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Danielle L. Pickett v. Sheridan Health Care Center

March 29, 2011


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Plaintiff Danielle Pickett worked as a housekeeper for Defendant Sheridan Health Care Center ("Sheridan"), a nursing home for elderly people with physical and mental infirmities. Pickett won a jury verdict on her claim that Sheridan retaliated against her for her complaints about sexual harassment by residents of Sheridan. The jury awarded a total of $65,000 ($15,000 in compensatory damages and $50,000 as punitive damages), and this court awarded her an additional $1,357.42 in lost back pay. See Pickett v. Sheridan Health Care Ctr., No. 07 C 1722, 2009 WL 2407736 (N.D. Ill. Aug. 4, 2009). The Court of Appeals affirmed the judgment in a published opinion. Pickett v. Sheridan Health Care Ctr., 610 F.3d 434 (7th Cir. 2010). Plaintiff's attorneys, Ernest T. Rossiello & Associates, P.C., now seek an award of attorneys fees in the amount of $131,665.88 and $1,271.27 in costs. The court must ordinarily award reasonable fees pursuant to 42 U.S.C. § 1988 unless special circumstances render such an award unjust. Blanchard v. Bergeron, 489 U.S. 87, 89 n.1 (1989) citing Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968). For the reasons that follow, the motion is granted in part and denied in part.


The reasonableness of an award of attorneys' fees is determined using the lodestar method, starting by multiplying the number of hours reasonably expended by counsel's reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Hours that are excessive, redundant or otherwise unnecessary are not "reasonably expended" and should therefore be excluded from this calculation. Id. at 434. The district court is also expected to consider other factors such as the degree of success obtained by the prevailing party's counsel, the novelty and difficulty of the questions presented, the skill required by the particular case, the customary fee, whether the fee is fixed or contingent, the experience of the attorneys, and awards in similar cases. After weighing these considerations, the court exercises its discretion to render an appropriate award without being constrained by any precise formula. Id. at 436-37.

Sheridan has objected to Plaintiff's fee request on a number of grounds. (Defendant's Response to Motion for Attorney's Fees [144].) Defendant argues that the fee petition itself is untimely, that the amount requested is excessive in light of Plaintiff's recovery, that hours devoted to this litigation are unreasonable, and that Plaintiff's counsel's claimed billing rate is too high. The court addresses the objections individually.


Sheridan's first objection requires little discussion. Sheridan argues that the petition was untimely because it was filed more than 91 days after entry of judgment. See L.R. 54.3. Plaintiff had moved to extend the time for filing of the fee petition, however, and the court ultimately granted leave to delay the filing until after it had ruled on both parties' post-trial motions [97]. Plaintiff's motion was filed during that extended period and the court stayed ruling on the request for fees, at Defendant's request, until after the appeal was complete [127]. The timeliness objection is overruled.


Defendant's second objection is a proportionality argument: Sheridan observes that the fees Plaintiff has requested are "almost 9 times the amount of the compensatory award." (Defendant's Response, at 3.) Proportionality is a legitimate concern in determining an appropriate attorneys' fee award, but our Court of Appeals has been unwilling to adopt "any mechanical rules requiring that a reasonable attorney's fee be no greater than some multiple of the damages claimed or recovered." Moriarty v. Svec, 233 F.3d 955, 967 (7th Cir. 2000). The Seventh Circuit has observed, in addition, that fee-shifting statues preclude any consideration of the question whether a small claim is "worth" the effort to pursue it. Instead, where the prevailing party is entitled to an award of fees, the court looks only at "whether the hours spent were a reasonable means to that necessary end." Anderson v. AB Painting & Sandblasting, Inc., 578 F.3d 542, 546 (7th Cir. 2009). Plaintiff here won a very modest back pay award but a more substantial award of compensatory damages and attorneys' fees. Sheridan's proportionality objection is overruled.

For similar reasons, the court is unmoved by Sheridan's contention that the litigation was "unnecessarily prolonged" by Plaintiff's rejection of a $21,000 settlement offer prior to trial. The verdict was substantially greater than that. Defendant suggests the court should discount that victory by the fact that Plaintiff is contractually obligated to pay her lawyers a contingency from her winnings, but that contractual obligation does not support the conclusion that Plaintiff's refusal to settle the case requires a reduction in the fee award.

Number of Hours

Defendant's remaining arguments require closer examination. Defendant argues that the number of hours of attorney time for which compensation is sought is excessive, and in certain respects, the court agrees. Plaintiff alleged that she was the victim of sexual harassment and retaliation. The court granted summary judgment in favor of Defendant on the sexual harassment claim. Defendant urges that "virtually all of the [attorney] time" prior to the court's ruling was devoted to the claim of sexual harassment and that the fee petition must be reduced accordingly. If the plaintiff did not prevail on all her claims, the court excludes the hours spent on any unsuccessful claims that are unrelated to the successful claim. Hensley, 461 U.S. at 440; Spanish Action Committee of Chicago v. City of Chicago, 811 F.2d 1129, 1133 (7th Cir. 1987). If the claims stem from the same core of facts or are based on related legal theories, then the court does not exclude the additional hours, but determines what number of hours is reasonable in light of the result achieved. Moriarty v. Svec, 233 F.3d 955, 964 (7th Cir. 2000); Jaffee v. Redmond, 142 F.3d 409, 414 (7th Cir. 1998).

In response to this argument, Plaintiff suggests that the sexual harassment issue was "a losing argument related to a prevailing claim." (Plaintiff's Reply [148] at 6.) The court disagrees. Sexual harassment was an independent claim for relief, was briefed and argued as such, and was the subject of substantial discovery. Because counsel made no voluntary reduction in the claim for fees to account for lack of success on the claim, the court will do so. The court recognizes that some discovery concerning sexual harassment would undoubtedly have been necessary, even had counsel recognized that the employer's prompt response to Plaintiff's complaints about resident's induct defeated that claim. Some reduction in the hours of attorney time sought is nevertheless required to account for the lack of success on an issue that consumed the bulk of the discovery and summary judgment briefing. Plaintiff's attorneys' billing records (perhaps understandably) lack detail sufficient to make a precise calculation possible, so the court will reduce the number of hours requested for litigation prior to summary judgment-43.21 hours-by 20 hours of time.

Defendant challenges the number of hours devoted to the appeal, as well. By Defendant's calculation, Plaintiff seeks compensation for 53.13 hours spent during the "appeal phase." Chart C attached to Defendant's objections, however, lists time devoted to preparation of the appeal brief and oral argument, a total of just 41.03 hours. In the court's view, the description of time devoted to that effort appears reasonable. The appeal generated a lengthy opinion, and appearance before our Court of Appeals requires attention to detail and careful preparation. The court notes that ...

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