction had been stayed in view of the on-going efforts to resolve the employment litigation. Provost Anderson testified at trial that Alexander had asked her not to evict Dr. Vossoughi. Nonetheless, in November 1999, Provost Anderson wrote another letter demanding that Dr. Vossoughi vacate his laboratory.

In January 2000, unbeknownst to Dr. Vossoughi, a decision was made to clear out the contents of his laboratory to make room for a practical nursing program. . . .

On February 11, 2000, Dr. Vossoughi returned to his laboratory, found the door open, and discovered that "[m]ost of the lab was empty except some big pieces there." He testified at trial that he saw "a lot of [his] stuff in the trash dumpsters" around the building, but approximately "80, 90 percent of [his] things were gone." Dr. Vossoughi immediately telephoned his attorney, who instructed him to take photographs to document the condition of his laboratory. The photographs, which were in evidence at trial, show a laboratory stripped of virtually all its contents, surrounded by piles of trash and stacked boxes. Dr. Vossoughi testified that a trash bin in one photograph contained "mostly [his] experiments, which were broken, dismantled." When asked at trial whether he did anything to try to retrieve property from the trash, Dr. Vossoughi responded that "if 80, 90 percent of your belongings are gone, you don't care at that time about 10 percent trash left over." Later, Dr. Vossoughi did seek to retrieve or inventory his stored belongings, but UDC initially did not permit him to do so. Eventually, Dr. Vossoughi was allowed to inventory the property and take what was his. He testified at trial that he did not include any recovered property in his claim for damages. . . .

Dr. Vossoughi sought compensation from UDC for the destruction of four main types of personal property: (1) course materials; (2) unpublished research data; (3) scientific instruments that he had fabricated; and (4) equipment and other items that he had purchased from commercial vendors. The value of this property was a principal, though not the sole, component of Dr. Vossoughi's damages claim. Because most of the lost property was unique or had no fair market value, Dr. Vossoughi asked the jury to award him its replacement value. In order to establish the value of his lost property, Dr. Vossoughi relied on his own testimony and, with respect to all but the commercially available items, the testimony of two expert witnesses, Dr. Ted Conway and Dr. Subrata Saha. Dr. Conway, a biomedical engineering researcher at the University of Central Florida, was "on loan" at the time of trial to the National Science Foundation, where he was in charge of its funding program for research and disabilities education. In connection with that assignment, Dr. Conway had earned a "master's certificate" in project management at George Washington University. Dr. Saha was a professor at Alfred University, where he taught courses in bioengineering, biomechanics and related fields, as well as a course in engineering economic analysis. Both Dr. Conway and Dr. Saha had collaborated with Dr. Vossoughi on research projects, and they were generally familiar with his work, the courses he taught, and his publications and scientific reputation. . . .

III. Admissibility of the Experts' Valuation Testimony

UDC contends that the trial court erred in permitting Dr. Conway and Dr. Saha to testify as to the value of Dr. Vossoughi's course materials, unpublished research, and fabricated devices. UDC asserts that the witnesses lacked the qualifications necessary to testify as experts on valuation and "merely rubber-stamped Vossoughi's speculative and erroneous valuations without providing any reasonable basis for their opinions." We disagree.

. . . "The trial court has broad discretion in determining whether to admit expert testimony, and its ruling admitting or excluding such evidence will not be disturbed unless manifestly erroneous." Similarly, "[w]hether a witness possesses the requisite qualifications to express an opinion on a particular subject is within the trial court's discretion, and its decision in that regard will only be reversed for an abuse." [quoting Jung v. George Washington Univ., 875 A.2d 95, 104-05 (D.C. 2005)].

It is undisputed that the valuation of Dr. Vossoughi's specialized property was a proper subject for expert opinion testimony; it is certainly a subject "distinctly related" to Dr. Vossoughi's occupation and "beyond the ken" of the average lay juror. As to the experts' qualifications, the issue is not whether Dr. Conway and Dr. Saha had formal training in property appraisal, market valuations or financial analysis, nor whether they previously had been qualified as experts on the valuation of property. The witnesses had extensive experience as experimenters, researchers and academics in Dr. Vossoughi's field, and they had considerable familiarity with Dr. Vossoughi's laboratory, research and achievements. Each witness had worked with Dr. Vossoughi, fabricated similar equipment, created and taught similar courses, performed similar research, and funded or budgeted similar projects. The trial court readily could find that the witnesses' knowledge and experience prepared them to offer informed opinions regarding the time and resources necessary to replicate Dr. Vossoughi's lost course materials, unpublished research, and specially fabricated devices. . . .

VII. Conclusion

This was an unusual case. The jury reasonably could find that UDC tortiously destroyed much of Dr. Vossoughi's life's work - intellectual property created and accumulated over decades - and ruined his professional career. While Dr. Vossoughi's lost course materials, unpublished research, and fabricated devices were difficult to value, the evidence allowed the jury to make a fair estimate of their worth. The jury's award may seem high to some (and clearly it does to UDC), but it is supported by admissible evidence and untainted by legal error. We have no grounds to overturn the verdict. The judgment of the trial court is hereby affirmed.

[Alan R. Kabat, Bernabei & Wachtel, PLLC]

Fourth Circuit, retaliation and scope of the EEOC charge

 

The Fourth Circuit addressed the perennial question of whether retaliation claims are properly exhausted at the EEOC charge stage, when the plaintiff initially filed a retaliation charge which was exhausted, and then was terminated after the exhaustion period, but did not file a new charge (or amend her prior charge). The court held that it was reversible error to dismiss the Title VII retaliation claims based on the termination for failure to exhaust, since the termination was a continuation of the retaliation that the plaintiff alleged in her EEOC charge. In other words, there was no need to file a new charge, or amend the previous charge. It is important to emphasize that the EEOC charge described the retaliation as ongoing, not merely as past events, as complaining about ongoing discrimination will allow subsequent events to be encompassed by the EEOC charge.

This case has a particularly convoluted procedural history that defies simplification (and the Fourth Circuit upheld the dismissal of the age, race, and sex discrimination claims); only the relevant excerpt on the exhaustion issue is set forth below.

http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/071680.P.pdf  

Jones v. Calvert Group, Ltd., No. 07-1680 (4th Cir. Jan. 5, 2009)

Appeal from the United States District Court for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge.

(8:06-cv-02892-DKC)

Argued: October 30, 2008

Decided: January 5, 2009

Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated in part and reversed and remanded in part by published opinion. Judge Traxler wrote the opinion, in which Judge Shedd and Senior Judge Hamilton joined.

COUNSEL

Theodore Scot Allison, Washington, D.C., for Appellant.

Henry Adam Platt, SAUL EWING, L.L.P., Washington, D.C., for Appellee.

TRAXLER, Circuit Judge:

Linda Jones appeals a district court order that, as is relevant here, granted summary judgment against her on her claims that Calvert Group, Ltd. terminated her in retaliation for filing an Equal Employment Opportunity Commission ("EEOC") charge and because of her age, sex, and race. We vacate the judgment on the merits on each of these claims. Regarding the age, sex, and race claims, we remand for dismissal of the claims for lack of subject matter jurisdiction because of Jones’s failure to exhaust administrative remedies. With regard to the retaliation claim, we remand for further proceedings. . . .

. . . . Jones next contends that the district court erred in ruling that she failed to exhaust her administrative remedies with regard to the retaliation claim. We agree.

Jones specifically argues that the district court’s ruling is at odds with our decision in Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992). . . . On appeal from the district court’s dismissal of the retaliation claim for failure to exhaust administrative remedies, we explained that our circuit had previously left open the question of "whether a plaintiff asserting a Title VII claim of retaliation for filing a previous EEOC charge must exhaust administrative remedies before suing in federal court." See Nealon, 958 F.2d at 590 (citing Aronberg v. Walters, 755 F.2d 1114, 1115 n.1 (4th Cir. 1985)). Noting that "[a]ll other circuits that have considered the issue have determined that a plaintiff may raise the retaliation claim for the first time in federal court," and "find[ing] these rationales persuasive," we "adopt[ed] th[at] position." Id. Justifying our adoption of the rule, we explained that it "is the inevitable corollary of our generally accepted principle that the scope of a Title VII lawsuit may extend to any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission." Id. (internal quotation marks omitted). We reasoned that a claim of "retaliation for the filing of an EEOC charge as discrimination" is indeed "like or reasonably related to and growing out of such allegations." Id. (internal quotation marks & alteration omitted). And, we noted that "practical concerns" also supported the rule in that a plaintiff that has already been retaliated against one time for filing an EEOC charge will naturally be reluctant to file a separate charge, possibly bringing about further retaliation. See id.

. . . Calvert contends that the Nealon rule applies only to cases in which the alleged retaliatory act occurred during the pendency of the administrative investigation of the prior EEOC charge. . . .

We are not persuaded, however. Regardless of whether Calvert presents persuasive arguments that the rule we adopted in Nealon should have included a pendency requirement, the language of the opinion is clear that the rule we actually adopted in fact included no such requirement. Nor would such a requirement have fit within our reasoning in that case, in which we explained that a plaintiff should be excused from exhausting claims alleging retaliation for the filing of a previous EEOC charge largely because such a plaintiff would be expected to be gun shy about incurring further retaliation after an additional EEOC charge and because a second conciliation could not be expected to be any more fruitful than the first. See Nealon, 958 F.3d at 590.

. . . Calvert further maintains that even if our precedent at one time allowed a claim to relate back to an EEOC charge even when the claim arose after the charge was no longer pending, that precedent has been overruled, at least as it applies to discrete unlawful employment acts, by National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and its progeny. . . . Although Calvert asserts that Morgan required Jones to file a new EEOC charge alleging that she was terminated in retaliation for her first charge, we do not read Morgan that broadly. Morgan addresses only the issue of when the limitations clock for filing an EEOC charge begins ticking with regard to discrete unlawful employment practices. In this respect, it concerns only Congress’s clear preference as expressed in Title VII for "prompt processing of all charges of employment discrimination." Morgan, 536 U.S. at 109. It does not purport to address the extent to which an EEOC charge satisfies exhaustion requirements for claims of related, post-charge events. See Wedow v. City of Kansas City, Mo., 442 F.3d 661, 673-75 (8th Cir. 2006). But see Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003) (holding that after Morgan claims of discrete employment actions are not exhausted by virtue of earlier EEOC charge even when the claim is reasonably related to the EEOC charge). Nealon therefore remains binding precedent.

. . . The critical question therefore is whether Jones’s retaliation claim relates back to the charge that is properly before us, the second charge. We conclude that it does. Jones’s second charge alleged a pattern of conduct by her employer in retaliation for her filing the first charge that included denying her mentoring opportunities, unduly scrutinizing her performance, and giving her a negative performance review. The charge also indicated that the retaliatory behavior was ongoing. See J.A. 18 ("I am being forced to work in a hostile environment and subjected to differential treatment in retaliation for filing [the earlier EEOC charge]." (emphasis added)). Particularly in light of the indication in the second charge that Calvert’s retaliatory conduct was continuing, we conclude that the alleged retaliatory termination was merely the predictable culmination of Calvert’s alleged retaliatory conduct, and, accordingly, we conclude that the claim of retaliatory termination was reasonably related to the allegations of the second charge. Cf. Smith v. First Union Nat’l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (holding that claim that because plaintiff consulted with counsel regarding alleged harassment, she was forced to work on her alleged harasser’s floor and not offered other positions was reasonably related to EEOC charge that she was chastised and threatened with termination based on the same retaliatory motive); Wedow, 442 F.3d at 673-75 (holding that EEOC charge served to exhaust retaliation claims arising after the charge was filed when charge alleged ongoing retaliatory denial of work opportunities and opportunities for promotion and post-charge claims were based on allegations that plaintiff continued to suffer similar retaliatory denials).

Of course, the nature of the retaliation alleged in the present case is slightly different from the retaliation alleged in Nealon—in Nealon, the plaintiff claimed she suffered retaliation for filing the charge before the court, whereas Jones claims she suffered a continuation of the retaliation she alleged in the charge. Nevertheless, we see no reason why that distinction should make any difference; the "practical concerns" that we cited in Nealon as justifying excusing the plaintiff from filing an additional EEOC charge apply with equal force when the claimed retaliation is a continuation of the treatment alleged in the charge before the court. See Clockedile, 245 F.3d at 5-6. Thus, we hold that the Jones’s retaliation claim related back to her second charge and the district court erred in ruling otherwise. We therefore vacate the judgment against Jones on this claim and remand to the district court for further proceedings.

[Alan R. Kabat, Bernabei & Wachtel, PLLC]

D.C. Court of Appeals, wrongful termination in violation of public policy

On Dec. 31, 2008, the D.C. Court of Appeals issued a decision that addresses an issue of first impression in D.C. – may an employee with an employment contract or otherwise protected through a union CBA from at-will employment nonetheless state a claim for wrongful termination in violation of public policy?  MWELA, through Jonathan Gould, submitted an amicus brief on the employee’s behalf.  Although the D.C. Court of Appeals remands for further determination of whether the union grievance procedure should have been used by two of the three plaintiffs, it appears that the court did adopt plaintiffs’ and MWELA’s reasoning that a CBA is not a per se bar to this common-law claim.

Some excerpts follow:

http://www.dcappeals.gov/dccourts/appeals/pdf/05-CV-778+.PDF  

KATHIE BYRD and LISHA QUARLES, APPELLANTS, v. VOCA CORPORATION OF WASHINGTON, D.C., APPELLEE.

MICHELLE MONROE, APPELLANT, v. VOCA CORPORATION OF WASHINGTON, D.C., APPELLEE.

Appeals from the Superior Court of the District of Columbia

(CA-4412-04)

(CA-713-04)

(Hon. Frederick H. Weisberg, Trial Judge)

(Argued June 22, 2006 Decided December 31, 2008)

Leslie D. Alderman III

, with whom T. Cary Devorsetz and Sundeep Hora were on the brief, for appellants.

Steven Sarfatti

for appellees.

Jonathan L. Gould

filed a brief amicus curiae for the Metropolitan Washington Employment Lawyers Association in support of appellants.

Before FISHER, Associate Judge, and WAGNER and SCHWELB,* Senior Judges.

WAGNER, Senior Judge: Appellants, Kathie Byrd, Lisha Quarles, and Michelle Monroe, sued their former employer, appellee, VOCA Corporation of Washington, D.C., for wrongful termination of employment based on public policy grounds. The trial court granted appellee summary judgment, having concluded that appellants’ remedy for wrongful discharge was preempted by § 301 (a) of the National Labor Relations Act of 1947 (NLRA), 29 U.S.C. § 185 (a) (2001). The trial court also dismissed appellants’ cases on the separate ground of failure to exhaust administrative remedies. Appellants argue that the trial court erred in its rulings because: (1) their causes of action are independent of the applicable collective bargaining agreement, and therefore, not preempted by § 301 (a) of the NLRA; and (2) exhaustion of administrative remedies is not required because their claims involve rights independent of the contractual rights protected by the collective bargaining agreement. We affirm the trial court’s dismissal of appellant Monroe’s claim on preemption grounds. We remand the cases of appellants Byrd and Quarles for further proceedings consistent with this opinion.

Factual and Procedural Background

Appellants were employed by VOCA in separate group homes for developmentally disabled individuals in the District. They were members of Service Employees International Union (the Union) which had a collective bargaining agreement (CBA) with VOCA governing the terms of their employment. Under the terms of the CBA, Union members could be disciplined or terminated only for "just cause" and "commensurate with the offense." The CBA also established a procedure for arbitration of grievances and terminations contested by the Union on an employee’s behalf.

Each of the appellants complained to their supervisors about deficiencies in the conditions of the respective group homes where they worked. In addition, appellants Byrd and Quarles complained to members of the Council of the District of Columbia and officials in the Mayor’s office. Shortly thereafter, appellants were terminated from their employment. The Union initiated arbitration proceedings on appellants’ behalf, but appellants elected not to pursue arbitration. Each of them filed a complaint in the trial court alleging wrongful termination of employment.

The trial court granted VOCA’s motion for summary judgment, holding that the appellants’ claims were "inextricably bound up in the collective bargaining agreement between [their] union and [their] employer and that [the] local law wrongful termination claim is therefore preempted by § 301 (a) of the National Labor Relations Act of 1947, 29 U.S.C. § 185 (a) [NLRA]." . . .

B. Preemption Analysis

Appellants argue that their state law claims are not preempted by § 301 because their wrongful termination causes of action are independent of the collective bargaining agreement. Appellee responds that the pre-emptive effect of § 301 of the NLRA precludes the action. However, preliminarily, appellee argues that appellants have no viable state law claim against which the primacy of national labor laws can be analyzed. Appellee contends that the cause of action that appellants seek to assert, wrongful discharge in violation of public policy, is based upon a narrow exception to the at-will employment doctrine which is not applicable to employees, like appellants, whose job tenure is protected by contract.

. . . As appellee points out, this jurisdiction has never recognized the availability of a cause of action for wrongful discharge in violation of public policy for non-at-will employees. It contends that this court should not expand the doctrine to include employees whose rights are protected by contract and enforceable in grievance and arbitration proceedings. Further, appellee argues that this court has refrained from pronouncing alterations to common law rules until a clear national consensus has developed, which has not occurred here. Appellants argue that a cause of action for wrongful termination in violation of public policy should not be limited to at-will employees. They contend that such a limitation would frustrate the purpose of the "public policy tort."

Some courts have held that a claim for wrongful discharge in violation of public policy is available to non-at-will employees, while others have held the contrary. [collecting cases] . . .

Maryland has recognized a cause of action for abusive discharge in favor of at-will employees as well as those who work under a contract. See Ewing, supra note 9, 537 A.2d at 1175. In Ewing, Maryland’s highest court had to decide whether a "cause of action exists under Maryland law for abusive discharge of an employee whose rights are protected by contract," and whether "the pre-emptive effect of § 301 of the Labor Management Relations Act foreclosed the bringing of the action, or in the alternative, its successful prosecution." Id. at 1174. Just as in this jurisdiction, the Maryland Court of Appeals had recognized previously only the applicability of the tort to "an at will" employee when the motivation for the discharge contravenes some clear mandate of public policy." Id. (quoting Adler v. Am. Standard Corp., 291 Md. 31, 47, 432 A.2d 464, 473 (1981)). With respect to the viability of such a claim for contract workers, the Maryland court held that "[a] cause of action for abusive discharge is available to contractual employees as well as to at will employees." Id. at 1179. The court reasoned that recognition of the tort action for all employees "will foster the State’s interest in deterring particularly reprehensible conduct." Id. at 1175. The court cautioned that the action "is applicable only where the discharge contravenes some clear mandate of public policy." Id. The Maryland court’s reasoning is persuasive. Denying contract workers the public policy wrongful discharge remedy tends to "ignore[ ] the fundamental distinction between tort and contract actions." Smith, supra note 9, 991 P.2d at 1141. The duty giving rise to the tort remedy is not derived from the covenants of contract, but rather from the employer’s obligation to conduct its affairs in conformity with fundamental public policy. See id. (citing Koehrer v. Superior Court, 181 Cal. App.3d 1145, 1165, 226 Cal. Rptr. 820, 825 (1986)) (quoting WILLIAM L. PROSSER, THE LAW OF TORTS 613 (4th ed. 1971)). Recognition of the cause of action will, as the Maryland court observed, "foster the State’s interest in deterring particularly reprehensible conduct." Ewing, 537 A.2d at 1175. We have held that a cause of action for wrongful discharge is available to at-will employees under the Adams-Carl line of cases, consistent with its strict requirements. Specifically, a plaintiff must show that the employer-defendant acted in contravention of an "identifiable policy that has been ‘officially declared’ in a statute or municipal regulation, or in the Constitution . . . . " Fingerhut, supra, 738 A.2d at 806 (quoting Carl, ain supra note 1, 702 A.2d at 164). "[T]here must be a close fit between the policy thus declared and the conduct at issue in the allegedly wrongful termination." Id. at 803 n.7 (quoting the majority in Carl, supra note 1, 702 A.2d at 164). . . .

Exhaustion of Administrative Remedies

The trial court ruled that appellants’ claims must be dismissed for the separate and independent reason of failure to exhaust the grievance and arbitration remedies under the CBA. Appellants argue that the grievance policy in their CBA does not apply to disputes for wrongful and retaliatory termination in violation of public policy. They contend that the plain language of the CBA imposes the grievance/arbitration process only on those disputes that arise out of the agreement and that their independent public policy tort claims do not. Similarly, amicus argues that arbitration clauses in CBAs generally do not preclude an employee from pursuing an action for wrongful termination. Amicus contends that, absent an individual arbitration agreement as opposed to a CBA, an employee cannot be held to have bargained away his rights to sue.

. . . Appellants rely upon a case where the Maryland Court of Appeals specifically addressed the question: "Do the strictures of federal preemption require that we impose an exhaustion requirement in the context of a state tort action for abusive discharge?" See Finch v. Holladay-Tyler Printing, Inc., 322 Md. 197, 586 A.2d 1275, 1278 (1991). In Finch, the court interpreted Lingle, supra, to mean that an employee need not resort to arbitration "when there is no need to construe the CBA or when the issue of whether or not the CBA was violated is irrelevant to the abusive discharge action." Id. at 1279. More recently, the Maryland Court of Appeals clarified the Finch holding, stating it "interpret[s] Finch as standing for the proposition that the exhaustion of remedies under a collective bargaining agreement is not required when the issues raised by the plaintiff’s wrongful discharge claim are not dependent upon an interpretation of the collective bargaining agreement." Gazunis v. Foster, 400 Md. 541, 929 A.2d 531, 544 (Md. 2007).

Similarly, virtually all federal circuits have held that an employee covered by a CBA has a right to sue to vindicate certain statutory rights or rights independent of the CBA without having to resort first to the collectively bargained grievance-arbitration procedures. [collecting cases] . . .

Addressing analogous issues, state courts have also held that exhaustion of contract arbitration remedies in a collective bargaining agreement is not required before an aggrieved party seeks redress in court for alleged violations of independent rights created by statute or based on violation of public policy. [collecting cases]

. . . We see no reason in principle why the common law claim at issue here could not be subject to arbitration, just as a statutory claim may be. The issue is whether the employees have in fact agreed to arbitrate that claim. Gilmer and Klieforth are distinguishable from our case because they involved agreements to arbitrate signed by the individual employee and enforceable under the Federal Arbitration Act or its District of Columbia counterpart. There is no similar agreement to arbitrate signed by the individual employees in this case, and courts currently are divided on whether a broadly-worded arbitration clause in a CBA waives an employee’s right to a judicial forum for a claim that does not arise out of the CBA. Compare Pryner, supra, 109 F.3d at 363-65 ("the union cannot consent for the employee by signing a collective bargaining agreement that consigns the enforcement of statutory rights to the union-controlled grievance and arbitration machinery created by the agreement") with Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 215 (4th Cir. 2007) (union-negotiated collective bargaining agreements that require the arbitration of statutory discrimination claims are valid and binding on unionized employees). The Supreme Court recently heard argument in a case which may resolve the issue. 14 Penn Plaza LLC v. Pyett, No. 07-581 (argued Dec. 1, 2008). We need not await that ruling, however. We will assume, without deciding, that an arbitration clause in a collective bargaining agreement that waived the right to a judicial forum for an independent claim would be enforceable.

In a case cited by amicus in support of its position, the Supreme Court held that a general arbitration clause in a CBA did not require the employee to use the arbitration procedure before seeking redress in court for an alleged violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 72, 82 (1998). The Supreme Court held that absent a "clear and unmistakable waiver of the covered employees’ rights to a judicial forum for federal claims of employment discrimination," which was not present, the employee could assert his claims in court without resorting to arbitration. Id. at 82. . . .

. . .To the extent that appellants can show that they are asserting rights that do not arise under the CBA, but rather ones that are distinctly separate and independent of it, their CBA does not by its terms restrict their right to a judicial forum. See, e.g., Finch, supra, 586 A.2d at 1278; Smith, supra note 9, 991 P.2d at 1143; Conaway, supra, 431 N.W.2d at 800. In its brief alternative ruling dismissing on the grounds of failure to exhaust grievance and arbitration remedies, the trial court did not focus on whether the claims asserted arise under the CBA or are independent of it and the significance of that distinction to its disposition. With respect to appellants Byrd and Quarles, whose claims must be remanded for further consideration under the preemption analysis, we cannot determine on the present record whether they are asserting claims that are, in fact, independent of the CBA. Therefore, upon remand, the trial court should make the necessary determination and consider, in light of the principles enunciated in this opinion, whether Byrd and Quarles must exhaust administrative remedies before proceeding. . . .

[Alan Kabat, Bernabei & Wachtel, PLLC]

DCOHR Finds Probable Cause in Age Discrimination Suit

The District of Columbia Office of Human Rights recently issued a probable cause finding on the age discrimination complaint brought by one of our clients against Potomac Apartment Group, LLC. Steven Leckar of Shainis & Peltzman and Dave Wachtel of Bernabei & Wachtel represent Our Client.                                                    

Our Client, 56 years old at the time of his termination in Spring 2007, worked for Potomac for four years before Potomac replaced him with a man in his twenties.

OHR based its finding on the disparity between Our Client’s age and his replacement’s, and the inconsistency of management’s explanations. Documents showed Potomac claimed the position was eliminated, but when Our Client returned two weeks after his last day to retrieve some belongings, he saw a younger man at his position doing the identical job he had just left. The General Manager then referred to the man behind the desk as “young blood.” Our Client never had a bad performance review, and although Potomac also claims he resigned, there is no resignation letter or evidence to support such a claim and Our Client had no desire or reason to quit since it was a relatively low stress job which suited Our Client.

The parties will convene for conciliation under the auspices of DCOHR. If the conciliation effort is unsuccessful, the District of Columbia Commission on Human Rights will hear the case.

Justin Dreyfuss

Client Wins Civic Courage Award

Mike German, a client of the firm, was honored at a ceremony last Thursday with an award for his courageous acts as an FBI whistleblower. The Joe A. Callaway Award for Civic Courage Ceremony and Reception took place at the Carnegie Institution of Washington Building and 2008 recipients of the award, aside from Mr. German, included George Christian, Peter Chase, Barbara Bailey and Jan Nocek, librarians who challenged the Patriot Act.  Each year The Shafeek Nader Trust for the Community Interest holds an event “to recognize individuals in any area of endeavor who, with integrity and at some personal risk, take a public stand to advance truth and justice, and who challenge unsatisfactory conditions in pursuit of the common good.”

Mr. German worked for sixteen years as an FBI Special Agent before a meeting between domestic and international terrorist organizations was improperly recorded. When Mr. German attempted to report the mishandling, the FBI retaliated against him by removing him from the investigation and denying any wrongdoing. The case was eventually brought before a Senate Judiciary Committee which stated “it is a lot closer to what Michael German described than what the FBI described.”

Justin Dreyfuss

The Firm Welcomes Two New Members

Bernabei & Wachtel, PLLC, is pleased to announce the addition of two bright new attorneys, Andrea Loveless and Julia Graff.

Ms. Loveless comes to us from the Lawyers' Committee where she was the tenth recipient of the George N. Lindsay Fellowship. She graduated from George Mason University School of Law in 2007 where she co-founded and served as President of the school's ACLU Chapter and was President of the Women's Law Association.

Ms. Loveless has shown a passion for civil rights for years now, starting with her first summer in law school where she worked with low income clients at Legal Services of Nothern Virginia. She jumped right into an internship with a civil rights firm that specialized in employment discrimination cases before selecting several more internships that supported and strengthened her interest in public interest.

Ms. Graff graduated summa cum laude from the University of Louisville in 1999 with majors in Political Science and Spanish, and received her J.D. from the American University Washington College of Law in 2005. Prior to joining Bernabei & Wachtel, PLLC, she worked at the Alan Morrison Supreme Court Assistance Project Fellow at Public Citizen Litigation Group, where her responsibilities included coordinating the Litigation Group's pro bono assistance to litigants in Supreme Court cases.

Prior to that, she was a Staff Attorney for two years at the American Civil Liberties Union of Delaware, where she handled cases on prisoners' rights, free speech issues, and the rights of criminal defendants. Between college and law school, Ms. Graff worked for three years for a grassroots human rights organization in Guatemala, Mexico and Colombia.

We are very happy to welcome them both onboard.

ABC News to Run Story Tomorrow on D.C. Firefighters Lack of Training for Mandatory Test

    Andrew McCarren of ABC news will run a report Tuesday, December 9th on the unfair situation many D.C. firefighters, including three firm clients, have found themselves in. Highly qualified firefighters who have passed more than six months of fire instruction and basic EMT training must suddenly pass a more advanced test called the Nation Registry Exam. The D.C. Fire Department did not give them training and many long term residents are unable to pass the advanced test without training. Some firefighters from other states that have already been given the training are passing the test whereas D.C. residents who have not been given the training are failing multiple times.
    The city's apparent solution to this problem of certifying its firefighters is to stick them in a back room where they study a book for eight hours a day thus keeping them off the streets where they could be fighting fires and saving lives. The piece will air tomorrow on Channel 7, at 5:30 pm.

Justin Dreyfuss

DCHRA tolling and individual liability decision

We are pleased to report a favorable D.C. Human Relations Act (DCHRA) decision, issued last week by Chief Judge Lamberth, in one of our firm’s cases. The decision is online at:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2007cv2311-22

Zelaya v. UNICCO Service Co., et al.

, No. 2007-CV-2311, 2008 WL 5008553 (D.D.C. Nov. 26, 2008).

Our firm represents Blanca Zelaya, who worked as a custodian for UNICCO, a contractor that provided cleaning services at several downtown office buildings. During much of her employment there, she was repeatedly subject to sexual harassment by her supervisor and two other male colleagues. In particular, her supervisor (Alarcon) made repeated sexual advances to her during her pregnancy, and he sought the aid of two colleagues to "monitor" her in an attempt to set her up for firing. Even when she returned to work after giving birth, the harassment continued unabated.

She filed her complaint with the DCOHR, which was cross-filed with the EEOC, and one year later, withdrew the DCOHR complaint and obtained a right-to-sue letter from the EEOC. After she filed her complaint, UNICCO retaliated against her by transferring her to another office building, where UNICCO knew it would soon lose the maintenance contract.

The defendants (represented by Jackson Lewis) attempted to argue that the DCHRA claims were not tolled while her complaint was pending with the DCOHR, which Judge Lamberth rejected, pursuant to the 2002 amendments to the DCHRA, as applied by the D.C. Court of Appeals in Estenos v. PAHO, 952 A.2d 878 (D.C. 2008). The court noted that it "declines to adopt defendants’ reading of this statute, which would render the tolling provision wholly ineffective with respect to administratively dismissed or withdrawn complaints."

Judge Lamberth also rejected defendants’ attempts to argue that individual liability under the DCHRA should only be applied to partners or other supervisors with an ownership interest in the company, instead recognizing that anyone who is a statutory employer, including "any person acting in the interest of such employer" can be held individually liable under the DCHRA, regardless of their ownership status.

Firm Client Wins Disability and Sexual Harassment Case

On October 31, 2008, Equal Employment Opportunity Commission Administrative Judge Francis Polito issued a decision finding disability harassment and sexual harassment in a case we’ll call Our Client v. Office of Personnel Management.  The Judge awarded substantial monetary damages, ordered that the supervisor receive harassment training, and ordered OPM to post notice of his finding for sixty (60) days.  He also awarded the full amount of attorney’s fees and expenses sought by our firm.

 

Our Client’s case broke some pre-conceived notions about harassment cases:  

 

●  What’s in a name?  The evidence showed that the Office of Personnel Management – the human resources experts for the entire federal government  -- never provided Our Client’s first- or second-level supervisor with any harassment training.

 

● Is a reasonable accommodation all a disabled employee gets?   Or, what about respect?  While OPM did accommodate our client, by allowing her to work from home after surgery, when the accommodation began, her supervisor almost immediately began expressing his hostility towards her.  Because the accommodation decision was made by a central accommodations office, and not by the supervisor, the compelling evidence that the supervisor was angered by the work from home arrangement resonated throughout the hearing.

 

●  How many ways are there to harass?  Because our Client spent critical amounts of time in the work-from-home arrangement, very little of the harassment was face-to-face.  Instead, Our Client’s supervisor sought out third parties, mainly corporate trainers working for OPM as contractors, and referred to Our Client as “soaking the government” and -- in an indelible incident – in vile, misogynistic language.  The Judge held that the fact that the supervisor went behind the client’s back did not excuse his conduct or OPM’s responsibility for it.

 

●  Is a doctor necessary?  All of the evidence of pain and suffering was from lay witnesses:  Our Client, her life partner, and the witnesses who had to tell Our Client how she had been maligned by her supervisor.  They explained that this formerly proud, confident professional had become withdrawn and self-doubting.  The Judge found that this evidence painted an accurate picture of the damage that this harassment had caused and justified the remedies that he awarded to Our Client.

 

Dave Wachtel and

Emily Read

of Bernabei & Wachtel represent Our Client.

 

D.C. Human Rights Act decision (hostile work environment)

The D.C. Court of Appeals issued a lengthy decision on DCHRA harassment claims, and remanding to the trial court to reconsider its sizable reduction of the attorney’s fee award. The court agreed that there was sufficient evidence for the jury to find that the employer (a real estate management company) and several of its managers had created a hostile work environment, and improperly blamed the employee for the ensuing problems.

However, the court remanded the attorney's fee award, since the trial judge erred in mechanically reducing the attorney’s fee award in proportion to the number of claims on which the employee prevailed, given that the factual issues were intertwined in all the claims, and the trial judge further erred in only allowing recovery by two of the employee’s five attorneys.

Some excerpts follow:

Fred A. Smith Mgmt. Co. v. Cerpe (D.C. Oct. 9, 2008).

http://www.dcappeals.gov/dccourts/appeals/pdf/07-CV-35+.PDF

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 07-CV-35, 07-CV-36

FRED A. SMITH MANAGEMENT CO., MARTIN J. MESMER, CHRISTOPHER WALLIS, & JULIE CREMIN, APPELLANTS/CROSS-APPELLEES,

v. ALEXANDRA CERPE, APPELLEE/ CROSS-APPELLANT.

Appeals from the Superior Court of the District of Columbia

(CAB-2337-03)

(Hon. Patricia A. Broderick, Trial Judge)

(Argued September 4, 2008 Decided October 9, 2008)

Leslie Deak and David B. Lamb for appellants/cross-appellees.

Keira M. McNett, with whom Mark Hanna and Elizabeth Ann Lawrence were on the brief, for appellee/cross-appellant.

Before WASHINGTON, Chief Judge, RUIZ, Associate Judge, and FARRELL, Associate Judge, Retired.

FARRELL, Associate Judge, Retired:

Alexandra Cerpe, formerly a resident property manager with Fred A. Smith Management Company (the Company), sued Christopher Wallis for sexual harassment/hostile work environment and the Company, Wallis, Martin J. Mesmer, and Julie Cremin for retaliatory discharge, both counts alleging violation of the District of Columbia Human Rights Act (DCHRA or the Act), D.C. Code § 2-1401.01 et seq. (2001). Cerpe sued as well for related common law torts including negligent hiring, training, and supervision. A jury returned verdicts against all of the defendants for retaliation, against Wallis for sexual harassment, and against the Company for negligent hiring, training and supervision; it rejected Cerpe’s common law claim of intentional infliction of emotional distress. It awarded compensatory and punitive damages, and the trial judge later granted — but only partly — Cerpe’s request for attorney’s fees under the DCHRA. On appeal, the defendants challenge liability on all of the counts, as well as the award of punitive damages. Cerpe cross-appeals challenging the trial judge’s reduction of the fee award requested.

We find no basis for disturbing the jury’s verdict on the claims of sexual harassment and retaliation, and for its award of punitive damages, but we reverse the verdict for negligent hiring, training and supervision in light of Griffin v. Acacia Life Ins. Co., 925 A.2d 564 (D.C. 2007), decided after trial of this case. And we vacate and remand for further consideration the reduced award of attorney’s fees.

. . . Evidence credited by the jury fairly allowed it to find that Wallis had begun importuning Cerpe sexually some six months after she was made resident manager at Wisconsin House, a property managed by the Company. Wallis was not then employed by the Company (he had worked for it previously), but less than a year later he was rehired and made Cerpe’s immediate supervisor. According to Cerpe’s testimony, Wallis continued making sexual advances, telling her, for example, that she "shouldn’t be bashful about anything because we are adults." He would sit in her office for hours at a time, stare at her, make sexually suggestive comments by asking about her personal life and revealing personal facts about his own, and comment about her looks and dress, saying things such as, "The way you look in that suit excites me — I’m going to have fantasies about you all day now." We set forth additional related evidence in discussing the punitive damage award, infra.

Cerpe complained of the sexual harassment to Mesmer in a phone call on May 3, 2002. (She testified that she had made repeated complaints to Mesmer before about Wallis, but had been told she had no choice but to work with him.) Although Mesmer admitted in reply that it was a "serious matter," on May 8 he instead gave Cerpe a letter of reprimand about her performance, instructing her that "any concerns you have pertaining to your duties or the building are to be brought to [Wallis’s] attention," and that her claims of sexual harassment could be just a "misunderstanding." Cerpe described the pattern of sexual advances to Cremin, who had been tasked to look into the complaint, but who — the jury evidently found — conducted a perfunctory investigation, talking only sporadically with Wallis about the matter and neither recording nor taking more than cursory notes of these conversations. As we discuss further below in regard to punitive damages, the investigation turned instead to Cerpe’s own performance, and on May 29, 2002, she was given a letter discharging her for cause based on supposed derelictions which the jury evidently found pretextual on the defendants’ part.

. . . Nevertheless, the defendants’ challenge to the sufficiency of the evidence on the counts of sexual harassment/hostile work environment and retaliation must be rejected. "Only when there is no evidentiary foundation on which a reasonable trier of fact could base a reliable verdict is a directed verdict proper." Jackson v. Condor Mgmt. Group, Inc., 587 A.2d 222, 224 (D.C. 1991). Viewing the evidence in the light most favorable to Cerpe, see id., we find ample evidence in the record supporting the jury’s twin determinations that Wallis sexually harassed Cerpe and that the Company, as well as its officers — Mesmer, Wallis and Cremin — retaliated against her for complaining of the harassment. . . .

III.

The jury awarded punitive damages against the Company, Wallis, Cremin, and Mesmer for retaliation, and against Wallis for hostile work environment sexual harassment. The defendants argue that Cerpe failed to prove the aggravated conduct or malicious state of mind that justified punishing them in this way. We disagree.

An award of punitive damages must be supported "by clear and convincing evidence that the [tortious] act was accompanied by conduct and a state of mind evincing malice or its equivalent." Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 938 (D.C. 1995); see also Washington Med. Ctr. v. Holle, 573 A.2d 1269, 1284 (D.C. 1990) (tortious act must be accompanied by "fraud, ill will, recklessness, wantonness, oppressiveness, wilful disregard of the plaintiff’s rights, or other circumstances tending to aggravate the injury" to justify punitive damages). Regarding sexual harassment, Cerpe testified that Wallis repeatedly steered conversations with her to sexual topics, such as telling her that "all men want one thing" and "they just think about sex." He suggested he could be her "therapist" at lunchtime and, in response to her request for health insurance, told her that he would help her get it if she "compl[ied with] his demands." According to Cerpe, he frequently telephoned her at night, saying "that he missed me, that I should be watching out the window to see if he was there, and his car was parked there; that I should know who’s watching me all the time . . . that we should go out for a drink." Especially important for present purposes, these actions continued despite Cerpe’s repeated requests for them to stop. She told Wallis she would not date a married man or co-worker and that she wanted a strictly "work relationship," but his importuning continued. Wallis’s continued harassment despite Cerpe’s pleas for him to stop was clear evidence of aggravation permitting the jury to find that he had acted maliciously.

As for retaliation, Cerpe presented evidence allowing the jury reasonably to find that the investigation of the harassment was not genuine but, instead, was designed to establish pretextual reasons for her termination. As related earlier, five days after reporting Wallis’s actions, Cerpe received a letter from Mesmer telling her to address "any concerns . . . pertaining to your duties or the building" to Wallis himself, since "it could be a misunderstanding." When Cremin, the executive vice-president, interviewed Cerpe a week later she told her, "If you want me to investigate this matter, you have to sign this waiver of investigation," presenting her with a pre-written waiver form. Although Cerpe testified — and the jury evidently believed — that she had described Wallis’s improper actions in detail to Cremin, she received a letter from Cremin, Mesmer, and Wallis soon afterwards (May 22) telling her that there was "nothing to substantiate" and that "each incident was a mutual conversation between two people that has been misrepresented to mean something else." Meanwhile (on May 15), Cerpe had received a letter from Cremin and Mesmer stating that she was being investigated for failing to rent car spaces and providing child care during work hours, and on May 29 Cremin and Mesmer gave her a letter terminating her for cause.

The reasons given for the termination, and their legitimacy, no doubt played a key role in the jury’s finding of malice or its equivalent. . . . Altogether, the proximity of the discharge to Cerpe’s complaint of harassment and the evidence that none of the proffered reasons for it had troubled management earlier support a jury finding that the officers contrived the reasons for firing her and thus were motivated by malice. See, e.g., Pendarvis v. Xerox Corp., 3 F. Supp. 2d 53, 57 (D.D.C. 1998) (evidence that supervisor knew absences were excused and lied about reason for firing plaintiff created jury issue on punitive damages). . . .

V.

Following the verdict, Cerpe moved for an award of attorneys’ fees and costs under D.C. Code §§ 2-1403.13 (a)(1)(E) and 2-1403.16 (b) (2001). She sought $466,296.00 in fees based upon the work of six attorneys and one student law clerk. The trial judge granted the motion in part, including in the award only the fees earned by Cerpe’s two lead counsel, and reduced the fee by twenty percent because Cerpe had prevailed against only four of the five defendants. The judge further reduced the fee by three eighths because only three of the eight original counts had been submitted to the jury. Accordingly, the judge awarded a total of $158,661.63 in attorneys’ fees. She declined to apportion the fees and costs among the four defendants and held them jointly and severally liable for the entire award.

. . . Cerpe cross-appeals arguing that the trial judge erred in reducing fees based on the dismissal of three counts of her complaint, her failure to recover against one of the defendants, and the trial judge’s determination that the number of attorneys was excessive. These claims have substantial merit.

. . . At the same time, though, we have rejected "a mathematical approach comparing the total number of issues in the case with those actually prevailed upon," which "provides little aid in determining what is a reasonable fee." Id. at 992 (quoting Hensley, 461 U.S. at 435 n.11). "[I]nstead the failure to prevail on [a particular] count must be considered along with the successful [count or counts] in determining [the claimant’s] overall degree of success." Goos v. Nat’l Ass’n of Realtors, 315 U.S. App. D.C. 397, 399, 74 F.3d 300, 302 (1996). In Lively, we upheld a twenty-five percent reduction of fees where verdicts in favor of the plaintiff on three of the four claims submitted to the jury were vacated after post-trial motions, 930 A.2d at 992, pointing out that, although the trial judge had not conducted an in-depth analysis of the billing records, he "did not simply take a mathematical approach" which would have resulted in a seventy-five percent reduction in fees. Id. at 993. Such a percentage cut to reflect less than complete success is acceptable, so long as it is tied to the overall degree of success and not a mere mathematical reduction in proportion to the number of unsuccessful claims.

Here, the complaint initially alleged eight counts, including claims for subterfuge, housing discrimination, and unpaid overtime, which were dismissed before trial. The judge dismissed the housing discrimination count because Cerpe’s eviction would create merely additional damages relevant to the retaliation claim rather than a separate cause of action. Cerpe argued that the subterfuge count had been based on Cremin’s misleading statements when she asked Cerpe to waive the investigation, but the judge likewise found this not to constitute a separate claim. At the same time, the judge acknowledged that most of the original eight counts, aside from the complaint for unpaid overtime, "were factually related," but she nonetheless reduced the claim by three-eights because only five of the eight counts had been submitted to the jury. This reduction of the fee by three-eighths reflects the approach we have rejected. Proof of the facts underlying the subterfuge and housing discrimination claims was relevant to Cerpe’s claim for retaliation and related damages, as the judge recognized. What the judge had to do, therefore, was consider whether Cerpe’s overall degree of success (prevailing on the inter-related retaliation and hostile work environment claims) justified the hours spent and the fee requested; a mathematical reduction of the fees in proportion to the number of counts not submitted to the jury was not a proper exercise of discretion. On remand the judge may eliminate hours spent on the unsuccessful claims or else determine a percentage reduction that reflects Cerpe’s overall success. . . .

Finally, Cerpe argues that the judge abused discretion in reducing the fees based on the judge’s perception that the number of attorneys employed was excessive. . . . Here, after concluding that the case had not been a "complex" one, the trial judge eliminated fees claimed by all but two of Cerpe’s attorneys, Elizabeth Lawrence and Mark Hanna, reasoning that to "[u]tiliz[e] just one attorney of the caliber and experience described [in Lawrence’s affidavit] would have been more than adequate to handle the plaintiff’s case" (though, "in an abundance of caution" the judge assumed that "it might be efficient and effective to have a junior attorney assist in some phases of the litigation"). This elimination of hours, however, did not purport to consider whether the work done by the attorneys besides Lawrence and Hanna had been duplicative or redundant; it rested simply on the finding that two (or two "plus") attorneys were enough. Moreover, the judge relied on the fact that counsel for the defendants had claimed fewer hours for similar tasks, a basis courts have recognized to be a tenuous one for reducing fees. See Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1151 (9th Cir. 2001); Harkless v. Sweeney Independent School District, 608 F.2d 594, 598 (5th Cir. 1979); Mirabal v. General Motors Acceptance Corp., 576 F.2d 729, 731 (7th Cir. 1978). On remand, the judge should consider whether the fees claimed by the other attorneys and law clerk represented inefficiency or duplication of work performed by Hanna and Lawrence, or whether those fees represented a "distinct contribution" to the litigation. Johnson, 706 F.2d at 1208.

[Alan R. Kabat, Bernabei & Wachtel, PLLC]