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Wantou Siantou v. CVS Rx Services, Inc.

United States District Court, D. Maryland

January 14, 2020

Stephane J. Wantou Siantou, Plaintiff,
CVS Rx Services, Inc., Defendant


          Honorable Gina L. Simms United States Magistrate Judge

         This “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 Siantou (“Plaintiff”).

         Pursuant 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.


         This 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[1] (“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).

         On June 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).

         On 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).

         On May 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).[2]

         The 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.

         On 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).

         There 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).

         Following 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).

         Plaintiff 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).


         A. Legal Standard

         Title 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 person.”

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.

         Where a 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.

         First, 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 following:

(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.

         Second, 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).

         Finally, 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).

         B. Plaintiff's Request for Attorney's Fees

         A party 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 437.

         In this 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).

         For the work, Plaintiff offers two alternative theories of “reasonable” fees: a total amount of $244, 904.10, calculated by using the Laffey Matrix[3] 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 ...

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