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Before you make the plaintiff’s lawyers work extra hard, be sure you can afford to pay them if they win.

Coles v. Deltaville Boatyard, Case 3:10-cv-491 (E.D.Va. Dec. 19, 2011). In this case, the federal district court in Richmond awarded over $62,000 in fees and costs to the plaintiff as the “prevailing party” where the plaintiff had been awarded only $2,000 in trial, a result the court initially called “de minimis.”

The underlying case is quickly told: Coles had worked for Deltaville for less than one year when he was terminated. He quickly found a new job with another employer. Coles then filed a charge with the Equal Employment Opportunity Commission (“EEOC”), claiming that throughout his employment with Deltaville he had been the victim of unlawful race discrimination.

When Deltaville received a copy of his EEOC charge it contacted Coles’ new employer, Crown, and “warned” Crown that Coles might file similar charges against it. Deltaville also faxed a copy of the charge to Crown. Crown later fired Coles for reasons unrelated to his EEOC charge.

Coles quickly found yet another job, and Deltaville contacted this new employer as well, again “to warn” it of Coles’ penchant for complaining about race discrimination. Ultimately Coles was fired again, but his third termination was for legitimate, lawful reasons as well.

Coles then sued Deltaville for retaliation.

The court had no difficulty in finding for Coles: Deltaville was engaged in unlawful retaliation when it contacted his new employers and told them about his EEOC charge against Deltaville. The court further found that Deltaville had shown reckless indifference to Coles’ federally protected right of filing a charge asserting race discrimination with the EEOC.

Coles’ legal problem was that he had suffered very little in damages. He had not lost either of his two subsequent jobs because of Deltaville’s conduct. (The court denied his claim of one week of lost income in the amount of $768.) He claimed emotional injuries, but the court found his claims exaggerated and awarded him only $1,000. The court then added another $1,000 in punitive damages.

Based on this, Deltaville argued strenuously that Coles was not the “prevailing party” and that he was thus not entitled to any attorney’s fee. The court disagreed. First, the court clarified its earlier description of Coles’ award as “de minimis.” The court regretted this term as “a poor choice of words” and stated that an award of $2,000 was not a trifling or minimal sum of money. The court had merely wished to indicate that such a sum was relatively small compared to awards typically sought in Title VII retaliation cases.

The court then looked at the amount of time Coles’ lawyers spent in his litigation. Several factors made this case quite work-intensive: first, the court noted that Deltaville, unbeknownst to the court, had repeatedly threatened to file a motion for sanctions against Coles’ lawyers. While it never went through with it, this threat drastically increased the amount of time spent on the case by plaintiff’s counsel. Secondly, Deltaville filed four separate motions to have Coles’ claims dismissed. As a result, Coles’ attorneys spent over 330 hours researching and defending Coles’ claims and representing him in trial. The court found all these hours necessary and reasonable. However, the court then held that the relatively small award justified a reduction of the fee award by one third. Coles’ fee request for $88,675.00 was therefore reduced to $59,000. The court also awarded about $3,000 for costs incurred by the plaintiff.

The ratio of 31:1 between the fee award and the damage award is certainly unusual for a case involving claims of retaliation. But, as the court pointed out, the Defendant knew full well throughout the litigation that it would have to pay the Plaintiff’s reasonable attorney’s fee if the Plaintiff won. The Defendant’s strategy of fighting over every single issue – filing four separate motions to have the case dismissed – was therefore costly: it vastly increased the both parties’ fees. Having lost its various motions, and having lost in trial, Defendant’s protestation over the large amount of fees seems insincere.

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