United States District Court, D. Maryland
Stephane J. Wantou Siantou, Plaintiff,
CVS Rx Services, Inc., Defendant
REPORT & RECOMMENDATIONS
Honorable Gina L. Simms United States Magistrate Judge
“Report and Recommendations” addresses the
“Plaintiff's Renewed Motion for Attorneys'
Fees, ” the supplemental pleadings filed related
thereto, and all memoranda in support of the same (ECF Nos.
172, 189, 194, 231) filed by Plaintiff Stephane Wantou
to 28 U.S.C. § 636, and Local Rule 301.5(b), the
Honorable Paul W. Grimm referred this matter to me to issue a
report and make recommendations. I have reviewed the
abovementioned pleadings and the responses from the Defendant
(ECF Nos. 176, 198). I believe that the issues have been
fully briefed, and do not believe that a hearing is
necessary. L.R. 105.6. As set forth more fully below, I
ultimately recommend that the Court grant the motion for
attorney's fees and award $162, 092.63
in fees, as set forth herein.
FACTUAL AND PROCEDURAL BACKGROUND
protracted litigation began more than three years ago on
December 14, 2016, when Plaintiff, without the assistance of
counsel, filed a Complaint against Defendant
(“CVS Rx”) in the U.S. District Court - Northern
District of Texas, alleging that he was unlawfully terminated
in violation of Title VII, 42 U.S.C. § 2000e. (ECF No.
1). Plaintiff subsequently filed a motion to transfer venue
to this Court, which was granted. (ECF Nos. 7, 8). Thereafter
on March 28, 2017, Daniel E. Kenney entered his appearance as
counsel for Plaintiff. (ECF No. 15).
7, 2017, Plaintiff filed an Amended Complaint, advancing four
counts against the Defendant: race discrimination (Count I)
and retaliation based on his protected class status (Count
IV); national-origin discrimination (Count II); and gender
discrimination (Count III), in violation of Title VII, 42
U.S.C. § 2000e, and 42 U.S.C. § 1981, and the
Maryland Fair Employment Practices Act (“MFEPA”),
Maryland Code, Title 20, Section 20-601, et. seq.,
respectively. Plaintiff sought compensatory and punitive
damages. The Amended Complaint described
allegedly-discriminatory and retaliatory conduct that
occurred between November 2014-January 14, 2016, which
Plaintiff alleged was predominantly committed by
Plaintiff's former supervisor, Tiana Holmes. The
allegedly-discriminatory conduct consisted of inter
alia: a November 2014 counseling for late arrival to
work and January 2015 and April 2015 reprimands for leaving
the pharmacy; as well as reprimands in August 2015, October
2015 following pharmacy audits; and lastly, his termination
on January 14, 2016. (ECF No. 29).
August 15, 2017, Defendant filed a motion to dismiss several
of Plaintiff's claims, asserting that Plaintiff failed to
administratively exhaust his Title VII and MFEPA claims.
Plaintiff decided not to challenge the motion, and on
September 19, 2017 the district court granted the motion.
(ECF Nos. 41, 42, 46). Accordingly, two counts remained, and
discovery occurred related to those claims: racial
discrimination, in violation of 42 U.S.C. § 1981 (Count
I), and retaliation, in violation of Title VII, 42 U.S.C.
§ 1981 and MFEPA (Count IV). (ECF No. 46).
18, 2018, Defendant filed a motion for summary judgment on
Counts I and IV, contending that Plaintiff could neither
establish retaliation nor racial discrimination. (ECF No. 67,
pp. 24-31). Plaintiff countered that he had established a
“plausible claim” of discrimination under the
statute as well as based on “disparate treatment
between Wantou and [an underling] by [his supervisor].”
(ECF No. 71, p. 35).
Honorable Paul W. Grimm entered an order and memorandum
opinion granting Defendant's motion as to Count I, and
granting in part and denying in part the motion as to Count
IV. Regarding Count I, the district court held that Plaintiff
failed to show that he was treated differently than employees
outside of the protected class and that his termination was
due to racial bias. Regarding Count IV, the retaliation
claims related to the November 2014 counseling, January 2015,
August 2015, and October 2015 reprimands and his January 2016
termination were retaliatory. (See ECF No. 82). In
that memorandum opinion, the district court denied
Plaintiff's request to file a surreply. (ECF No. 82, p.
11 n. 7). Thus, what remained for trial is the part of Count
IV related to whether Defendant retaliated against Plaintiff
by issuing an April 2015 Level III reprimand.
December 28, 2018, Defendant filed a motion in limine,
seeking to prevent Plaintiff from introducing at trial
evidence related to the dismissed claims, which it deemed
irrelevant. (ECF No. 87). Plaintiff filed a response thereto,
arguing that evidence leading up to the April 2015 reprimand
was relevant, e.g., to whether he engaged in a protected
activity, yet conceded that certain evidence after the April
2015 reprimand was not relevant, except possibly for
impeachment purposes . (ECF No. 104). Following the pretrial
conference, the district court granted the motion in limine
(ECF Nos. 110, 111).
were two trials. On February 28, 2019, following seven days
of trial, a jury found that Defendant retaliated against
Plaintiff, and on July 26, 2019, the district court entered
judgment in the amount of $125, 000 for Plaintiff. (ECF Nos.
130, 165). In the punitive damages trial, a jury returned a
verdict in favor of CVS Rx. (ECF Nos. 88, 111, 159).
entry of judgment, both CVS Rx and Plaintiff filed motions
for judgment and/or motions for new trial related to the
award of compensatory damages and the lack of award of
punitive damages, respectively. (ECF Nos. 178, 179). That
same day, Plaintiff filed two other motions: a motion for
reconsideration, or in the alternative, to amend the judgment
with respect to the court's order partially granting
summary judgment, and a reconsideration motion, or
alternatively to amend the judgment, regarding the
court's order partially granting Defendant's motion
to dismiss. (ECF Nos. 180, 181). The district court denied
all motions (ECF No. 205).
initially noted his request for attorney's fees in a
letter, and later superseded it with an actual motion and
supplemental submissions. The matter has been fully briefed
(ECF Nos. 163, 172, 176, 189, 194, 198, 231). The matter was
referred to me to author a Report and make recommendations.
(ECF No. 183).
MOTION FOR ATTORNEY'S FEES
VII of the Civil Rights Act of 1964 authorizes an award of
attorney's fees in certain circumstances. In this case:
“[i]n any action or proceeding under this subchapter
the court, in its discretion, may allow the prevailing party,
other than the [Equal Employment Opportunity] Commission or
the United States, a reasonable attorney's fee (including
expert fees) as part of the costs, and the Commission and the
United States shall be liable for costs the same as a private
42 U.S.C. § 2000e-5(k); see also 42 U.S.C.
§ 1988(b). Before deciding whether an award of
attorney's fees is appropriate in a given litigation,
then, a court must determine whether the party seeking fees
is a “prevailing party, ” a threshold question
for which the Supreme Court has said it will accord a
“generous formulation.” Hensley v. Eckerhart
et al., 461 U.S. 424, 433 (1983). A plaintiff is a
prevailing party for the purpose of an attorney's fees
award if the plaintiff succeeds “on any significant
issue in litigation which achieves some of the benefit [the
party] sought in bringing suit.” Id. at 433.
Plaintiff is a prevailing party, a court must determine what
fee is reasonable. Hensley, 461 U.S. at 433. To do
so, courts engage in a three-step process.
a court must calculate the lodestar, i.e., “the number
of reasonable hours expended [multiplied by] a reasonable
rate.” Randolph, 715 Fed. App'x 227, 230
(4th Cir. 2017) (citing McAfee v. Boczar,
738 F.3d 81, 88 (4th Cir. 2013)). To determine what is
“reasonable” in the lodestar calculation, a court
is bound to apply the factors set forth in Johnson v.
Georgia Highway Express Inc., 488 F.2d 714,
717-19 (5th Cir. 1974). These twelve factors are the
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5)
the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case;
(11) the nature and length of the professional relationship
with the client; and (12) awards in similar cases.
Id. (“Johnson factors”);
McAfee, supra, 738 F.3d at 88.
according to Randolph, a court must “subtract
fees for hours spent on unsuccessful claims
unrelated to successful ones.” 715
Fed. App'x at 230 (citation omitted)(emphasis supplied).
In that regard, if a plaintiff prevails on only some of the
claims, “the number of hours may be adjusted
downward.” Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169, 174 (4th Cir. 1994).
per Randolph, a court should award “some
percentage of the remaining amount, depending on the degree
of success enjoyed by the plaintiff.”
Randolph, 715 Fed. App'x at 230 (citing to
McAfee, 738 F.3d at 88).
Plaintiff's Request for Attorney's Fees
seeking an award of attorney's fees must establish
entitlement to same by documenting the hours expended and the
corresponding hourly rates. Hensley, 461 U.S. at
case, Plaintiff requests fees for 587.3 hours of attorney
work, and 16.6 hours of paralegal work, for a total of 603.9
hours. (ECF No. 194). Plaintiff's first petition and
attachments detail 530.8 hours of work related to: case
administration, case development, pleadings, document
production, interrogatories, ADR, depositions, pre-trial
motions practice, attending court hearings, trial
preparation, trial, fee petition preparation, and about 4.6
hours on post-trial motion-related issues. (ECF Nos. 172,
231). Plaintiff's supplemental petition identifies 56.5
hours related to post-trial motions, including
reconsideration motions, preparing a reply to the fee
petition request, and hours related to the supplemental
request for attorney's fees. The additional fees sought
related to post-trial motions are for hours: (a) pertaining
to drafting an opposition to Defendant's motion for
judgment as a matter of law/for a new trial; (b) for a motion
regarding the lack of punitive damages; (c) related to a
motion for reconsideration, or in the alternative, to amend
the judgment with respect to the court's order partially
granting summary judgment; and (d) related to a
reconsideration motion, or alternatively to amend the
judgment, regarding the court's order partially granting
Defendant's motion to dismiss. (ECF Nos. 194-1, 231-1).
work, Plaintiff offers two alternative theories of
“reasonable” fees: a total amount of $244,
904.10, calculated by using the Laffey
Matrix rate of $417/hour (attorney) and a rate of
$100/hour (paralegal) and multiplying it by the attorney and
paralegal hours incurred; or, a total amount of $176, 190,
computed by using the U.S. District Court of Maryland Local
Rules, Appendix B, rate of $300/hour(attorney) and $100/hour
(paralegal) and multiplying it by the number of hours
incurred. (ECF Nos. 172-4, 231-2). In addition, Plaintiff
conducted his own analysis of the ...