Opinion
CV-16-03944-PHX-ROS
11-30-2021
Nicholas Alozie, Plaintiff, v. Arizona Board of Regents, et al., Defendants.
ORDER
HONORABLE ROSLYN O. SILVER SENIOR UNITED STATES DISTRICT JUDGE
Plaintiff Nicholas Alozie is a professor at Arizona State University, a public university governed by Defendant Arizona Board of Regents (collectively, “ASU”).Alozie brought this matter in 2016, alleging three claims under Title VII of the Civil Rights Act of 1964 and two claims under 42 U.S.C. § 1983. (Doc. 1-1). Alozie alleged ASU discriminated and/or retaliated against him as a result of a comment he made during an interview during the dean search for the ASU College of Letters and Sciences. (Doc. 1-1 at 3). After the Court granted partial summary judgment in favor of Defendants, the parties proceeded to a jury trial on Alozie's Title VII retaliation claim. (Doc. 152 at 23). On August 16, 2021, the jury found ASU retaliated against Alozie because of his protected expression, resulting in $357,000 in harm to Alozie. (Doc. 244).
Arizona State University is a non-jural entity. The Arizona Board of Regents is the entity subject to suit pursuant to A.R.S. § 15-1625(B)(3).
On September 8, 2021, Alozie filed a motion seeking $189,519.00 in attorneys' fees. (Doc. 274 at 1). Defendants filed a response on October 22, arguing Alozie's counsel are not entitled to the full attorneys' fees award they seek and instead asking the Court to award Alozie's counsel $120,602.52. (Doc. 291 at 1). The Court agrees with Defendants that Alozie's counsel are not entitled to $189,519.00. They will instead be awarded $113,161.35.
BACKGROUND
Nicholas Alozie is a professor at ASU and has been the head of the Social Science Department at the Polytechnic campus since 2005. (Doc. 22 at 5). In November 2014, Alozie submitted himself for consideration to be dean of the ASU College of Letters and Sciences. (Doc. 137 at 8). Three other faculty members applied for the position: Duane Roen, the interim dean; Fabio Milner, a professor of mathematics and Director of Mathematics for STEM Education; and Joseph Carter, associate dean of ASU's school of business. (Doc. 137 at 8). Alozie is African-American and originally from Nigeria, Milner is Latino, and Roen and Carter are Caucasian. (Doc. 141 at 17). The fourteen-member search committee determined each of the applicants met the required qualifications for the position and interviewed each applicant. (Doc. 137 at 9). The interviews were held on December 1, 2014 by the committee and the committee chair, Marlene Tromp.
Alozie brought a written statement to his interview that he planned to read to the search committee. (Doc. 137 at 9). He distributed copies of the statement to the committee. (Doc. 137 at 9). Rather than permitting Alozie to read his statement aloud, the search committee went straight to its pre-planned questions (Doc. 137 at 9) because no other candidate had the opportunity to provide a similar statement to the committee. (Doc. 277 at 17). Alozie's statement made clear that he thought the search process was a sham because Roen had already been preselected to be dean. (Doc. 137 at 10). In relevant part, Alozie's statement explained,
I worked with Milt Glick, our former provost, and other top ASU officials to close the ‘Revolving Door' of minority scholars leaving ASU as quickly as they arrived because they didn't think the environment was favorable enough to warrant their staying at ASU. The complaint among young minority faculty was that ASU was simply a stopover and for a rewarding career with advancement they had to move to another university. They never saw ASU as a place to build a career.
. . .
Indeed, the word in the College is that there is really no vacancy here, that this Dean's position has already been promised and that the university is simply going through the motions to dot its i's and cross its t's with this hiring process. Thus, I am expected, just like everyone else in the college to back off and let the impending coronation take place.(Doc. 137-1 at 199-200). The statement said Alozie “decided to apply for this position . . . to create a level playing field for women and minorities.” (Doc. 137-1 at 201). The statement then went on to explain why he felt he was qualified, and ended with an expression of gratitude toward the committee for the “opportunity to talk about my eligibility for the position.” (Doc. 137-1 at 202). Alozie verbally asked the committee “not to put a glass ceiling on my career.” (DF 238).
After the interview, some members of the committee felt Alozie “came across as testy, defensive, and aggressive in his interview” and “viewed Plaintiff's accusation that they had decided on a candidate and were going through the emotions of a search as an attack on their integrity.” (Doc. 137 at 11-12). The record at trial indicated several members of the committee responded poorly to Alozie's statement. See, e.g., (Doc. 277 at 12, 27, 47; DF 520, 3209, 3634).
Alozie brought this action in Arizona state court on September 2, 2016. (Doc. 1-1 at 19). His complaint raised five claims: (1) race and national origin discrimination under Title VII; (2) retaliation under Title VII; (3) disparate impact under Title VII; (4) violation of his First Amendment rights brought under 42 U.S.C. § 1983; and (5) violation of his rights under the Equal Protection Clause under § 1983. (Doc. 22 at 14-19). The Court granted a joint stipulation limiting the scope of Alozie's discrimination and retaliation claims, and dismissing most of the defendants from the § 1983 claims. (Doc. 117). After the Court granted Defendants' motion for summary judgment in part, the parties proceeded to trial only on Alozie's claim that ASU retaliated against him in response to his written statement submitted to the search committee. (Doc. 152 at 23).
The jury found in favor of Alozie on the unlawful retaliation claim and awarded damages in the amount of $357,000. (Doc. 244). On September 1, the Court reduced the damage award to $300,000 pursuant to the statutory cap codified at 42 U.S.C. § 1981a(b)(3)(D). (Doc. 266 at 2).
LEGAL STANDARD
The Court may award a reasonable attorney's fees to the prevailing party in Title VII litigation. 42 U.S.C. § 2000e-5(k). “[T]he court's discretion to deny a fee award to a prevailing plaintiff is narrow.” New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68 (1980). “The fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked.” Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). The party opposing the motion for attorneys' fees bears a burden of rebutting “that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits.” Id. at 1397-98. The Court must provide a “concise but clear explanation” of the reasons behind its fee award. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The Ninth Circuit requires district courts to “[s]how their work” in calculating fee awards. See Padgett v. Loventhal, 705 F.3d 1205, 1208 (9th Cir. 2013).
In circumstances, such as this, where a plaintiff has not prevailed on all claims, the Supreme Court has held that the district court may reduce the award of attorneys' fees as a matter of equitable judgment. See Hensley, 461 U.S. at 436-37. District courts retain this discretion even if the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. See Id. at 436. Because it is often difficult to determine how many attorney hours were expended on each issue or claim, “the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” See Id. at 435. “There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.” Id. at 436-37.
The first step in the attorney fee analysis is to determine the “‘lodestar' figure, which is the number of hours reasonably expended multiplied by a reasonable hourly rate.” Gates, 987 F.2d at 1397. The Supreme Court has repeatedly held there exists “a ‘strong presumption' that the lodestar represents the ‘reasonable'” attorney fee. City of Burlington v. Dague, 505 U.S. 557, 562 (1992) (quoting Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986)). Nevertheless, the Supreme Court has instructed district courts to “exclude from this initial fee calculation hours that were not ‘reasonably expended.'” Hensley, 461 U.S. at 434 (quoting S. Rep. No. 94-1011, at 6 (1976)). It has also noted, “[h]ours that are not properly billed to one's client also are not properly billed to one's adversary.” Id. (quoting Copeland v. Marshall, 641 F.2d 880, 891 (1980) (en banc)) (emphasis omitted).
ANALYSIS
I. Lodestar figure
Alozie's counsel seek $189,519.00 in attorneys' fees. (Doc. 274 at 1). The lodestar figure claimed by Alozie's counsel will be reduced significantly for the reasons set forth below.
A. Hourly rate
Alozie's counsel seek rates beyond that which they charged their client. They are not entitled to a fee award based on the elevated rates. See Gusman v. Unisys Corp., 986 F.2d 1146, 1149-50 (7th Cir. 1993) (“A client who retains a lawyer with an hourly rate of $100, when the average in the community is $150, is entitled to collect from his adversary only $100 for each hour reasonably expended.”). In the absence of “specific evidence” demonstrating entitlement to a fee enhancement, see Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010), the Court will award prevailing counsel the fee that actually would have been charged to their client under counsel's retention agreement. The Court considers this a corollary to the Supreme Court's instruction in Hensley that “[h]ours that are not properly billed to one's client also are not properly billed to one's adversary.” Hensley, 461 U.S. at 434 (citation omitted).
Thus, although Joshua Carden seeks an hourly fee of $400 per hour (Doc. 274-1 at 11), he will be awarded a fee of $350 because that is the hourly rate listed in the contingent fee agreement between Alozie and Carden. (Doc. 274-1 at 8). Although Alozie's prior counsel, Tod Schleier, seeks $500 per hour, he will be awarded $250 per hour based on the discounted hourly rate that was charged to Alozie pursuant to their fee agreement. (Doc. 274-2 at 5). Although counsel seek $160 per hour for the work completed by Schleier's paralegal, Cindy Anderson (Doc. 274 at 5), the Court will award only the $80 per hour set forth in the fee agreement. (Doc. 274-2 at 10).
All other counsel and paralegals will be awarded the rate they seek because the record does not indicate they seek an enhanced rate. For example, the $125 per hour charged by Carden's paralegals and the $350, $225, and $135 per hour charged by Michelle Matheson, her associate, and her paralegal, respectively, are reasonable an in conformity with the rate actually charged to Alozie. (Doc. 274-1 at 4, 15).
B. Hours expended
The exhibits submitted with counsels' fee application appears to seek an attorney fee award for all hours expended on this litigation. However, because Alozie achieved only partial success-on only one of Alozie's five claims-the Court will reduce the total number of hours calculated into the lodestar figure. The Court is not required to set forth an hour-by-hour analysis of the fee request. See Gates, 987 F.2d at 1399. It instead “has the authority to make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure ‘as a practical means of trimming the fat from a fee application.'” Id.
Alozie proceeded to trial and prevailed on only one of his five claims and received roughly half the verdict amount he sought. Based on the exhibits provided, the Court is unable to determine how many of these hours were expended on the victorious claim and how many on the claims that were dismissed. Defendants suggest the attorney hours expended by Alozie's counsel should be reduced by 15%. (Doc. 291 at 8). Left entirely to its own inclinations, the Court might reduce the hours expended by more than 15% due to the relatively limited degree of success obtained by Alozie's counsel because the Court doubts that Alozie's counsel used 85% of its billed hours on the retaliation claim. However, because of the inherent imprecision in across-the-board percentage cuts, the Court will instead adopt the reasonable and relatively modest 15% reduction suggested by Defendants.
Across-the-board percentage cuts are common in cases where the Plaintiff achieved only partial or limited success. See, e.g., Dunlap v. Liberty Nat'l Prods., Inc., 878 F.3d 794, 799 (9th Cir. 2017) (holding the district court did not abuse its discretion in reducing the attorney fee award by 50% due to limited success); Schwarz v. Secretary of Health & Hum. Servs., 73 F.3d 895, 905 (9th Cir. 1995) (“The court then assumed that 25% of the hours expended by Schwarz's lawyers to that point were spent entirely on the one remaining claim . . . This approach is entirely consistent with the cases in which we have applied Hensley to hold that a district court does not abuse its discretion when it resorts to a mathematical formula, even a crude one, to reduce the fee award to account for limited success.”).
C. Lodestar
The final lodestar figure, with the above adjustments incorporated, is $113,161.35.
II. Further reductions
Defendants ask the Court to further reduce the fee by 10% due to Alozie's limited success. (Doc. 291 at 12). The Court will not do so because it considered Alozie's partial success in making the 15% reduction in hours. An additional 10% reduction would therefore be duplicative of the analysis in calculating the lodestar figure. Cf. Perdue, 559 U.S. at 553 (“[W]e have noted that ‘the lodestar figure includes most, if not all, of the relevant factors constituting a reasonable attorney's fee,' and have held that an enhancement may not be awarded based on a factor that is subsumed in the lodestar calculation.”) (quoting Delaware Valley, 478 U.S. at 566) (internal quotation omitted).
Accordingly, IT IS ORDERED Plaintiff Nicholas Alozie's First Motion for Attorney Fees (Doc. 274) is GRANTED IN PART. … … … … …
IT IS FURTHER ORDERED the Clerk of Court is directed to enter judgment in favor of Plaintiff and against Defendant Arizona Board of Regents in the amount of $113,161.35.