MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION ........................................................829
II. BACKGROUND ..........................................................829
III. ANALYSIS ............................................................831
A. A. Defendants' Motion For Judgment As A Matter of Law, New
Trial, Or Remittitur .........................................831
1. Judgment as a Matter of Law on Liability Issues .............831
a. Sufficiency of the Evidence — Sexual Harassment .........832
b. Sufficiency of the Evidence — Retaliation ...............836
2. Judgment as a Matter of Law and Remittitur on Damages ......840
a. Punitive Damages .......................................840
b. Emotional Distress Damages ..............................842
c. Back Pay and Medical Expenses ...........................846
3. New Trial ...................................................847
B. Glister's Motion For Equitable Relief And Front Pay ............854
1. Front Pay ...................................................854a. Factors in Determining Front Pay .......................855b. Calculation of Front Pay ................................8592. Injunction Against Primebank ................................8633. Additional Equitable Relief — Letter of Reference ...........867C. Glister's Motion for Attorney Fees and Costs ....................8681. Applicable Standards ........................................8692. Reasonable Hourly Rates .....................................8703. Reasonable Hours Worked .....................................872a. Reduction for Block-billing .............................873b. Reduction for Lack of Specificity .......................874c. Reduction for Failure to Follow Local Rule ...............875d. Reduction for Overstaffing ...............................875e. Problems with Billing Judgment and Format ................8774. Calculation of Fees ........................................8785. Award of Costs .............................................879D. Interest ........................................................8841. Pre-judgment Interest .......................................8842. Post-judgment Interest .....................................885IV. CONCLUSION .........................................................885A. Orders Regarding Post-Trial Motions .............................885B. Summary of Damages ..............................................885C. Order for Judgment ..............................................886
Plaintiff Mindy Gilster testified at trial, "I wanted to be left alone, and I wanted to do my work...." Gilster expected, as an employee with defendant Primebank, only the simplest guarantee of workplace equality promised by Title VII and the Iowa Civil Rights Act. "Men and women have every right to be left alone without sexual abuse in the workplace." Eich v. Bd. of Regents for Cent. Mo. State Univ., 350 F.3d 752, 762 (8th Cir.2003). Likewise, men and women have every right to be left alone after they report sexual harassment. A jury found that defendants Joseph Strub and Primebank violated these basic tenets of our civil rights laws when Joseph Strub sexually harassed Mindy Gilster and, later, when Strub and Primebank retaliated against Gilster for reporting the sexual harassment and retaliation she experienced. The jury awarded a total of $900,301.22 in damages.
Before me now are the parties' post-trial motions.
This sexual harassment and retaliation case arose from plaintiff Mindy Gilster's employment with Primebank at its Sioux City, Iowa, branch, where she worked as a credit administrator from December 3, 2007, until her termination on February 10, 2011. Gilster brought claims of sexual harassment and retaliation, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Iowa Civil Rights Act (ICRA), IOWA CODE § 216.1 et seq., against Primebank, Primebank, Inc.,
Beginning April 3, 2012, the parties tried the case to an eight-person jury. Following seven days of evidence and argument, the case was submitted to the jury on the morning of April 11, 2012. After approximately six hours of deliberation, the jury returned its verdict on April 11, 2012, in favor of Gilster on both her sexual harassment and retaliation claims. On Gilster's sexual harassment claim, the jury found that Joseph Strub's sexual harassment resulted in a significant change in employment status and that the harassment was sufficiently severe or pervasive to create a hostile environment.
The jury awarded Gilster a total of $900,301.22 in damages, broken down as follows: on Gilster's sexual harassment claim, $20,000 for past emotional distress, $60,000 for future emotional distress, $28,820.12 in back pay, $1330.49 for past medical expenses, and $200,000 in punitive damages; on Gilster's retaliation claim, $20,000 for past emotional distress, $140,000 for future emotional distress, $28,820.12 in back pay, $1330.49 for past medical expenses, and $400,000 in punitive damages. The question of whether to grant reinstatement or front pay was left for me to decide.
At a telephonic status conference on April 18, 2012, I set a 30-day deadline for any post-trial motions and indicated to the parties that I would defer entry of judgment until after resolution of the parties' post-trial motions. Before me now are Gilster's May 17, 2012, Motion For Equitable Relief And Front Pay (docket no. 80); Gilster's May 17, 2012, Motion For Attorneys' Fees And Expenses (docket no. 81); and the defendants' May 18, 2012, Motion For Judgment As A Matter Of Law, New Trial, Or Remittitur (docket no. 82).
I now turn to the analysis of the parties' post-trial motions, beginning with the defendants' Motion For Judgment As A Matter Of Law, New Trial, Or Remittitur.
The defendants renew their motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. They urge that insufficient evidence existed for the jury to find in Gilster's favor on her sexual harassment and retaliation claims. The defendants also move for judgment as a matter of law and, in the alternative, remittitur on punitive damages. Additionally, the defendants move for judgment as a matter of law on future emotional distress damages and, in the alternative, move for remittitur on future and past emotional distress damages. They also request remittitur on the jury's award of back pay and medical expenses. Finally, the defendants move for a new trial, based on comments Gilster's counsel made in her rebuttal closing argument. I take each issue in turn.
The defendants argue that the evidence produced at trial was insufficient to support the jury's verdict in favor of Gilster on her sexual harassment and retaliation claims.
See United Fire & Cas. Ins. Co. v. Garvey, 419 F.3d 743, 746 (8th Cir.2005) (quoting Pumps and Power Co. v. S. States Indus., 787 F.2d 1252, 1258 (8th Cir.1986)). I may not, however, "give [Gilster] `the benefit of unreasonable inferences, or those at war with the undisputed facts.'" Id. (quoting City of Omaha Employees Betterment Ass'n v. City of Omaha, 883 F.2d 650, 651 (8th Cir.1989)).
Of particular note in employment discrimination cases, "when the parties have developed a full trial record, [the court is] not concerned with plaintiff's prima facie case. What is relevant, at this point, is simply whether the plaintiff's evidence permits a reasonable inference of discrimination or retaliation." E.E.O.C. v. Kohler Co., 335 F.3d 766, 772 (8th Cir. 2003).
To prevail on a claim of sexual harassment by a supervisor, a plaintiff must show that "(1) she belongs to a protected group; (2) she was subject to unwelcome harassment; (3) a causal nexus exists between the harassment and plaintiff's protected group status; and (4) the harassment affected a term, condition, or privilege of her employment." See Brenneman v. Famous Dave's of Am., Inc., 507 F.3d 1139, 1143 (8th Cir.2007). There are two ways in which a plaintiff may demonstrate that the supervisor's harassment affected a term, condition, or privilege of her employment, see Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir.2004): a) the sexual harassment resulted in a "tangible employment action" against the plaintiff, meaning "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits," see Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); or b) the sexual harassment was "`sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)); accord Brenneman, 507 F.3d at 1143. The difference between these two avenues for proving that a supervisor's sexual harassment "affected a term, condition, or privilege of ... employment" is that, where the employer has taken no "tangible employment action," the employer may assert the Ellerth/Faragher affirmative defense to liability, which "consists of `two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.'" Weger v. City of Ladue, 500 F.3d 710, 718 (8th Cir.2007) (quoting Williams v. Mo. Dep't of Mental Health, 407 F.3d 972, 976 (8th Cir.2005), in turn quoting Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)) (alteration omitted).
Accordingly, I instructed the jury that, "To win on her claim of sexual harassment, Ms. Gilster must prove the following elements": 1) "One, Ms. Gilster was subjected to sexually offensive remarks and behavior from Mr. Strub."; 2) "Two, such conduct was unwelcome."; 3) "Three, such conduct was based on Ms. Gilster's sex."; 4) "Four, such conduct either (a) caused a significant change in Ms. Gilster's employment status, or (b) was sufficiently severe or pervasive that Ms. Gilster did find, and a reasonable person in her position would have found, that her working environment was hostile." Jury Instructions at 8-9 (docket no. 66).
The defendants argue that the evidence adduced at trial was insufficient for the jury to find in favor of Gilster on her sexual harassment claim. The defendants do not contest that Gilster proved the first three elements, but the defendants maintain that Gilster's claim of sexual harassment fails as a matter of law because there was not sufficient evidence for the jury to find that Strub's harassment a) caused a significant change in Gilster's employment status or b) was sufficiently severe or pervasive for a reasonable person to find the environment hostile, though the defendants do not contest that Gilster herself found the environment hostile. The jury here found both that Strub's harassment caused a significant change in Gilster's employment status and that Strub's harassment was sufficiently severe or pervasive for a reasonable person to find Gilster's work environment hostile. As explained above, however, because Gilster prevails on her claim if she proves either of these alternatives, I must deny the defendants' motion for judgment as a matter of law if I find, "viewing the evidence in the light most favorable to [Gilster]," that a "reasonable jury could have found," see Heaton, 534 F.3d at 887, either that Strub's harassment caused a significant change in Gilster's employment status or that Strub's harassment was sufficiently severe or pervasive for a reasonable person to find Gilster's work environment hostile.
I begin with whether the evidence was sufficient to demonstrate that Strub's harassment was sufficiently severe or pervasive for a reasonable person to find Gilster's work environment hostile. The question of whether a work "environment would reasonably be perceived ... as hostile or abusive" "is not, and by its nature cannot be, a mathematically precise test." See Harris, 510 U.S. at 22, 114 S.Ct. 367. "There is no bright line between sexual harassment and merely unpleasant conduct...." Henthorn v. Capitol Commc'ns, Inc., 359 F.3d 1021, 1026 (8th Cir.2004) (quoting Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir.1997)). Consequently, courts must examine "all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23, 114 S.Ct. 367;
Gilster testified to the following instances of conduct and remarks that Strub directed at her, beginning in approximately summer 2008 and continuing until July 2009, when she complained to Primebank. Gilster stated that when she began working at Primebank, she respected Strub as a boss and mentor. Gilster and Strub previously worked together at another local bank, and Strub actually recruited Gilster to work at Primebank's new Sioux City location. However, Gilster first began to feel uneasy with Strub when, on several occasions, Strub asked her to go with him to meet a client outside the office, but, rather than meeting a client, Strub ran errands with Gilster in the car. Strub often complimented Gilster's physical appearance and, when she wore a dress or skirt, he would say "nice legs," carrying out the "i" in "nice." Gilster started wearing only pants to work to avoid these comments. Strub once put his arm around her and told her that they should "hook up." On one occasion, when Gilster asked Strub about a bonus, he told her — in the lobby of the bank and in front of her coworkers — to come into his office, take out her teeth (Gilster testified that she wears dentures), and shut the door, which Gilster understood to refer to oral sex. After that incident, on another occasion, when Strub told another female employee that the employee owed him a favor, the employee responded that her teeth would not come out, and Strub told Gilster that she would have to pay for the other employee. One morning, Strub approached Gilster while she was fixing breakfast at the counter in the break room at work, placed his hands on the counter on either side of her, and leaned into her, with his pelvis touching her back side and his arms touching her arms. Another morning, Strub walked by Gilster's desk, picked up her orange juice, took a drink, and then dribbled it back out of his mouth into her cup. At a taping for a TV commercial for the bank, Strub told Gilster to bend down and show more bra to get more customers for the bank. He massaged her shoulders between five and ten times, and Gilster testified that Strub did so in an "intimate manner."
The defendants first argue that other witnesses did not corroborate Gilster's testimony and that Strub, during his testimony, denied all but the "denture comments" and a comment on Gilster's bra at the commercial shoot. The defendants further assert that, even accepting Gilster's testimony as true, the instances of Strub's conduct to which Gilster testified do not rise to the level of a hostile environment.
I reject the defendants' first argument regarding the lack of corroborating evidence for Gilster's testimony. At the
Moreover, I disagree with the defendants that a reasonable jury could not conclude, based on the evidence produced at trial, that a reasonable person would find Strub's harassment sufficiently severe or pervasive to create a hostile work environment. Strub "physically threaten[ed][and] humilliat[ed]" Gilster when he caged her against the counter and pressed his groin into her back side. See Harris, 510 U.S. at 23, 114 S.Ct. 367. He touched her on a number of other occasions by massaging her and, in one instance, putting his arm around her. See id.(indicating that frequency of incidents is a factor for courts to consider in determining whether environment was hostile). His comments — made in front of Gilster's coworkers, no less — suggesting that Gilster remove her dentures and perform oral sex on him were graphic, intensely personal, and incredibly humiliating. Strub also requested a sexual relationship with Gilster by suggesting they "hook up." While Strub's frequent comments on Gilster's appearance may seem relatively minor in and of themselves, they become more significant and demonstrate a pattern of harassing behavior, when viewed in concert with Strub's unwanted physical contact and graphic references to oral sex. See Eich, 350 F.3d at 759 ("[A] work environment is shaped by the accumulation of abusive conduct...."). Evaluating the numerous instances of harassing conduct and comments here, as a whole, I find that there is sufficient evidence for a reasonable jury to find, as the jury did here, that Strub's harassment was sufficiently severe or pervasive for a reasonable person to find Gilster's work environment hostile. See id. at 759 n. 1 (collecting cases in which a combination of offensive physical contact, requests
Because I have determined that sufficient evidence was adduced at trial for a reasonable jury to determine that Strub's harassment was sufficiently severe or pervasive to amount to a hostile work environment, I need not reach the question of whether Strub's harassment caused a significant change in Gilster's employment status. I deny the defendants' motion for judgment as a matter of law as to Gilster's sexual harassment claim.
To prevail on a claim of retaliation, a plaintiff must show that "(1) she engaged in protected conduct; (2) she suffered materially adverse employment action, action that would deter a reasonable employee from making a charge of employment discrimination or harassment; and (3) the materially adverse action was causally linked to the protected conduct." Fercello v. County of Ramsey, 612 F.3d 1069, 1077-78 (8th Cir.2010). A materially adverse action is one that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (citation and internal quotation marks omitted). The White Court explained that it defined a "materially adverse action" in intentionally broad terms "because the significance of any given act of retaliation will often depend upon the particular circumstances." Id. at 69, 126 S.Ct. 2405. In other words, "[c]ontext matters." Id.
To establish a causal link between the protected conduct and the adverse action, "the plaintiff must show that the protected conduct was a `determinative — not merely motivating — factor in the employer's adverse employment decision.'" Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 985 (8th Cir.2011) (quoting Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 1148 (8th Cir.2008)). The Eighth Circuit Court of Appeals has recognized that "direct evidence establishing causation ... is seldom available[,]" and plaintiffs, therefore, often must rely on "indirect evidence ... establishing an inference of retaliatory animus." See id. at 986 (citation and internal quotation marks omitted). Temporal proximity between the protected activity and the adverse action may give rise to such an inference, but "[g]enerally, more than a temporal connection is required...." Id. (citation and internal quotation marks omitted).
The jury found that both Strub and Primebank retaliated against Gilster. The defendants do not dispute that Gilster engaged in protected activity, but they argue that Gilster failed to establish a causal connection between her complaints and the alleged adverse employment actions. The defendants assert that Gilster relied almost exclusively on the timing of her protected activity, in relation to the adverse actions, to prove causation. The defendants maintain that too much time passed between Gilster's protected activity and the adverse actions to give rise to an inference of retaliation. Furthermore, the defendants contend that the evidence shows that Primebank fired Gilster for legitimate, non-discriminatory reasons — namely, her poor behavior at work and suspicious activity on her personal checking account at Primebank.
Gilster made her initial internal complaint with Primebank regarding Strub's sexual harassment on July 2, 2009. President and CEO of Primebank, Matthew Ahlers, and Ann Schulz, Vice President and human resources officer for Primebank, met with Gilster and determined her complaint was founded. On July 6, 2009,
Gilster filed her first complaint with the Iowa Civil Rights Commission (ICRC) on April 6, 2010. Primebank began monitoring Gilster's and Strub's work e-mail in April 2010 after receiving notice of Gilster's complaint from the ICRC. Primebank's legal counsel commenced an investigation of Gilster's claim, including interviewing all Primebank employees, other than Gilster. Ann Schulz's event log indicates that "bank counsel advised [employees] to alert Strub or Schulz, if any problems came up in the future regarding the Gilster situation." Joint Trial Ex. 2002 at 17 (docket no. 69-68). At trial, Gilster's counsel questioned Primebank employee Shelly Schlesser as to the precise "problems" employees were supposed to report:
Of note, when Primebank employee Lois Ohlendorf e-mailed Schulz about a mistake Gilster made on a loan, Schulz replied, "Thanks, Lois. I'll add this to my collection:)." Gilster's Trial Ex. 76 (docket no. 69-58).
Gilster filed this lawsuit on September 1, 2010. On December 27, 2010, Strub gave Gilster an "unsatisfactory" score on her annual performance review, and Primebank denied Gilster an annual pay raise in December 2010. Gilster filed a second complaint with the Iowa Civil Rights Commission on January 26, 2011. On February 3, 2011, Gilster discovered Primebank was monitoring her e-mails. She became upset and announced her discovery to other employees at Primebank's Sioux City branch. There was conflicting testimony at trial about whether Gilster's announcement
On February 10, 2011, Primebank terminated Gilster's employment. In the written letter of termination, signed by bank president Ahlers, Ahlers indicated that one of the reasons for Gilster's termination was her poor behavior, particularly the February 3, 2011, incident and the subsequent text messages. Ahler noted, "This behavior is representative of what we have been counseling you about for quite some time and is the type of behavior that contributed to your recent unfavorable employment evaluation." Gilster's Trial Ex. 45 (docket no. 69-39). As an additional reason for Gilster's termination, Ahlers cited suspicious transactions on Gilster's personal checking account at Primebank, including excessive overdrafts. Id.
I conclude, "viewing the evidence in the light most favorable to [Gilster]," that a "reasonable jury could have found," see Heaton, 534 F.3d at 887, that Strub and Primebank retaliated against Gilster because she complained about Strub's harassment and about retaliation against her. As to defendant Strub, a reasonable jury could find that several of Strub's actions towards Gilster constituted materially adverse employment actions and were motivated by retaliatory animus. Strub gave Gilster an unsatisfactory performance evaluation at her annual review in December 2010. See Gilster's Trial Ex. 30 (docket no. 69-25). The Eighth Circuit Court of Appeals "has often held `[a]n unfavorable evaluation is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient's employment.'" Higgins v. Gonzales, 481 F.3d 578, 586 (8th Cir.2007) (quoting Turner v. Gonzales, 421 F.3d 688, 696 (8th Cir.2005)), abrogated on other grounds, Torgerson v. City of Rochester, 643 F.3d 1031, 1058 (8th Cir.2011). That precise situation occurred here, as Primebank cited Strub's unfavorable evaluation as a reason for terminating Gilster in February 2011. See Gilster's Trial Ex. 45 (docket no. 69-39). Thus, Strub's unsatisfactory evaluation constituted a materially adverse action against Gilster. A reasonable jury could have inferred that retaliatory animus motivated Strub's review: for one, the timing of the evaluation suggests a causal connection between Gilster's protected activity and the poor evaluation. Gilster filed her complaint with the ICRC in April 2010 and filed this case in September 2010 — then, at her annual review in December, the next available opportunity for Strub to review her, she received an unsatisfactory evaluation. Furthermore, Strub's attitude in March 2010, after he learned of Gilster's complaining e-mail, suggests retaliatory animus, as he "was very frustrated this was coming up again" and stated he "felt like a whipped dog the last time, and I'm
Additionally, Strub's refusal to consider Gilster for a salaried position in December 2009 after she complained of sexual harassment also constitutes a materially adverse action. See White, 548 U.S. at 64, 126 S.Ct. 2405 (noting that Title VII's antiretaliation provision "is not limited to," but includes, "discriminatory actions that affect the terms and conditions of employment" such as "failing to promote" or "a significant change in benefits" (internal quotation marks omitted)). Of course, where "there [is] no promotional opportunity available ..., no reasonable employee would ... f[i]nd [an employer's] failure to promote ... to be materially adverse." See Moore v. Forrest City Sch. Dist., 524 F.3d 879, 885 (8th Cir.2008). Gilster testified that, before she complained of harassment, Strub indicated that she could become a salaried employee. Bank president Ahlers and vice president Schulz testified that Gilster was never eligible to become salaried, but Strub admitted at trial that he previously told Gilster it was a "possibility" that she could become salaried. Viewing the facts in the light most favorable to Gilster, a reasonable jury could have inferred that when Gilster inquired about a salaried position in December 2009, and Strub informed her that such a position was not possible, he did so to retaliate against Gilster for her complaints of harassment and retaliation against him in July 2009.
As to defendant Primebank, a reasonable jury could have found that Primebank terminated Gilster in retaliation for her complaints of sexual harassment and retaliation. The defendants are certainly correct that the temporal proximity of Gilster's first complaint with the ICRC in April 2010, and the filing of this case in September 2010, in relation to her termination on February 10, 2011, does not give rise to a strong inference of retaliation. Importantly, however, as Gilster points out, Primebank received notice on February 7, 2011, of Gilster's second ICRC complaint, which alleged additional incidents of retaliation, and, only four days later, Primebank terminated her employment. The close temporal proximity, a mere four days, between Gilster's second ICRC complaint and the defendants' termination of her employment gives rise to an inference of retaliatory animus. See Tyler, 628 F.3d at 986 (noting that timing may give rise to inference of retaliation).
Furthermore, Gilster's theory of causation at trial did not hinge on temporal proximity alone. Gilster showed that the defendants, after they learned of Gilster's first ICRC complaint, began monitoring Gilster and requested that other employees report any mistakes Gilster made on the job. A reasonable inference may be drawn, from Primebank's Orwellian monitoring of Gilster and from Schulz's "collection" of Gilster's "problems," that the defendants were looking for a reason to fire Gilster because they were tired of her complaints of retaliation.
Moreover, Gilster produced strong evidence to rebut the defendants' proferred legitimate, nondiscriminatory reasons for terminating her employment. As to the defendants' argument that they terminated Gilster for poor, disruptive behavior, Gilster produced evidence that, in the two years she worked at Primebank before she filed her ICRC complaints and this federal case, she received favorable employee evaluations. See Gilster's Trial Exs. 1, 18 (docket no. 69-1, 69-14). Regarding the defendants' argument that they fired Gilster for suspicious activity on
Sufficient evidence existed for the jury to find in Gilster's favor on her retaliation claim. Therefore, I deny the defendants' motion for judgment as a matter of law on both Gilster's sexual harassment and retaliation claims.
The defendants renew their motion for judgment as a matter of law as to punitive damages and, in the alternative, move for remittitur of Gilster's punitive damages based on Title VII's statutory cap on damages for employers of Primebank's size. Gilster sought punitive damages pursuant to Title VII only, as punitive damages are not available under the ICRA. See Baker v. John Morrell & Co., 382 F.3d 816, 827 (8th Cir.2004). The jury awarded Gilster $200,000 in punitive damages against Primebank on Gilster's sexual harassment claim and $400,000 in punitive damages against Primebank on Gilster's retaliation claim. The defendants maintain that the evidence at trial was insufficient to support the jury's punitive damages awards.
Punitive damages are appropriate in a Title VII case if the plaintiff shows that the employer, in intentionally discriminating against the plaintiff, acted with "malice," meaning evil motive or intent, or with "reckless indifference to the federally protected rights of [the plaintiff]." 42 U.S.C. § 1981a(b)(1); Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999); accord
I first address the jury's punitive damage award on Gilster's retaliation claim. Primebank maintains that there was insufficient evidence at trial to show that bank president Matthew Ahlers acted with malice or reckless indifference to Gilster's federally protected rights when he terminated Gilster. Again, in determining whether sufficient evidence existed to support an award of punitive damages, I view the facts and draw all reasonable inferences in Gilster's favor. At trial, Gilster's counsel questioned Matthew Ahlers about whether he knew retaliation was illegal: "Are you aware that firing Ms. Gilster for making good-faith complaints about sexual harassment and retaliation is against the law?" Ahlers responded, "Yes." Transcript of Ahlers's Testimony at 113:1-4 (docket no. 63). The Eighth Circuit Court of Appeals, reversing a district court's grant of judgment as a matter of law in favor of an employer on punitive damages in a pregnancy discrimination case, explained that, where a managing employee "testified that she knew that discrimination on the basis of pregnancy was illegal[,] [f]rom this evidence, a reasonable jury could infer that [the managing employee] knew that she may be violating federal law by considering pregnancy as a factor in rejecting [plaintiff's] application for employment." Siouxland, 578 F.3d at 926. Thus, judgment as a matter of law on punitive damages, in favor of the employer, is not appropriate where "evidence was presented to the jury that a managerial employee engaged in discrimination while knowing that federal law prohibited such discrimination." See id. Here, Ahlers testified that he knew retaliation for complaints of sexual harassment or retaliation violated the law. A reasonable jury could infer from this evidence that Ahlers knew that he may have been violating federal law by firing Gilster in retaliation for her protected activity. Furthermore, Primebank does not appear to dispute that Ahlers, as Primebank's president and CEO, served in a "managerial capacity" and "act[ed] within the scope of [his] employment" when he fired Gilster. See id. at 925-26 (finding that managing partner who fired employee was "indisputably a managerial employee acting within the scope of his employment"). Therefore, there is sufficient evidence to support the jury's award of punitive damages against Primebank on Gilster's retaliation claim.
I need not reach the question of whether punitive damages are appropriate on Gilster's sexual harassment claim because she cannot recover those damages,
The defendants also move for judgment as a matter of law as to future emotional distress damages, arguing that there was insufficient evidence for a reasonable jury to award Gilster any future emotional distress damages. Additionally, and in the alternative, the defendants argue that Gilster's past and future emotional distress damages are excessive and move for remittitur of these damages.
"A plaintiff is entitled to damages for emotional distress when there is evidence of actual emotional distress caused by an employer's discriminatory acts...." See Christensen v. Titan Distribution, Inc., 481 F.3d 1085, 1096 (8th Cir. 2007). The Eighth Circuit Court of Appeals has repeatedly held that, "to support a claim for emotional distress, the claim `must be supported by competent evidence of genuine injury.'" Heaton, 534 F.3d at 891 (quoting Forshee v. Waterloo Indus., Inc., 178 F.3d 527, 531 (8th Cir.1999)). "A plaintiff's own testimony can be sufficient for a finding of emotional distress, and medical evidence is not necessary[,]" though "[t]he plaintiff's testimony must offer specific facts as to the nature of his claimed emotional distress and the causal connection to [the employer's] alleged violations." Christensen, 481 F.3d at 1097 (citation and internal quotation marks omitted).
Gilster testified that her job at Primebank, before the sexual harassment and retaliation began, gave her a great sense of self-worth and satisfaction. Gilster explained that Strub's sexual harassment made her feel humiliated and degraded. She stated that Strub's sexual harassment brought up memories from her
First, as to whether sufficient evidence existed for a reasonable jury to award Gilster future emotional distress damages, I find that the testimony of Gilster, her husband, and Nurse Practitioner Pratt, all of whom testified about "specific facts as to the nature of [Gilster's] claimed emotional distress and the causal connection to [Strub and Primebank's] alleged violations," see Christensen, 481 F.3d at 1097, was more than sufficient to provide "competent evidence of genuine injury" in the future, see Heaton, 534 F.3d at 891; accord O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1257 (10th Cir.2001) (concluding, in race discrimination and retaliation case, that testimony of plaintiff and his wife "enabled the jury to reasonably determine that Mr. O'Neal would suffer future emotional distress," where plaintiff testified about "inability to sleep and loss of appetite" and plaintiff's wife "corroborated [plaintiff's] statements, testifying that [plaintiff's] condition had gotten worse since his termination" and that he was "more worried and very unhappy"). Thus, I deny the defendants' motion for judgment as a matter of law as to future emotional distress damages.
Second, I address whether the jury's awards of past and future emotional distress damages were excessive. "[A] district court should order remittitur only when the verdict is so grossly excessive as to shock the conscience of the court. A verdict is not considered excessive unless there is `plain injustice' or a `monstrous' or `shocking' result." Eich, 350 F.3d at 763 (citations and some internal quotation marks omitted). Specifically, "[a]wards for pain and suffering are highly subjective and the assessment of damages is within the sound discretion of the jury, especially when the jury must determine how to compensate an individual for an injury not easily calculable in economic terms." Christensen, 481 F.3d at 1097 (citation and internal quotation marks omitted). On Gilster's sexual harassment claim, the jury awarded $20,000 for past emotional distress and $60,000 for future emotional distress. On her retaliation claim, the jury awarded $20,000 for past emotional distress and $140,000 for future emotional distress. The defendants argue that "th[e] record does not establish the existence of a genuine injury[,]" Defendants' Brief at 35 (docket no. 82-1), and they urge that the
I disagree. Gilster presented evidence of genuine injury through her own testimony, her husband, and Nurse Practitioner Pratt. Their testimony indicated that Gilster suffered and will continue to suffer anxiety and depression, as a result of the sexual harassment and retaliation she experienced. She takes medicine for anxiety and depression. Strub humiliated and degraded Gilster, often in front of her coworkers. Strub's harassment recalled painful memories from Gilster's childhood. Gilster gained a significant amount of weight during the time that Strub and Primebank retaliated against her. After she was fired, she developed a drinking problem and began cutting herself. She lost her sense of self-worth. The evidence here is certainly sufficient to establish "genuine injury" as a result of sexual harassment and retaliation. I reject the defendants' argument that I must reduce Gilster's damages because the medical records did not corroborate the extent of emotional distress to which she and other witnesses testified. For one, "medical evidence is not necessary" to support an award of emotional distress damages, see Christensen, 481 F.3d at 1097, though, of course, Gilster presented medical evidence in the form of Nurse Practitioner Pratt's testimony. Furthermore, it was the jury's role to reconcile the evidence in this case, and I do not disturb the jury's conclusions where, as here, there was sufficient evidence from Gilster, her husband, and Nurse Practitioner Pratt for the jury to issue the emotional distress awards it did.
Given the evidence at trial, the jury's award of $80,000 in emotional distress damages for sexual harassment and $160,000 for retaliation does not "shock the conscience of the court." See Eich, 350 F.3d at 763. The cold record does not adequately reflect the devastating loss of self-esteem and self-worth that Gilster felt, as a result of the sexual harassment and retaliation she suffered. In Circuit Judge Donald Lay's powerful words, sexual harassment "destroy[s] the human psyche as well as the human spirit." See Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1304 (8th Cir.1997). Furthermore, I was not at all surprised that the jury awarded significantly higher emotional distress damages on Gilster's retaliation claim than her sexual harassment claim. Gilster had enormous self-esteem wrapped up in her dream position as a bank credit administrator. The jury could have easily determined, on the evidence presented here, that Primebank's illegal retaliatory termination created an unbounded wellspring of emotional distress that dramatically crushed Gilster's personal and emotional sense of well-being and self-worth. World-renowned American psychologist Abraham Maslow wrote, "Healthy self-esteem is based not only upon approval from others, but also upon actual achievements and successes and upon the realistic self-confidence which ensues." ABRAHAM H. MASLOW, TOWARD A PSYCHOLOGY OF BEING 221 (3d ed.1999). The defendants, by illegally discharging Gilster, cruelly deprived her not only of the approval that comes with doing one's job well, but also of the opportunity for personal achievement and success — so essential to a positive view of one's self-worth.
Additionally, although comparisons to other cases are, ultimately, of limited use because every case is different, I note that the jury's awards here, given the evidence of Gilster's anxiety and depression, are not outside the heartland of awards the Eighth Circuit Court of Appeals has affirmed in other discrimination cases. See Eich, 350 F.3d at 763 (collecting cases). I find that the jury's total award of emotional distress damages of $240,000 was well "within [its]
The defendants also move for remittitur on Gilster's back pay and medical expenses. The jury awarded Gilster back pay and medical expenses twice, once on her sexual harassment claim and once on her retaliation claim. The parties agree, as do I, that Gilster should recover only once for back pay and medical expenses. Therefore, I reduce Gilster's back pay to $28,820.12 and her past medical expenses to $1,330.49.
The parties dispute, however, whether the entire amount of the back pay award is recoverable. Gilster requested, and the jury awarded, $28,820.12 in back pay, a sum that included paid sick leave, paid vacation, and paid holidays. Gilster's Trial Ex. 54 (docket no. 69-46). The defendants argue that permitting Gilster to recover for sick days, paid vacation, and paid holidays is double compensation, as these days have no monetary value and because Gilster "always used all of her sick days [and vacation]." I disagree. Back pay must be "fashion[ed] ... in order to make the Title VII victim whole." See E.E.O.C. v. Dial Corp., 469 F.3d 735, 743 (8th Cir.2006) (citation and internal quotation marks omitted). As a Primebank employee, Gilster received not just her wages, but also vacation, sick leave, and holidays. The defendants' retaliation deprived her of these benefits. To approach the goal of making Gilster whole — to the extent this can be accomplished through monetary damages — she should recover the value of these days as part of her back pay. See Hartley v. Dillard's, Inc., 310 F.3d 1054, 1062 (8th Cir.2002) (ADEA case affirming back pay award that included vacation days); Rasimas v. Mich. Dep't of Mental Health, 714 F.2d 614, 626 (6th Cir.1983) (Title VII case considering appropriate back pay and concluding, "Sick leave, vacation pay, pension benefits and other fringe benefits the claimant would have received but for discrimination should also be awarded."). The defendants, other than arguing that sick days, vacation, and holidays have no value, do not object to the way in which Gilster calculated the value of the sick days, vacation, and holidays, and I note that Gilster appropriately subtracted the value of any leave and holidays at her new job from the back pay she sought from Primebank. See Dial, 469 F.3d at 744 ("[T]he well established rule for calculating back pay [is] the difference between the amount the claimant would have earned absent the discrimination and the amount of wages actually earned during the relevant period."). Therefore, I deny the defendants' request to deduct from Gilster's back pay award the value of sick days, vacation, and holidays.
The defendants also assert that Gilster's back pay should be reduced, based on their "after acquired evidence" defense. See McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 362, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995) (explaining that "[o]nce an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information...." and holding that an employee's back pay, in such circumstances, "should be calculat[ed] ... from the date of the unlawful discharge to the date the new information was discovered"). The defendants asserted at trial that they would have fired Gilster anyway in September 2011, when they discovered that she was using her work e-mail to
The defendants move for a new trial based on certain statements in Gilster's rebuttal closing argument that, the defendants argue, were so prejudicial as to require a new trial. Federal Rule of Civil Procedure 59(a) provides: "The court may, on motion, grant a new trial on all or some of the issues — and to any party — ... after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court...." FED. R.CIV.P. 59(a)(1)(A). "A new trial should be granted where the improper conduct of counsel in closing argument causes prejudice to the opposing party and unfairly influences a jury's verdict." Campos v. City of Blue Springs, Mo., 289 F.3d 546, 552 (8th Cir.2002) (citation and internal quotation marks omitted). Where a party failed to object to a statement in closing argument at trial, courts review only for plain error, meaning that a new trial is warranted "only in extraordinary situations, when the error is so prejudicial as to cause a miscarriage of justice." See Manning v. Lunda Constr. Co., 953 F.2d 1090, 1092-93 (8th Cir.1992) (citation, internal quotation marks, and alteration omitted). Where a party did object to statements in closing argument, a new trial is required if the statements were "not only ... plainly unwarranted but also clearly injurious." City of Malden, Mo. v. Union Elec. Co., 887 F.2d 157, 164 (8th Cir.1989). Importantly, the defendants, as the complaining party, "bear[] the burden of making a concrete showing of prejudice." Id. "`[I]mproper comments during closing arguments rarely rise to the level of reversible error.'" Christmas v. City of Chicago, 682 F.3d 632, 642 (7th Cir.2012) (quoting Valbert v. Pass, 866 F.2d 237, 241 (7th Cir.1989)). The Eighth Circuit Court of Appeals has admonished,
Harris v. Zurich Ins. Co., 527 F.2d 528, 531 (8th Cir.1975) (quoting Chi. & N.W.
The law regarding proper subject matter for closing arguments is nebulous and open to a variety of interpretations.
IOWA R. PROF'L CONDUCT 32:3.4(e). As to closing argument, however, no court or lawyer could interpret literally the ethical rules' prohibition on "allud[ing] to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence" because it is axiomatic that lawyers in civil cases may use metaphor, anecdotes, or allusions to aid in their summation of the evidence. See Harris, 856 F.2d at 68 (approving counsel's use of Ann Landers column in closing and noting, "There is nothing improper in a civil case with a lawyer's citing widely recognized authorities during a closing statement (though Shakespeare and the Bible come more readily to mind than Ann Landers); on the contrary, this is sometimes an effective, and certainly a time-honored method of argument.... The letter was only a general observation on human behavior, not a comment on the particular facts of this case."). The rub, of course, is to determine when lawyers have crossed the line from permissible anecdotes and analogies, meant to aid in their presentation of the evidence, into the dangerous and prejudicial territory of suggesting to the jury that it should decide the case on something other than the evidence before it.
The defendants direct me to a number of comments made by Gilster's counsel in her rebuttal closing argument. I first review the one portion of Gilster's rebuttal closing argument to which the defendants did object, keeping mind that these remarks require a new trial only if they were "plainly unwarranted [and] clearly injurious," see City of Malden, 887 F.2d at 164:
Transcript of Rebuttal Closing Argument at 16:9-17:9 (docket no. 82-4).
The defendants argue that, in referring to her own experiences with sexual harassment, Gilster's counsel improperly validated and vouched for the credibility of Gilster's claims of sexual harassment and retaliation.
However, the defendants have failed to meet their burden to "mak[e] a concrete showing of prejudice." See City of Malden, 887 F.2d at 164. It was undisputed that Gilster complained about sexual harassment. Additionally, Gilster testified about her own fears before making her complaint, and her husband corroborated her testimony. Thus, the record already included evidence of the fear that Gilster might have felt before lodging her complaint, and I see little to no prejudice that could result from counsel's efforts to emphasize this point. Moreover, I believe the lawyers on both sides would agree that my practice is to give lawyers in my courtroom significant leeway when they interact with the jury, from jury selection to opening statements and closing arguments. See Christmas, 682 F.3d at 642 (suggesting that leeway given to both sides lessened any possible prejudice from inappropriate comments by counsel). Furthermore, as I have already noted, the lawyers in this case were zealous and dedicated in their representation; I believe that this is precisely the type of situation contemplated by the Eighth Circuit Court of Appeals when it cautioned courts against ordering new trials based on comments made in the context of a "hotly contested trial." See Zurich Ins., 527 F.2d at 531.
I am not convinced by the defendants' argument that the size of the verdict, particularly emotional distress damages, is "prima facie evidence" that counsel's remarks prejudiced the jury. See Defendant's Brief at 24 (docket no. 82-1). The defendants assert that Gilster's case turned on her credibility, and that counsel's remarks improperly tipped the scales in her favor. First, Gilster's emotional distress damages, in particular, did not turn solely on Gilster's testimony; both Gilster's husband and Nurse Practitioner Pratt corroborated Gilster's emotional distress. Additionally, although Gilster's credibility was certainly central to this case, Gilster's success did not hinge only on her credibility. Gilster presented independent evidence, beyond her own testimony, that cast doubt on the credibility of the defendants, by showing that their alleged reasons for firing her were pretext. The jury could have made the reasonable inference that if the defendants would lie about their reasons for firing Gilster, the defendants' credibility, as a whole, was suspect.
I now review, for plain error, those comments to which the defendants did not object, keeping in mind the high hurdle the defendants must clear in order to establish that a new trial is required — that these statements were "so prejudicial as to cause a miscarriage of justice." See Manning, 953 F.2d at 1092-93. I evaluate prejudice in the context of the entire trial. See Silbergleit v. First Interstate Bank of Fargo, N.A., 37 F.3d 394, 398 (8th Cir. 1994). If I determine that any particular comment was improper, I consider the prejudice from that comment in concert with prejudice from any other improper comments — both those to which the defendants did not object and those to which they did object, analyzed above — to decide if, together, they caused a miscarriage of justice. See id. (ordering new trial, where plaintiff in age discrimination case objected to defense counsel's question about plaintiff's wealth but not to questions about his religion and unemployment benefits, and reasoning, "It is not necessary that we decide whether any one of these evidentiary issues would be a sufficient basis for the grant of the new trial, as that is not the issue before us. When all the objectionable episodes are viewed together, however, we conclude that evidence came before the jury that was improper and prejudicial. In so far as there is any doubt that portions of the evidence were not the subject of objection, the evidence, taken together, certainly is plain error." (citation omitted)).
I discuss together several comments by Gilster's counsel in which she referred to how she, personally, felt about sex discrimination in the workplace:
Transcript of Rebuttal Closing Argument at 5:19-25 (docket no. 82-4).
Id. at 6:5-10.
Id. at 14:2-5. I agree with the defendants that, as a general matter, lawyers should not inject personal beliefs or personal views of the facts of the case into closing argument. See Segal, 649 F.2d at 604. Here, however, although Gilster's counsel referred to herself in the first person, I find that a reasonable juror would hear these comments, as I did at trial, and understand that Gilster's counsel meant to refer to how people generally feel about their workplaces, what they can expect in the workplace versus outside of it, and how women, as a general matter, might react to sex discrimination. I do not find them to be improper. See Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 269 (5th Cir.1994) ("Even experienced trial lawyers have been known to occasionally and inadvertently use the word `I' during closing arguments.").
I next address a comment in which Gilster's counsel referred to an Iowa Civil Rights Commission handout that was not introduced as evidence:
Transcript of Rebuttal Closing Argument at 15:20-16:4 (docket no. 82-4). The Iowa Civil Rights Commission handout was not an exhibit in evidence, and it is well-settled that counsel may not argue facts not in evidence. See Vazquez-Garcia, 340 F.3d at 641. I am not convinced this argument was improper, however. Counsel did not suggest that the state agency handout was a document the jury should consider as evidence. Rather, counsel referred to the handout to help the jury understand retaliation generally, which is more akin to a lawyer's permissible allusion to a "widely recognized authority," see Harris, 856 F.2d at 68, than an improper reference to material not in evidence. Moreover, even if improper, I see no prejudice, as the reference to the handout itself was fleeting, see City of Malden, 887 F.2d at 164 (noting brevity of improper comment reduces prejudice), and the thrust of counsel's argument — explaining fear of retaliation in the workplace — was entirely permissible.
Gilster's counsel also twice referred to the experiences of her other clients:
Transcript of Rebuttal Closing Argument at 4:1-3 (docket no. 82-4).
Next, I examine the most problematic comments of those to which the defendants did not object at trial — two instances in which Gilster's counsel vouched for Gilster's credibility:
Transcript of Rebuttal Closing Argument at 12:12-15.
Id. at 13:6-12. The law is clear: counsel cannot vouch for her client's or a witness's credibility in closing arguments. Segal, 649 F.2d at 604; Canada Dry Corp. v. Nehi Beverage Co., Inc. of Indianapolis, 723 F.2d 512, 526-27 (7th Cir.1983) (noting counsel's argument that his client was an "honest person" was improper but finding no prejudice); see also IOWA R. PROF'L CONDUCT 32:3.4(e). I agree with the defendants that these comments were clearly improper.
Nonetheless, the defendants' indignance at these comments rings hollow, as defense counsel also tread on dangerous ground by commenting on the credibility and integrity of Gilster's counsel. When addressing Gilster's testimony that Strub's sexual harassment brought back memories of the sexual abuse she suffered as a child, defense counsel argued that Gilster's lawyers engaged in strategies to mislead the jury:
Transcript of Defense Closing Argument at 14:6-16 (docket no. 88) (emphasis added). Defense counsel's insinuation that Gilster's case was a series of "clever strateg[ies] by her lawyers to invoke more sympathy and result in a bigger verdict" was improper. See United States v. Holmes, 413 F.3d 770, 775 (8th Cir.2005) (finding that prosecutor's statements "accusing defense counsel of conspiring with the defendant to fabricate testimony" were "highly improper because they improperly encourage the jury to focus on the conduct and role of [the defense] attorney rather than on the evidence of [the defendant's] guilt. Such personal, unsubstantiated attacks on the character and ethics of opposing counsel have no place in the trial of
As noted above, courts are reluctant to find prejudice when a case is "hotly contested" and both parties test the boundaries of appropriate remarks for closing argument. See Zurich Ins., 527 F.2d at 531; Christmas, 682 F.3d at 642 ("Plaintiffs are not very precise on how Defendants' counsel's conduct prejudiced the jury. It appears the district judge gave both parties latitude in presenting their cases to the jury."). Here, both parties vociferously argued their cases and struck hard blows. Moreover, the two isolated incidents of vouching by Gilster's counsel, even absent defense counsel's comments, are not so prejudicial as to require a new trial. Again, Gilster's case did not turn solely on her own credibility, as she marshaled extensive evidence to rebut the defendants' alleged nondiscriminatory reasons for firing her, which called the defendants' credibility, as a whole, into question. Thus, in the context of the entire trial, I do not find the two instances of vouching by Gilster's counsel to be "so prejudicial as to cause a miscarriage of justice." See Manning, 953 F.2d at 1092-93.
In sum, none of the improper comments, to which the defendants did not object, is prejudicial when considered separately, as explained above. Considering them in concert with the comments to which the defendants did object, I am convinced that any prejudicial effect from Gilster's counsel's improper closing remarks, even when aggregated, did not "cause a miscarriage of justice," see Manning, 953 F.2d at 1092-93, because I specifically instructed the jury that lawyers' arguments are not evidence and reminded the jury, after they heard closing arguments, that they must decide this case solely on the evidence before them. See Jury Instructions at 4, 33 (docket no. 66).
Therefore, I deny the defendants' motion for new trial.
Gilster has moved for front pay and for an injunction against Primebank. I consider each in turn.
In recognition of the opportunities for future employment that individuals may lose as a result of employment discrimination and retaliation, Title VII provides two alternate forms of relief: reinstatement and front pay. See Baker v. John Morrell & Co., 263 F.Supp.2d 1161, 1170 (N.D.Iowa 2003). Reinstatement of employment with the defendant employer is the preferred remedy of the two, and front pay may only be awarded after a court determines that "reinstatement is impractical or impossible...." Sellers v. Mineta, 358 F.3d 1058, 1064 (8th Cir.2004). "Substantial hostility, above that normally incident to litigation, is a sound basis for denying reinstatement." United Paperworkers Int'l Union, AFL-CIO, Local 274 v. Champion Int'l Corp., 81 F.3d 798, 805 (8th Cir.1996).
After the case was submitted to the jury, the parties presented evidence to me regarding reinstatement and front pay. Gilster testified that she wanted to be reinstated at Primebank. The defendants stated that they opposed reinstatement, and Primebank's HR officer Ann Schulz testified that she did not believe reinstatement would be possible, given the extreme hostility between Gilster and Primebank's employees and management. After hearing the evidence, I told the parties that, although I recognized reinstatement to be
I now turn to the possibility of front pay. Gilster moves for nine years, eight and one half months of front pay, totaling $279,238.80. The defendants insist that no front pay, or one year at most, is appropriate. "A district court may exercise its equitable discretion to award sufficient front pay to make a party whole when reinstatement is impractical or impossible." E.E.O.C. v. HBE Corp., 135 F.3d 543, 555 (8th Cir.1998). "An equitable award of front pay is generally appropriate when reinstatement must be denied." United Paperworkers Int'l Union, 81 F.3d at 805. The Eighth Circuit Court of Appeals has instructed that front pay "should address the plaintiff's equitable needs, including the ability to obtain employment with comparable compensation and responsibility." Ollie v. Titan Tire Corp., 336 F.3d 680, 687 (8th Cir.2003); accord Christensen, 481 F.3d at 1098. In considering whether front pay is proper and the appropriate duration of a front pay award, I look to Ogden v. Wax Works, Inc., 29 F.Supp.2d 1003 (N.D.Iowa 1998), aff'd, 214 F.3d 999 (8th Cir.2000), in which I analyzed, in detail, the equitable remedy of front pay and the factors that may be important in determining the length of a front pay award.
Ogden, 29 F.Supp.2d at 1015.
"[A] front pay award must be based on evidence." Salitros v. Chrysler Corp., 306 F.3d 562, 571 (8th Cir.2002). In making factual findings as to front pay, "the district court is not free to reject or contradict findings by the jury on issues that were properly submitted to the jury, but the district court `retains its discretion to consider all the circumstances in th[e] case when it determines what equitable relief may be appropriate.'" Newhouse v. McCormick & Co., Inc., 110 F.3d 635, 641 (8th Cir.1997) (quoting Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1101 (8th Cir. 1982)); accord Salitros, 306 F.3d at 573 ("In fashioning equitable relief, the district court may take into account facts that were not determined by the jury, but it may not base its decision on factual findings that conflict with the jury's findings.").
Gilster is thirty-two years old and has an additional life expectancy of 49.8 years. Generally, a plaintiff's "young age should improve her future opportunities to mitigate through other employment." United Paperworkers Int'l Union, 81 F.3d at 805. I find that Gilster's young age and ability to work for many years in the future "do[] not counsel against an award of front pay but rather ... against a lengthy award." See Baker, 263 F.Supp.2d at 1177.
Gilster worked for Primebank for three years and two months. While not as long as other cases in which I determined that the plaintiff's length of employment strongly supported a front pay award, see, e.g., Dollar v. Smithway Motor Xpress, Inc., 787 F.Supp.2d 896, 921 (N.D.Iowa 2011) (nine years with defendant employer); Baker, 263 F.Supp.2d at 1178 (seventeen years), three years shows stability in Gilster's employment with Primebank. Moreover, prior to Primebank, Gilster had worked for six years at other local banks, which also demonstrates stability in the banking industry. Thus, I find this to be a factor that favors front pay.
I consider the third and sixth factors together. Although Gilster was an at-will employee, I find it highly likely that she would have remained in her position, absent the retaliation that followed Gilster's complaints. Primebank clearly thought of Gilster as an asset, at least when it first hired her: Strub specifically recruited Gilster from a local competitor to join Primebank's new Sioux City branch. Gilster testified that she loved her job at Primebank, found it fulfilling, and wished she still worked there. Gilster's performance reviews were extremely positive in the first two years she worked at Primebank and indicated that she was great with customers and skilled
Gilster is able to work full-time and has found employment as a full-time assistant manager, thirty hours per week,
Although there was ample evidence at trial that a number of Primebank employees have worked at Primebank for many years, there was little evidence as to the typical length of time other employees held Gilster's precise position. As Gilster notes, however, there were multiple testifying employees who began working for Primebank many years ago and gradually advanced from positions, such as teller, to upper management, suggesting that even though their positions might change, employees stay at Primebank. Though I do not speculate as to whether Gilster would have been promoted at Primebank, I note that Primebank does appear to keep its
"A Title VII claimant seeking... front pay damages has a duty to mitigate those damages by exercising reasonable diligence to locate other suitable employment and maintain a suitable job once it is located." Baker, 263 F.Supp.2d at 1179. "The burden of proving that the employee did not make reasonable efforts is on the defendant." Excel Corp. v. Bosley, 165 F.3d 635, 639 (8th Cir.1999). As the Eighth Circuit Court of Appeals has explained,
Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1065 (8th Cir.1988). "In general, a plaintiff fails to mitigate adequately and therefore is not entitled to front pay to the extent he or she fails to remain in the labor market, fails to accept substantially similar employment, fails diligently to search for alternative work, or voluntarily quits alternative employment without good reason." Dollar, 787 F.Supp.2d at 922 (citation, internal quotation marks, and alterations omitted).
I find that Gilster has made an "honest, good faith effort" to mitigate her damages by beginning full-time work at Maurice's nearly immediately after she was fired by Primebank. She has sought at least four jobs in the banking industry and two jobs as an office manager but has not been accepted. The defendants argue that Gilster has failed to mitigate by not completing her college degree. I disagree. The defendants demand far beyond an "honest, good faith effort," when they require a mother of three, working full-time, to return to college in order to mitigate her damages. Moreover, the defendants cite no case law in support of the proposition that a plaintiff, to mitigate her damages, must acquire qualifications beyond those required for the job she lost as a result of the defendants' unlawful acts. A college degree was not required for Gilster's job at Primebank; accordingly, she has not failed to mitigate her damages by not finishing her degree. Additionally, the defendants note that, while Gilster was employed at Primebank, she worked part-time at Maurice's. The defendants contend that Gilster has failed to mitigate her damages because, since Primebank fired her, she has only worked one full-time job and has not sought an additional part-time job. However, the defendants, though the burden is on them to show a failure to mitigate, cite no evidence as to whether Gilster's schedule at Maurice's would even permit her to work an additional part-time job. I am unconvinced by this undeveloped argument. Finally, again regarding Gilster's job at Maurice's, the defendants argue that because Gilster has been able to find full-time employment at Maurice's, her front pay award should be reduced. I do not dispute, nor does Gilster, that, in calculating Gilster's front pay award, I should subtract Gilster's projected income at Maurice's from any front pay award. In sum, I am satisfied that Gilster has mitigated her damages; the defendants
Based on my consideration of the Ogden factors and all the circumstances present here, I conclude that front pay is appropriate.
In calculating Gilster's front pay, I must first determine its duration. Dollar, 787 F.Supp.2d at 923-24. My analysis of whether front pay is appropriate guides me in doing so, as "[t]here is much overlap between the facts relevant to whether an award of front pay is appropriate and those relevant to the size of the award." See Newhouse, 110 F.3d at 643 (quoting Dominic v. Consol. Edison Co. of N.Y., Inc., 822 F.2d 1249, 1257 (2d Cir. 1987)). "Determining front pay necessarily involves uncertainty, and the district court has discretion in determining an appropriate award[,]" Curtis v. Elecs. & Space Corp., 113 F.3d 1498, 1504 (8th Cir. 1997), but "a front pay award must be grounded in available facts, acceptable to a reasonable person and not highly speculative[,]" Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1142 (7th Cir.1994).
I determine that front pay of five years is appropriate. It is highly likely that Gilster would have remained at Primebank. Gilster was such an asset that Strub recruited her from a competitor bank. Furthermore, she received favorable evaluations while working at Primebank, until Strub and Primebank began retaliating against her. Realistically, it will be impossible for Gilster to get a job with a local bank in Sioux City, not only because Primebank fired her, but also because she won a large and publicized verdict against Primebank. Moreover, despite her job search, she has not been able to secure a job with similar pay, and it does not appear likely that, at least in the near future, she will be able to secure a job with comparable pay and benefits, given that her skill set is in banking. Five years front pay is sufficient for Gilster to gain the qualifications necessary to become competitive in a different field and to complete her education, if she wishes, so that she may secure employment with wages and benefits that are comparable to her job at Primebank. Thus, I award five years front pay.
I now must calculate Gilster's estimated yearly income from Primebank, less her mitigation income earned at Maurice's. See Dollar, 787 F.Supp.2d at 924.
Gilster requests the following yearly front pay, as calculated in her Exhibit A (docket no. 80-2):
Expected Yearly Pay from Primebank Lost Wages: $17.40/hour × 40 hours/week × 52 weeks/year = $36,192.00 Overtime: $26.10/hour × .6 hours/week × 52 weeks/year = $ 814.32 Paid Sick Leave (6 days): = $ 835.20 Paid Vacation (10 days): = $ 1,392.00 Paid Holidays (9 days): = $ 1,252.80 Yearly Bonus ($75): $ 75.00 401(k) Employer Match 50% = $ 556.22Subtotal = $41,117.54Less Expected Mitigation from Employment at Maurice's Wages: $11.24/hour × 30 hours/week × 52 weeks ("reduced to $9.50/hour × 12.5 hours/week × 52 weeks")18 = $11,359.40
Paid Personal Leave (5 days) = $ 449.60 Paid Holidays (6 days) = $ 539.52 Total Mitigation = $12,348.52 REQUESTED YEARLY FRONT PAY =$28,769.02
Gilster requests the yearly rate of $28,786.02 for any and all years she may receive front pay and does not request any increases from year to year. The defendants dispute several parts of Gilster's calculation. First, the defendants urge that I should calculate Gilster's front pay based on her hourly wage at the time she was terminated in February 2011: $16.80/hour. It appears from Gilster's calculations that she used her anticipated 2012 pay to calculate her front pay, including two $.30/hour annual bonuses, to arrive at $17.40/hour. Gilster testified that she was denied her annual $.30/hour raise at the end of 2010, and the reason Primebank gave was her poor performance evaluation. Therefore, when she was terminated in 2011, her salary was $16.80, not the $17.10 it would have been, but for the poor evaluation. As I have already concluded, there was sufficient evidence at trial to conclude that Strub gave Gilster a poor performance evaluation to retaliate against her. Thus, to advance the "make-whole" goal of front pay, I find it appropriate to include in Gilster's front pay calculation the raise she expected to receive, but did not, due to retaliation. I also find that it is reasonable to anticipate that Gilster, had she remained at Primebank and not been retaliated against, would have received her expected annual raise again at the end of 2011, bringing her hourly wages to $17.40
Both parties agree that Gilster's anticipated wages from Primebank should be calculated based on a 40 hour work week. However, this is where the parties' agreement ends. The defendants object to all additional figures included in Gilster's calculations: overtime, paid sick leave, vacation, and holidays, her yearly bonus, and her 401(k) employer match of 50%.
Regarding overtime, I agree with the defendants that awarding Gilster future overtime is simply too speculative on the evidence before me. The only evidence at trial was that Gilster, based on her overtime in 2010, estimated she would have averaged 6 hours/week overtime in 2011 and in the first few months of 2012. I find this evidence insufficient to project Gilster's overtime into the future, as I have no information about Primebank's workload in the future and the amount Primebank would require its employees to work overtime.
As to Gilster's remaining fringe benefits, I note that "the purpose of awarding front pay is to compensate the plaintiff for what [she] would have had but for [her] wrongful termination...." See Hartley, 310 F.3d at 1063. The Eighth Circuit Court of Appeals has affirmed the inclusion of benefits, such as vacation pay and employer contributions, in a front pay award. See id. Therefore, I reject the defendants' argument that Gilster categorically may not recover fringe benefits. I also find that Gilster has presented sufficient evidence for me to project her fringe benefits into the future. As to the yearly bonus, Gilster, as well as HR officer Ann Schulz, testified that Primebank gives its employees a $75 holiday gift each year. I find it likely that this holiday gift would continue, and thus include it in Gilster's front pay. As to paid sick leave, vacation, and holidays, there is no reason to expect Gilster would receive a different number of paid absences in the future than the number she received while at Primebank. Thus, I find it appropriate to include paid sick leave, vacation, and holidays, and I agree with Gilster's calculations of the value of these days as eight hours a day, multiplied by her hourly rate of $17.40. As to employer contributions, Gilster testified that while at Primebank, she contributed 3% to her 401(k), and Primebank matched 50% of her contribution, or 1.5%. I find it reasonable to conclude that Gilster would have continued her practice of contributing to her 401(k) and that Primebank would have continued its 50% match. Gilster calculates Primebank's yearly projected employer match to be $556.22, and it appears that she arrives at this number because she includes Gilster's wages, overtime, and $75 holiday gift in her yearly salary. However, because I do not include overtime in Gilster's front pay award and there is no evidence that Primebank's yearly holiday gift would be included in the sum used to calculate Primebank's 401(k) match, I use Gilster's yearly projected lost
As to the calculation of Gilster's mitigation income at Maurice's, I determine her yearly wages by multiplying her hourly pay, the hours per week she works, and the number of weeks in a year: $11.24/hour × 30 hours/week × 52 weeks. Gilster testified at trial that she currently earns $11.24/hour, and I see no evidence that her hourly rate will change in the future. I disagree with Gilster's calculation of her income at Maurice's, in which she reduces her projected income because she would have continued working part-time at Maurice's, in any event, had Primebank not fired her. Gilster is correct that, as a general principle, any additional income that a plaintiff earned, unrelated to her job with the defendant employer, and that she continues to earn after being discharged, should not be used to offset a front pay award. In Belk v. City of Eldon, 228 F.3d 872 (8th Cir.2000), a First Amendment retaliation case, the Eighth Circuit Court of Appeals rejected an employer's argument that, in addition to deducting the plaintiff's new salary from her front pay award, the plaintiff's income from farming investments should also be deducted. The court reasoned,
Id. at 883. Gilster is certainly right that, like the farming income in Belk, her part-time income at Maurice's is income "that she would have had in any case," had she continued to work at Primebank. The difference here, however, is that the farming income in Belk was income the plaintiff earned above and beyond the new job she secured following her unlawful discharge. I would agree completely with Gilster's argument that I should not deduct the value of her part-time job at Maurice's — if Gilster were working a full-time job in addition to working part-time at Maurice's. The problem with Gilster's calculation of her mitigation income is that it ignores her duty to mitigate: if I discount Gilster's mitigation income to account for the part-time work Gilster would have done anyway at Maurice's, I effectively require Gilster to work only part-time to mitigate her damages. I conclude that Gilster's full-time wages at Maurice's are the appropriate touchstone for calculating her mitigation income. Finally, I agree with Gilster's inclusion of her paid personal leave and paid holidays in her projected mitigation income, and I agree that these days should be calculated by multiplying Gilster's hourly rate of $11.24 by an eight hour work day.
Therefore, I calculate Gilster's front pay, as follows:
Expected Yearly Pay from Primebank Lost Wages: $17.40/hour × 40 hours/week × 52 weeks/year = $ 36,192.00 Paid Sick Leave (6 days): = $ 835.20 Paid Vacation (10 days): = $ 1,392.00 Paid Holidays (9 days): = $ 1,252.80 Yearly Bonus ($75): = $ 75.00 401(k) Employer Match 50% = $ 542.88Total Lost Wages and Benefits: = $ 40,289.88Less
Mitigation Income Wages: $11.24/hour × 30 hours/week × 52 weeks = 17,534.40 Paid Personal Leave (5 days) = $ 449.60 Paid Holidays (6 days) = $ 539.52 Total Mitigation = $ 18,523.52 _____________________________________________________________________________Yearly Front Pay Award = $ 21,766.36 × 5 years _____________________________________________________________________________TOTAL FRONT PAY AWARD = $108,831.80
I do not reduce the front pay award to present value for two reasons. First, neither party has briefed nor even mentioned the issue. Second, although there are several ways to account for the benefit to Gilster of receiving front pay as a lump sum,
Gilster moves for injunctive relief against Primebank under both Title VII and the ICRA, as follows:
Gilster's Brief at 7-8 (docket no. 80-1). The defendants maintain that such relief is not necessary for the following reasons: Primebank responded properly to Gilster's claim of sexual harassment and reprimanded Strub; Primebank already has a policy of sexual harassment with a retaliation provision; injunctive relief will not affect Gilster, as she is no longer employed by Primebank and will not be reinstated; several Primebank employees testified that they did not find the environment at Primebank to be hostile, and Gilster presented no witnesses to corroborate her hostile environment claims; Gilster's testimony demonstrated that, as a Primebank employee, she knew how to report sexual harassment or retaliation at Primebank; and, finally, there is no evidence of other sexual harassment or retaliation at Primebank.
Both Title VII and the ICRA authorize district courts, in their discretion, to issue injunctions against a defendant employer following a plaintiff's success on the merits.
Importantly, however, the Article III case or controversy requirement demands "a definite and concrete controversy involving adverse legal interests at every stage in the litigation." Gray v. City of Valley Park, Mo., 567 F.3d 976, 983 (8th Cir.2009) (citation and internal quotation marks omitted); accord Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ("[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed."). "When, during the course of litigation, the issues presented in a case `lose their life because of the passage of time or a change in circumstances.... and a federal court can no longer grant effective relief,' the case is considered moot." Haden v. Pelofsky, 212 F.3d 466, 469 (8th Cir.2000) (quoting Beck v. Mo. State High Sch. Activities Ass'n, 18 F.3d 604, 605 (8th Cir.1994)). Here, although Gilster had standing, at the time of her second amended complaint, to seek the injunctive relief she requests, there has been a "change in circumstances," because it is now clear that she will not be reinstated, and there is no indication in the record that she otherwise will work for Primebank again. Thus, Gilster's claim for injunctive relief, which seeks to enjoin further discrimination at Primebank and to require Primebank to alter its policies and train its employees, is moot, because that
Because the record supports a reasonable inference that Primebank's firing Gilster has prevented her from securing a new job with comparable pay and benefits, I raised sua sponte
Thus, I order that Primebank provide Gilster with a neutral letter of reference. The parties have sixty days from the entry of this order to draft a letter suitable to both sides. On or before the expiration of this sixty day deadline, the parties shall file notice with the court indicating whether they have been able to agree to a neutral letter of reference. I do not expect a glowing recommendation but, instead, a compromise that reasonably accommodates both sides. If the parties are unable to agree, they may present the matter to me, and I will decide the wording of the letter.
Gilster, in her initial Motion For Attorney Fees And Expenses (docket no. 81), moves for $153,320.00 in attorney fees, $8,219.50 in legal assistant, legal secretary, and law clerk fees, and $18,254.16 in costs and expenses.
The number of hours claimed, and the hourly rates billed by Gilster's attorneys and their legal assistants, secretary, and law clerks, are, as follows:
FEES CLAIMED FOR ATTORNEYS
FEES CLAIMED FOR ATTORNEYS
Name Hrs. Rate Total Fee Claimed
Brooke Timmer 419.05 $200 $83,810.00
Whitney Judkins28 474.3 $125 $57,975.00
Paige Fiedler 26.6 $375 $9,975.00
Emily McCarty 10.4 $150 $1,560.00
Total Hrs. Claimed 930.35 Total Fee Requested $153,320.00
FEES CLAIMED FOR LEGAL ASSISTANTS, SECRETARY, AND LAW CLERK
Robin Daisy-Jahn29 64.9 $80 $5,207.00
Kristin Erdman 14.05 $80 $1,124.00
Cheryl Smith 12 $70 $840.00
Law Clerk 11.65 $90 $1,048.50 Total Hrs. Claimed 102.6Total Fee Requested $8,219.50
In support of her motion, Gilster has included an itemized list of costs (Exhibit 1); an itemized list of hours billed by each of Gilster's lawyers and the staff at Fiedler & Timmer, P.L.L.C., in Des Moines, Iowa (Exhibit 2); affidavits of each lawyer who worked on the case: Brooke C. Timmer (Exhibit 3), Whitney Judkins (Exhibit 4), Paige Fiedler (Exhibit 5), and Emily McCarty (Exhibit 6); and affidavits of support from other Des Moines lawyers who specialize in employment discrimination law: Katie Ervin Carlson (Exhibit 7), Roxanne Conlin (Exhibit 8), David Goldman (Exhibit 9), Melissa Hasso (Exhibit 10), and Andrew LeGrant (Exhibit 11).
On August 2, 2012, Gilster filed a supplement (docket no. 111) to her Motion For Attorney Fees And Expenses, for additional work her lawyers performed since filing the initial fee motion on May 17, 2012, including resisting the defendants' post-trial motion, filing replies in support of Gilster's motions, providing supplemental briefing that I requested, and appearing for oral arguments in July. Gilster requests an additional $18,230.50 in attorney fees, broken down as follows:
FEES CLAIMED FOR ATTORNEYS AND STAFF Name Hrs. Rate Total Fee Claimed Brooke Timmer30 25.05 $200/250 $5,747.50 Whitney Judkins 72.2 $125/150 $9,610.00 Paige Fiedler 7 $375 $2,625.00 Emily McCarty 1.6 $150 $ 240.00 Kristin Erdman .1 $80 $ 8.00
Gilster also requests additional costs and expenses of $2,283.12.
The defendants do not dispute that Gilster is a prevailing plaintiff who may recover reasonable attorney fees and costs under Title VII and the ICRA. See 42 U.S.C. § 2000e-5(k); IOWA CODE § 216.15(9)(a)(8).
The question, of course, is what amount of fees is reasonable. The lodestar-the number of hours reasonably expended multiplied by a reasonable hourly rate-is the touchstone for determining reasonable attorney fees. See Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (explaining that the lodestar is "the product of reasonable hours times a reasonable rate");
The Hensley court detailed the lodestar method and several of the considerations that may be relevant in determining the reasonableness of both the attorneys' hourly rates and hours expended:
Hensley, 461 U.S. at 433-34, 103 S.Ct. 1933. I first consider the hourly rates for Gilster's attorneys and staff and then turn to whether the hours they worked were reasonable.
The defendants challenge the hourly rates requested by Gilster's attorneys
"As a general rule, a reasonable hourly rate is the prevailing market rate, that is, `the ordinary rate for similar work in the community where the case has been litigated.'" Moysis v. DTG Datanet, 278 F.3d 819, 828-29 (8th Cir.2002) (quoting Emery v. Hunt, 272 F.3d 1042, 1047 (8th Cir.2001)). "[T]he burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (emphasis added). As the Eighth Circuit Court of Appeals has noted, however, the Supreme Court did not define "community" in Blum. See McDonald, 860 F.2d at 1459 n. 6. In McDonald, the court suggested that "community" should probably be given an expansive reading, and that the entire state may be the relevant market. Id. Moreover, the relevant market in specialized areas of law "may extend beyond the local geographic community." Casey v. City of Cabool, Mo., 12 F.3d 799, 805 (8th Cir.1993) (explaining, in a civil rights case, that "[a] national market or a market for a particular legal specialization may provide the appropriate market.").
Because employment discrimination is a specialized area of law, I find that the relevant market for determining the prevailing market rate extends beyond Sioux City and northwest Iowa. Fiedler and Timmer's rates, given their skill, reputation, and experience, see Johnson, 488 F.2d at 717-19, are comparable to the prevailing market rates for employment discrimination lawyers in Des Moines (in fact, their rates might be considered low if I used a regional or national market to determine the prevailing market rate). Fiedler has practiced law for eighteen years and, in the last ten, has focused exclusively on employment law and civil rights law. Her extensive and successful record in employment discrimination cases demonstrates that she is a highly sought-after and skilled lawyer, as do the affidavits provided by other attorneys in support of her. Her rate of $375 is reasonable when compared to the other Des Moines employment discrimination attorneys who provided affidavits here: the lawyers with between five and ten years experience appear to charge around $200/hour, see Exhibits 10, 11, and those attorneys with more experience than Fiedler, like David Goldman, $400/hour, Exhibit 9, and Roxanne Conlin, $750/hour, Exhibit 8, charge more. Thus, I conclude that Fiedler's hourly rate of $375 is reasonable.
As to Timmer, I conclude that $200/hour is reasonable. Although Timmer has practiced for only six years, an hourly rate of $200 is consistent with other employment discrimination attorneys in Des Moines with between five and ten years experience. Moreover, Timmer is an extremely skilled jury trial lawyer and boasts an impressive record of cases, especially given the number of years she has practiced. Although the cold record does not do Timmer justice, anyone in the courtroom during the two-week trial in
I am not concerned that the rates of $375 and $200/hour are higher than those that Fiedler and Timmer have often received in other cases, as "a reasonable hourly rate is not itself a matter of binding precedent," Farbotko v. Clinton County of New York, 433 F.3d 204, 208 (2d Cir.2005), but, instead, a figure to be determined on a case-by-case basis. I conclude that Fiedler and Timmer's requested rates are reasonable, based on their skill and experience and the current prevailing market rate.
The defendants have not objected to the rates of Gilster's other attorneys, Judkins and McCarty, and I agree that their requested rates are reasonable, given their skill and experience and the prevailing market rate for employment discrimination lawyers. I also note that the defendants have not challenged Gilster's requested legal assistant rate of $80/ hour, and I find that this rate is reasonable. I take issue, however, with the rates requested for law clerks and the legal secretary at Fiedler & Timmer. Gilster requests a rate of $90/hour for the firm's law clerks. Timmer reports, in her affidavit, that her firm ordinarily bills $90/hour to the firm's fee-paying clients for law clerk work. However, an "ordinary billing rate is not conclusively `reasonable.'" See McDonald, 860 F.2d at 1459. The only evidence Gilster has supplied to establish the reasonableness of this rate comes from Roxanne Conlin, who reports in her affidavit that her firm charges an hourly rate between $110 and $165 for law clerks, and that courts have awarded hourly rates of $95, $90, and $75 for her law clerks. While these rates may be reasonable for Conlin's law firm, as she, herself, charges $750/hour, I find that $90/hour for law clerks is too high here. In determining a reasonable law clerk rate, I also draw on my own knowledge and experience. See Warnock v. Archer, 397 F.3d 1024, 1027 (8th Cir.2005) ("[W]hen fixing hourly rates, courts may draw on their own experience and knowledge of prevailing market rates."). As an adjunct law professor at Drake Law School in Des Moines, I stay familiar with prevailing market rates for law clerks, and I am aware that part-time law clerks are typically paid $15 to $25/ hour, with a few large and speciality firms paying up to $30/hour. Of course, I recognize that the billing rate a firm charges for law clerks is higher than the paycheck those clerks take home. I find that $60 is a reasonable hourly rate to award for Fiedler & Timmer's law clerks.
Additionally, I award no fees for work legal secretary Cheryl Smith completed. Secretaries' salaries come within a firm's overhead. Secretarial work on a case should not be billed to a client, nor to an opposing party in a fee shifting case. See Emery v. Hunt, 236 F.Supp.2d 1033, 1036 (D.S.D.2002) ("Certainly, nothing should be billed to the client for secretarial work or for tasks that should be done by secretaries."); Miller v. Kenworth of Dothan, Inc., 117 F.Supp.2d 1247, 1262 (M.D.Ala.2000) ("[A]ttorneys generally should receive no compensation for time spent on purely secretarial or other nonlegal services, such as serving or filing documents..., that are appropriately performed by messenger, secretaries, or clerks who[se] services ordinarily are part of a law office's overhead and are not billable to a fee-paying client." (citation and internal quotation marks omitted)).
The defendants also object to the number of hours claimed by Gilster's attorneys.
Although the affidavits of other employment discrimination lawyers in Des Moines were very helpful in determining the reasonableness of Gilster's lawyers' hourly rates, I do not find them useful in evaluating the hours that Gilster's lawyers worked. Included in two of these affidavits are blanket statements about the reasonableness of the overall fees requested by Gilster's lawyers. See Exhibits 8, 9 (docket nos. 81-8, 81-9). These generalized assertions appear to be based on the length of the trial and the size of the verdict, but the lawyers making these statements are not familiar with the particular circumstances of this case, including the amount of pre-trial labor involved, the amount or type of discovery needed, how cooperative defense counsel was or was not, how the strategies of defense counsel might have increased or decreased the work Gilster's lawyers needed to perform, or how a host of other factors might have affected the effort required of Gilster's lawyers. Generally, unless a lawyer not involved with a case has reviewed the entire record and compared each entry with the work product produced, and then testifies as a expert witness regarding the reasonableness of fees, I find any assertions about the reasonableness of the hours worked or the overall fees to be of little, if any, real value, and often simply overreaching. This is especially true where opinions are expressed in affidavits and not subject to cross-examination. John Henry Wigmore described cross-examination as "the greatest legal engine ever invented for the discovery of truth." 5 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 1367 (3d ed. 1940). I have, on many occasions, observed statements made in affidavits evaporate when the affiant was cross-examined. Thus, I do not find these mini cottage industry, "you-scratch-my-back, I'll-scratch-yours" affidavits to be helpful in evaluating hours worked or the overall reasonableness of Gilster's requested fees.
I first address the defendants' objection to block-billing. Block-billing, that is, "billing entries that specify only the daily activities, but that do not specifically indicate how much time was spent on each individual task," Dorr v. Weber, 741 F.Supp.2d 1022, 1036 (N.D.Iowa 2010) (internal quotation marks omitted), impedes my ability to evaluate the reasonableness of the hours expended, because I cannot ascertain the amount of time spent on each task. Many entries by Gilster's lawyers are block-billed. See Exhibit 2 (docket no. 81-2). An example comes from Timmer's June 23, 2011, single entry for five hours of work: "drafted motion to amend and amended complaint, emails to Kristin re: filing of same, received and reviewed ICRC file, revised discovery requests to go out, email to Kristin." Exhibit 2 at 5 (docket no. 81-2).
My prior decisions, from as far back as my time as a magistrate judge in the early nineties, make clear that block-billing is
I disagree with the defendants that all of Gilster's block-billed entries should be stricken. Although Gilster has block-billed, I do not find a drastic reduction in fees to be necessary. Unlike other cases in which I have imposed a sizeable reduction in fees for block-billing where the lawyers also clearly sought far more fees than they deserved, see, e.g., Dorr, 741 F.Supp.2d at 1036-37, Gilster's billing records do not suggest frequent overreaching, though I agree with the defendants, as noted below, that some of the fees requested in Gilster's supplemental motion for fees are excessive. I impose a 3% across-the-board reduction in Gilster's attorney fees award, a solution approved by the Eighth Circuit as a remedy for pervasive problems in lawyers' billing records, see Jensen v. Clarke, 94 F.3d 1191, 1203 (8th Cir.1996) (approving 10% reduction),
I also impose a small across-the-board reduction in fees for lack of specificity in Gilster's billing records. For instance, Timmer bills for "legal research" on June 4, 2012, but fails to indicate what she researched, see Supp. Bill at 1 (docket no. 111-1), and Fiedler bills for "Emails from and to Brooke [Timmer]," see Exhibit 2 at 1 (docket no. 81-2), but does not indicate the subject of the e-mails. There are many other instances of inadequate documentation and specificity in Gilster's billing records. Specificity is the most vital tool in assisting courts in reasonableness review. Therefore, I find a 2% across-the-board reduction is appropriate. See Jensen, 94 F.3d at 1203 (approving across-the-board reduction where "there were certain instances where the documentation was simply not sufficient to make an intelligent determination as to whether the hours expended were in fact reasonable" (citation and internal quotation marks omitted)).
Local Rule 54.1(a) requires that lawyers seeking fees "include a separate summary indicating the total time spent performing each of the following major categories of work;"
N.D. IOWA L.R. 54.1(a). Gilster failed to include this required summary, which deprived me of a clear snapshot of how Gilster's lawyers spent their time. Furthermore, their block-billing practices made it nearly impossible for me to create my own summary of their activities, as I could not determine how much time they spent on each task. I impose an additional 2% across-the-board reduction for Gilster's failure to comply with the longstanding local rule regarding attorney fees, one that has applied to every fee application the Fiedler & Timmer law firm has ever made in the federal district courts in Iowa.
First, I question the defendants' general gripe that Gilster's firm assigned too many lawyers to "a straight-forward Title VII (and Iowa state law) sexual harassment and retaliation case." Defendants' Response at 1 (docket no. 107). Is this case truly as straightforward as the defendants claim, when the defendants still maintain that there was insufficient evidence to establish sexual harassment and retaliation? See Casey, 12 F.3d at 805 ("The City could not continue to contend that they have no liability here at all, with one breath, and then assert that this case was a `pushover' for plaintiff with the next."). Moreover, "[w]hile sex discrimination claims, in general, are not particularly novel, discrimination cases are notoriously difficult to win." Lewis v. Heartland Inns of Am., L.L.C., 764 F.Supp.2d 1037, 1044 (S.D.Iowa 2011). This was a fact-intensive case that required Gilster to marshal and organize extensive evidence, particularly to establish causation for her retaliation claim. Central to Gilster's strategy for proving retaliation was evidence that nearly every Primebank employee turned against Gilster, which involved deposing numerous Primebank employees and preparing for a lengthy trial. Thus, while this case did not involve a novel legal question, it certainly entailed significant evidentiary hurdles. Given the time and labor required here and the inevitable difficulties in proving a discrimination and retaliation case, see Johnson, 488 F.2d at 717-19 (considering, as factors in fee award, time and labor required and difficulty of the legal question in determining attorney fees), I find it reasonable that Timmer, a partner, and Judkins, an associate, were the two main lawyers on Gilster's case, and that another partner, Fiedler, and an associate, McCarty, contributed a small amount of additional work. I recognize that defense counsel Doug Phillips is the platinum standard of efficiency and, without a doubt, an incredible bargain for his clients. He has tried many cases before me, and he has never used co-counsel. Nonetheless, he is the exception, not the rule, and it is not unreasonable that Gilster's firm used several lawyers in this case, particularly where the bulk of fees were generated by Timmer and Judkins, who both actively participated in the jury trial in this case.
While I reject the defendants' general contention that too many lawyers worked on this case, I now consider each of the defendants' more specific
Although the defendants claim that Fiedler, Timmer, and Judkins's hours were "repetitive and duplicative," the only example the defendants cite, regarding Gilster's original motion for fees, is that Timmer and Judkins "were both billing 8-12 hour days for trial preparation." Defendants' Brief at 5 (docket no. 107). I do not find it unreasonable that Timmer and Judkins, who shared trial duties equally, would both work long hours in the days leading up to trial. As to Gilster's supplemental motion for fees, the defendants note that both Timmer and Judkins appeared for oral arguments on post-trial motions, although only Timmer participated. The defendants also object to the fact that "[f]our lawyers spent 65 hours doing research, writing briefs, talking to each other and editing each other's work, in preparing a resistance to the post trial motion." Defendants' Response at 1 (docket no. 113).
Nevertheless, I do impose a small reduction in Fiedler's fees, as her billing records indicate that, to some extent, she played an advisory and mentoring role in this case, offering revisions on Timmer and Judkins's written work, suggestions throughout the case, and advice at trial. See Exhibit 2 at 1-2 (docket no. 81-2). While I do not doubt that Fiedler's work, in this capacity, helped Timmer and Judkins present the best case possible for Gilster, I will not shift to the defendants the expense of training and advisory work that Fiedler is expected to perform as a senior partner. See Emery, 236 F.Supp.2d at 1036 ("[Lawyers] often ask [a] more
The defendants also argue that they should not have to pay for discussions and e-mails among Gilster's attorneys. Certainly, when multiple attorneys work together on a single case, they must communicate to coordinate their efforts and to strategize about the case. See Davis v. City & County of San Francisco, 976 F.2d 1536, 1545 (9th Cir.1992), vacated in non-relevant part on denial of reh'g, 984 F.2d 345 (9th Cir.1993) (rejecting the defendant's "assertions that [plaintiffs'] counsel billed excessive hours for time spent in co-counsel meetings ... [because plaintiffs'] counsel presented comprehensive and persuasive evidence ... of the efficient and essential nature of their co-counsel meetings."). Indeed, communication among lawyers should help to improve efficiency and avoid duplicative and repetitive efforts. Cf. A.J. by L.B., 56 F.3d at 864 (noting that court may reduce fees for "inefficiency ... where more than one attorney is used."). I find that Gilster's lawyers properly billed for their time spent cooperating and strategizing with each other on Gilster's case. Moreover, the time they spent on co-counsel discussions and e-mails is reasonable, unlike other cases in which I have reduced time that lawyers spent conferring because it was clearly excessive. See, e.g., Houghton, 828 F.Supp. at 645-48.
Although Timmer's affidavit states, "I have deleted from the statement of account any time that was excessive, redundant, inefficient, or unnecessary[,]" Exhibit 3 at 5 (docket no. 81-3), there is a difference between claiming to have exercised billing judgment and establishing, with evidence, the exercise of billing judgment. There is no indication in the billing records of what fees, if any, Gilster's lawyers decided to exclude. I have no way of knowing whether this is simply boilerplate fee affidavit language, or whether some billing judgment was actually exercised in this case. See Hensley, 461 U.S. at 433-34, 103 S.Ct. 1933 (noting that billing judgment is just as essential in fee-shifting context as when billing to clients). Nonetheless, because Gilster's records do not suggest pervasive overreaching, I impose no reduction for failure to exercise billing judgment, but I note, for future fee shifting cases, that lawyers' billing records and affidavits should show, with precision, which hours and fees the lawyers cut, and why.
Therefore, the calculations for the adjusted lodestar, with my reductions, are, as follows:
FEES FOR ATTORNEYS Name Hrs. Rate Fee Brooke Timmer 444.1 $200 $ 88,820.00 Whitney Judkins37 542.3 $125 $ 66,475.00 Paige Fiedler38 25.2 $375 $ 9,450.00 Emily McCarty 12 $150 $ 1,800.00Total Hrs. 1023.6Fee Subtotal $166,545.00 FEES FOR LEGAL ASSISTANTS AND LAW CLERK Robin Daisy-Jahn 64.9 $80 $ 5,192.00 Kristin Erdman 14.15 $80 $ 1,132.00 Law Clerk 11.65 $60 $ 699.00Total Hrs. 90.7Fee Subtotal $ 7,023.00 Combined Fee Subtotal $173,568.00 less 7% across-the board reduction $ 12,149.76 (3%-block-billing; 2%-specificity; 2%-local rule violation)TOTAL ATTORNEY FEES AWARD $161,418.24
I find that this adjusted lodestar represents a reasonable fee award for Gilster's lawyers. They worked very, very hard and achieved impressive results for Gilster, as shown by the jury's large — but appropriate — compensatory and punitive
Gilster also seeks $20,537.28 in costs and expenses. The defendants object, maintaining that the following costs requested by Gilster are not recoverable: Westlaw and Pacer expenses, witness preparation and jury consultation fees, background searches and investigation services, deposition expenses, postage, lodging, mileage, faxes and scanning, and telephone charges.
Federal Rule of Civil Procedure 54 governs awards of costs to prevailing parties. FED.R.CIV.P. 54(d)(1) ("[C]osts — other than attorney's fees — should be allowed to the prevailing party."). The amount of costs awarded is "within the sound discretion of the district court." Poe v. John Deere Co., 695 F.2d 1103, 1108 (8th Cir.1982). However, the district may only award those costs "set out in 28 U.S.C. § 1920 or some other statutory authorization." Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir.2006) (emphasis added). Both Title VII and the ICRA provide for the award of costs to prevailing parties. 42 U.S.C. § 2000e-5(k); IOWA CODE § 216.15(9)(a)(8); see, e.g., Landals, 454 N.W.2d at 898. The Eighth Circuit Court of Appeals has explained that the taxable costs enumerated in 28 U.S.C. § 1920
First, the defendants challenge Gilster's request for Westlaw research fees and Pacer fees, arguing that Eighth Circuit law does not permit a party to recover such costs. See Leftwich v. Harris-Stowe State Coll., 702 F.2d 686, 695 (8th Cir.1983) ("[C]omputer-aided research, like any other form of legal research, is a component of attorneys' fees and cannot be independently taxed as an item of cost in addition to the attorneys' fee award."); see also Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 325 (8th Cir.1993) ("Based on Leftwich, the law of this Circuit is that computer-based legal research must be factored into the attorneys' hourly rate, hence the cost of the computer time may not be added to the fee award."). Although the Eighth Circuit Court of Appeals has not explicitly overruled Leftwich and Standley's relevance in cases involving fee-shifting statutes, the court recently rejected their application to a negotiated settlement of a shareholder derivative case, reasoning that lawyers typically bill for computerized legal research fees and that "[t]he prevailing view among other circuits is to permit awards to reimburse counsel for the reasonable costs of online legal research." See In re UnitedHealth Group Inc. S'holder Derivative Litig., 631 F.3d 913, 918 (8th Cir. 2011). Moreover, Leftwich and Standley predated Sturgill, in which the Eighth Circuit Court of Appeals interpreted Title VII's fee-shifting provision to allow courts to award reasonable costs that are "normally charged to a fee paying client." Sturgill, 512 F.3d at 1036. Computerized legal research fees are traditionally billed to clients, see In re UnitedHealth Group, 631 F.3d at 918, and, thus, if reasonable and adequately documented, should be awarded in fee-shifting cases. Nevertheless, although I read Eighth Circuit law to permit me to award computerized legal research fees, I do not award them here due to inadequate documentation. See Baker, 263 F.Supp.2d at 1203 (denying costs that "were inadequately documented"). Gilster's entries in her itemized list of costs refer only to "research charges" or "Westlaw-research charges," but do not specify the subject matter of the research. Because Gilster has provided insufficient information for me to determine if these research costs were reasonable, I deny them and reduce her costs by $2,562.00. I disagree with the defendants that Pacer fees are not recoverable, as Pacer does not involve computerized legal research, but
Next the defendants maintain that Gilster's witness preparation and jury consulting services fees are not recoverable. Gilster requests $3,379.35 for the use of Starr Litigation Services to prepare witnesses and to review jury questionnaires. The defendants are correct that courts have consistently found that consultant fees are not recoverable under 28 U.S.C. § 1920. See, e.g., Jorling v. Habilitation Servs., Inc., No. CIV.A. 103CV00073-WO, 2005 WL 1657060, at *12 (S.D.Ohio July 14, 2005); Simon Prop. Group, L.P. v. mySimon, Inc., No. IP 99-1195-C H/G, 2001 WL 66408, at *32 (S.D.Ind. Jan. 24, 2001). However, the question here is not whether § 1920 would permit such fees, but, rather, whether the consulting and preparation fees are "reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee paying client." Sturgill, 512 F.3d at 1036. This was a difficult case to win. Numerous defense witnesses contradicted Gilster's theory of the case, making Gilster's choice of jurors and preparation of witnesses all the more critical. I find that Gilster's use of witness preparation and jury consultant services was reasonable, as these services optimized her chances of winning a difficult case. See Lewis, 764 F.Supp.2d at 1049 (rejecting defendants' argument, in Title VII and ICRA case, that expenses for mock jury trial were "luxuries" and finding that, because the focus-group exercise "contributed to the litigation ... and benefitted [p]laintiff's case]" by preparing plaintiff to testify, expenses were recoverable). Therefore, I award costs for Gilster's expenses from Starr Litigation Services.
The defendants also challenge Gilster's expenses for background searches on three former Primebank employees and for the services of an investigator. First, as to background searches, Gilster explains that, when the defendants did not voluntarily provide contact information for former employees, Gilster's lawyers, in an attempt to avoid the costs of a deposition, ran background checks so they could contact and interview these employees informally. In light of this information, I find that the costs of background searches on these former employees were "reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee paying client." Sturgill, 512 F.3d at 1036. As to investigation services, Gilster explains that her lawyers employ an investigator, who contacts witnesses and interviews them at the rate of $25/hour. Gilster seeks to recover a May 17, 2010, $59.55 charge for "Investigation Services" and a May 12, 2011, $150.04 charge for "Investigation Services on Amber Lively, Erika Plendl, Austin Sitzmann." Exhibit 1 at 1. Gilster has not explained the first "Investigation Services" charge, and I cannot tell whom the investigator interviewed on this day. Because I cannot ascertain how this $59.55 charge was relevant to the case, I deny it. See Baker, 263 F.Supp.2d at 1203 (denying costs that "were inadequately documented"). As to the charge for "Investigation Services on Amber Lively, Erika Plendl, [and] Austin Sitzmann," I know from trial that Amber Lively testified, but I have no idea who Erika Plendl and Austin Sitzmann are. The expenses for Plendl and Sitzmann may well have been compensable, had Gilster explained their relevance to this case. I deduct $100.04, approximately
Additionally, the defendants object to Gilster's request for $6,702.55 in deposition expenses, arguing that "deposition expenses ... are only recoverable if utilized in a court proceeding." Defendants' Brief at 9 (docket no. 107). The defendants overstate the rigidity of the rule regarding deposition expenses. "Even if a deposition is not introduced at trial, a district court has discretion to award costs if the deposition was necessarily obtained for use in a case and was not purely investigative." Smith, 436 F.3d at 889 (alterations, internal quotation marks, and citations omitted). The defendants fail to indicate a single deposition that was not "necessarily obtained for use in [this] case" or that was "purely investigative." Rather, ignoring their "burden of overcoming the presumption that the prevailing party is entitled to costs," see 168th & Dodge, 501 F.3d at 958, the defendants simply ask "that all of the deposition and transcript costs be denied because Plaintiff has not delineated what depositions, if any, were needed for or used at trial." Defendants' Brief at 9 (docket no. 107). Gilster, in reply, notes that, of the five individuals she deposed whose depositions were not used at trial, three were disclosed by the defendants as witnesses with knowledge about Gilster's allegations, another was one of the first individuals to receive Gilster's internal complaint, and the fifth was involved in monitoring Gilster's e-mails. Therefore, I find that these depositions were "necessarily obtained for use in [this] case" and award all of Gilster's deposition costs.
The defendants also challenge Gilster's charge for a transcript of Matthew Ahlers's testimony, which Gilster requested during the trial. Gilster explains her request for the transcript, as follows: "Plaintiff requested the transcript as she believed after Mr. Ahlers's trial testimony that she might need to move for directed verdict on Defendants' affirmative defense regarding after-acquired evidence. After review, it was decided not to pursue the motion." Gilster's Reply at 14 (docket no. 110). A court may award the costs of trial transcripts under 28 U.S.C. § 1920 where "transcripts were not obtained primarily for the convenience of parties but were necessary for use in the case." McDowell v. Safeway Stores, Inc., 758 F.2d 1293, 1294 (8th Cir.1985). In light of Gilster's explanation of why she requested Ahlers's testimony and how she used it, I find that it was "necessary for use in the case" and that it is a recoverable cost.
Gilster's expenses for lodging, postage, faxes and long-distance phone calls are all "reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee paying client." See Sturgill, 512 F.3d at 1036.
However, I do not award mileage costs, though I recognize my discretion to do so. In addition to billing mileage, Timmer and Judkins billed their full hourly rate, for a combined total of $325/hour, for travel between Des Moines and Sioux City. I find that $325/hour for travel time adequately compensates Gilster's lawyers. Had they exercised billing judgment and reduced their hourly rates for travel time, or established the exercise of any billing judgment in the entire fee petition, I would be more inclined to grant them mileage costs. As it stands, however, I do not grant Gilster's mileage costs of $1,113.33, as I find them to be excessive. Gilster's lawyers are entitled to reasonable compensation of costs, not all possible compensation.
Additionally, I deny Gilster's $50 charge for "supplies to open a new file."
Therefore, from Gilster's requested costs and expenses of $20,537.28, I deduct
In her second amended complaint, Gilster requests "interest as allowed by law." See Gilster's Second Amended Complaint at 9-10 (docket no. 22). Neither party mentioned the issues of pre — and post-judgment interest in its post-trial briefing.
Because I allocated Gilster's past and future emotional distress damages and medical expenses to her ICRA claims, I consider pre-judgment interest on those damages under Iowa law. Although Gilster may recover back pay under either Title VII or the ICRA, for simplicity's sake and absent any indication from the parties to the contrary, I consider interest on her back pay award under Iowa law, as well. Iowa law permits "[i]nterest... on all money due on judgments," IOWA CODE § 535.3(1), including judgments under the Iowa Civil Rights Act, see, e.g., Landals v. George A. Rolfes Co., 454 N.W.2d 891, 896 (Iowa 1990). Because "prejudgment interest ... reflects the lost value of the use of the money awarded," In re Marriage of Baculis, 430 N.W.2d 399, 401 (Iowa 1988), pre-judgment interest on awards of future damages is not appropriate. Thus, I award pre-judgment interest on the jury's awards of past emotional distress damages, medical expenses, and back pay. See, e.g., Heaton v. Weitz Co., Inc., No. 05-CV-102-LRR, 2007 WL 2301251, at *12 (N.D.Iowa Aug. 8, 2007) (awarding pre-judgment interest under Iowa law on lost wages, benefits, and emotional distress damages); see also Flockhart v. Iowa Beef Processors, Inc., 192 F.Supp.2d 947, 978 (N.D.Iowa 2001) (awarding pre-judgment interest on emotional distress and back pay awards). Pre-judgment interest on these awards shall run from the date Gilster filed this action, September 1, 2010, to the date the Clerk of Court enters judgment. See IOWA CODE § 535.3(1) (indicating interest should be calculated according to § 668.13); IOWA CODE § 668.13(1) ("Interest, except interest awarded for future damages, shall accrue from the date of the commencement of the action."); accord Heaton, 2007 WL 2301251, at *12; Flockhart, 192 F.Supp.2d at 978. Interest shall be calculated at the rate indicated in Iowa Code § 668.13(3).
I do not award pre-judgment interest on Gilster's punitive damages award. Because the purpose of pre-judgment interest is to "compensate[] a plaintiff for ... damages incurred," see Philipp v. ANR
Federal law governs the question of post-judgment interest. Maddox v. Am. Airlines, Inc., 298 F.3d 694, 699-700 (8th Cir.2002). 28 U.S.C. § 1961(a) provides: "Interest shall be allowed on any money judgment in a civil case recovered in a district court." Thus, I award post-judgment interest, to accrue beginning on the date the Clerk of Court enters judgment in this case, at the rate identified in 28 U.S.C. § 1961(a), on the entire award: all compensatory damages and back pay, punitive damages, and front pay. See Dollar, 787 F.Supp.2d at 928-29; Heaton, 2007 WL 2301251, at *12; Madison, 149 F.Supp.2d at 783. I also award post-judgment interest on Gilster's attorney fees and costs, to accrue beginning on the date the Clerk of Court enters judgment in this case, at the rate identified in 28 U.S.C. § 1961(a). See Jenkins by Agyei v. State of Mo., 931 F.2d 1273, 1276 (8th Cir.1991).
1. The defendants' Motion For Judgment As A Matter Of Law, New Trial, Or Remittitur (docket no. 82), is
2. Gilster's Motion For Equitable Relief And Front Pay (docket no. 80) is
3. Gilster's Motion For Attorneys' Fees And Expenses (docket no. 81) is
4. Defendant Primebank, Inc. is
Gilster is entitled to the following damages:
Past Emotional Distress $ 40,000.00 Medical Expenses $ 1,330.49 Back Pay $ 28,820.12 Future Emotional Distress $200,000.00 Punitive Damages $ 50,000.00 Front Pay $108,831.80Total Damages $428,982.41
This case was hotly contested by excellent trial lawyers on both sides. There was sufficient evidence on either side of each of Gilster's claims to support a verdict for or against either party. Both sides struck hard blows; that happens in hard-fought jury trials with skilled trial lawyers. The parties did not receive a perfect trial but, in my opinion, a very fair one. The jury deliberated for a considerable period of time and crafted a thoughtful and nuanced verdict — a demonstration of precisely how our jury system is supposed to work and why the right to a jury trial is so precious.
Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 343-44, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (Rehnquist, J., dissenting) (footnote omitted). In my opinion, the jury's verdict in this case represents the layman's common sense view of the evidence and the collective community judgment of the wrongfulness of the defendants' conduct.
THEREFORE, I order judgment be entered in favor of Gilster and against the defendants in the amount of $70,150.61, the sum of her past emotional distress damages, medical expenses, and back pay award, plus pre-judgment interest from the date of the filing of the complaint in this case to the date of the entry of judgment, at the Iowa rate of interest. Judgment shall also enter in favor of Gilster and against the defendants in the amount of $358,831.80, the sum of Gilster's future emotional distress damages, punitive damages, and front pay award, without pre-judgment interest. Interest on the total judgment, $428,982.41, shall accrue beginning on the date of the entry of judgment, at the federal judgment rate. Gilster is also awarded $161,418.24 in attorney fees and $15,271.81 in costs; interest on attorney fees and costs shall accrue beginning on the date of the entry of judgment, at the federal judgment rate. Defendant Primebank, Inc. is ordered dismissed, by agreement of the parties.
The parties, however, agreed at oral arguments on the pending motions that Primebank, Inc. is not a proper defendant in this case. Therefore, Primebank, Inc. is dismissed from this case by agreement of the parties.
Id. at 3.
Where a party fails to comply with discovery disclosure requirements, "[t]he district court may exclude the information or testimony as a self-executing sanction unless the party's failure to comply is substantially justified or harmless." Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir.2008). Because Pratt was a treating practitioner and not an expert specifically retained for trial, Gilster, to comply with disclosure requirements, was required to provide "the subject matter on which [Pratt] [was] expected to present evidence under Federal Rule of Evidence 702, 703, or 705" and "a summary of the facts and opinions to which [Pratt] [was] expected to testify." FED. R.CIV.P. 26(a)(2)(C). Gilster's expert designation of Pratt was, as follows:
Gilster's Expert Designation at 1 (docket no. 82-3). The defendants maintain that Gilster's disclosure was insufficient to put them on notice that Pratt would testify to future emotional harm. I disagree. Gilster indicated that Pratt would testify to "the effects of Defendants' actions on Plaintiff," and I find that this summary of Pratt's opinions was sufficient under Rule 26(a)(2)(C). The defendants knew from Gilster's complaint that she sought future damages for emotional distress. See Gilster's Second Amended Complaint at 9-10 (docket no. 22). There was no unfair surprise to the defendants in letting Pratt testify to her opinion of whether Gilster would suffer future anxiety and depression as a result of the defendants' actions, as this falls within the category of "the effects of Defendants' actions on Plaintiff." Therefore, there was no discovery violation and exclusion of Pratt's expert opinion testimony was not warranted.
The defendants raise the argument, in their reply brief, that "[a] nurse is not qualified to offer her opinion concerning causation or the need for future care." Defendants' Reply at 3 (docket no. 100). An argument not raised until a reply brief is waived. See, e.g., Armstrong v. Am. Pallet Leasing, Inc., 678 F.Supp.2d 827, 872 n. 19 (N.D.Iowa 2009) (noting that inclusion of a new argument in a reply is contrary to N.D. Iowa L.R. 7.1(g) and practice in this circuit, citing cases). Even if the defendants had not waived this argument, I disagree that Pratt, as an advanced registered nurse practitioner, is unqualified to offer her opinion as to the need for future care. She testified that she pursued an "advanced [degree] three years past undergraduate in nursing" and that she is "able to formulate a medical diagnosis, prescribe medication." Transcript of Elizabeth Pratt's testimony at 3:2-6 (docket no. 85). The defendants do not actually criticize Pratt's specific qualifications but, instead, make a blanket statement that nurses are never qualified to offer an opinion as to the need for future care. Rule 702's requirements for expert testimony do not rise and fall with the proffered expert's title, but instead require the court to look at the expert's actual qualifications to offer opinions on a particular issue in a particular case. See FED.R.EVID. 702; Lujano v. Town of Cicero, No. 07 C 4822, 2011 WL 6097719, at *2 (N.D.Ill. Dec. 6, 2011) ("[N]urses, midwives, and other health care professionals can give expert testimony if they meet the standards for doing so under Rule 702."). I do not see, and the defendants do not raise, anything specifically lacking in Pratt's knowledge, experience, and training that rendered her unqualified to offer expert testimony on Gilster's need for future care.
Therefore, I did not err by permitting Pratt to testify as an expert.
Here, unlike the prosecutor in Hayes, who bolstered the victim's entire version of events, Gilster's counsel stressed the undisputed fact that Gilster had made a complaint of sexual harassment. Moreover, in contrast to Gilster's counsel, the prosecutor in Hayes spoke with the imprimatur of the state, which augmented the prejudicial effect of any improper comments. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (reasoning that because "the average jury ... has confidence that [the prosecutor's] obligations ... will be faithfully observed[,]" "improper suggestions, insinuations, and especially, assertions of personal knowledge [made by the prosecutor] are apt to carry much weight against the accused when they should properly carry none.").
However, Gilster's math does not add up. Her Exhibit A reads, as follows:
Exhibit A at 2 (docket no. 80-2). When I inquired at oral argument, Gilster maintained that, yes, indeed, she meant "reduced TO $9.50/hour × 12.5 hours/week × 52 weeks." However, the sum of $9.50 × 12.5 hours/ week × 52 weeks is $6,175.00, not $11,359.40. Thus, it appears that Gilster's calculations, instead, should read: "reduced BY $9.50/hour × 12.5 hours/week × 52 weeks," which would be $17,534.40 (her total mitigation wages at Maurice's: $11.24/hour × 30 hours/week × 52 weeks) minus $6,175.00, which is how Gilster arrives at the sum of $11,359.40. At any rate, my disagreements with Gilster's calculations are, ultimately, irrelevant because, as explained later, I conclude that she may not reduce her mitigation income to account for her part-time job, given the particular facts of this case.
I note that Gilster also reduced her mitigation income when calculating back pay, see Gilster's Trial Ex. 54 (docket no. 69-46), an issue that was before the jury. Because the defendants, in their Motion For Judgment As A Matter Of Law, New Trial, Or Remittitur, did not object to this reduction in Gilster's back pay calculation, I did not consider it.
IOWA CODE § 216.15(9). Although this provision refers to injunctive relief that the Iowa Civil Rights Commission may grant, the ICRA also provides that, for any ICRA action in court, "[t]he district court may grant any relief in an action under this section which is authorized by section 216.15, subsection 9, to be issued by the commission." Id. § 216.16(6); accord Lynch v. City of Des Moines, 454 N.W.2d 827, 835 (Iowa 1990) (explaining that a district court, in a case brought under the ICRA, "may grant any relief which would be available to the commission in an administrative proceeding under [the ICRA]....").
As to the need for a clearer retaliation policy and retaliation training for Primebank employees, I cite the ample evidence at trial of the way in which the entire Sioux City branch of Primebank appeared to turn against Gilster after she complained about sexual harassment and retaliation. Primebank's HR director Schulz testified that she had never received sexual harassment or retaliation training; moreover, rather than taking measures to prevent retaliation, she was the one who kept a "collection" of Gilster's mistakes after Gilster complained of retaliation.
McDonald, 860 F.2d at 1459 n. 4 (citing Johnson, 488 F.2d at 717-19).
The Supreme Court in Hensley cautioned that "[t]he district court also may consider other factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (C.A.5 1974), though it should note that many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate." Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. 1933.
