Theresa Waldo v. Consumers Energy Company

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0217p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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THERESA WALDO,
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Plaintiff-Appellee,
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No. 12-1518
v.
,
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Defendant-Appellant. -
CONSUMERS ENERGY COMPANY,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:06-cv-00768—Janet T. Neff, District Judge.
Argued: March 7, 2013
Decided and Filed: August 9, 2013
Before: MOORE, SUTTON, and DONALD, Circuit Judges.
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COUNSEL
ARGUED: Richard J. Seryak, MILLER CANFIELD, PADDOCK AND STONE,
P.L.C., Detroit, Michigan, for Appellant. Stephen R. Drew, DREW, COOPER &
ANDING, Grand Rapids, Michigan, for Appellee. ON BRIEF: Richard J. Seryak, Brian
M. Schwartz, MILLER CANFIELD, PADDOCK AND STONE, P.L.C., Detroit,
Michigan, for Appellant. Stephen R. Drew, Adam C. Sturdivant, DREW, COOPER &
ANDING, Grand Rapids, Michigan, for Appellee. Paul D. Ramshaw, U.S. EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus
Curiae.
MOORE, J., delivered the opinion of the court, which DONALD, J., joined.
SUTTON, J. (pp. 30-33), delivered a separate opinion concurring in part and dissenting
in part.
1
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_________________
OPINION
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KAREN NELSON MOORE, Circuit Judge. While employed as an electrical line
worker, Plaintiff-Appellee Theresa Waldo (“Waldo”) was subjected routinely to sexual
harassment. Waldo’s coworkers displayed sexually explicit materials in the workplace,
locked her in a porta-potty, demanded that she “pee like a man” and clean up her male
coworkers’ tobacco spit, ridiculed her for bringing a purse to work, ostracized and
ignored her on job sites and in training sessions, and referred to her using gender-
specific demeaning language. Waldo initiated litigation against her employer,
Defendant-Appellant Consumers Energy Company (“Consumers”), bringing six federal
and state-law discrimination claims, as well as a state-law tort claim. Although a jury
rendered a verdict in favor of Consumers following a trial in 2009, the district court
granted Waldo’s motion for a new trial on her Title VII hostile-work-environment claim,
finding that the jury’s verdict as to this claim was against the clear weight of the
evidence. After a second trial in 2010, the jury found in favor of Waldo, and the district
court awarded Waldo attorney fees and costs as a prevailing plaintiff. On appeal,
Consumers contends that the district court erred by granting a new trial on Waldo’s
hostile-work-environment claim, denying Consumers’s renewed motion for judgment
as a matter of law after the second trial, and awarding Waldo excessive attorney fees and
costs. For the reasons that follow, we AFFIRM the judgment of the district court on all
grounds.
No. 12-1518 Waldo v. Consumers Energy Company Page 3
I. BACKGROUND
Waldo began working for Consumers in Grand Rapids, Michigan in 1997 as a
part-time mail room clerk. R. 291 (1st Trial Tr. at 1719) (Page ID #6448).1 In June
2001, Waldo transferred to the Transmission Department, which involved working in
rural areas with electric lines containing high-voltage current attached to tall steel
towers. Appellant Br. at 12–13. From September 2002 until June 2005, Waldo
participated in an apprentice program that trained employees to become journeyman
electrical workers. R. 291 (1st Trial Tr. at 1719–20) (Page ID #6448–49). Waldo
alleges that from 2001 until 2005 she was subjected to “constant and unwelcome
gender/sexual harassment” at Consumers. R. 1 (Compl. ¶ 10) (Page ID #4).
While working with the Transmission crews, Waldo testified that she constantly
was called derogatory and demeaning names, including “bitch,” “cunt,” and “wench”;
her coworkers would “just hammer [her] all day long,” never referring to her by her real
name. R. 297 (2nd Trial Tr. at 611–15) (Page ID #7162–66); see id. at 629 (Page ID
#7180). While working in rural areas, where male crew members would urinate
outdoors, Waldo testified that her coworkers would not permit her to use work trucks to
travel to a nearby bathroom. See id. at 640–41 (Page ID #7191–92). Waldo says her
male coworkers told her: “You want to work in a man’s world, pee like a guy.” Id. at
641 (Page ID #7192). Waldo also described an incident when her coworkers locked her
in a trailer with instructions to clean up their tobacco-chew spit from the floor. See id.
at 644–45 (Page ID #7195–96). On another day, Waldo’s male coworkers locked her
in a porta-potty—she escaped only after using a pocket knife to cut through the tape her
coworkers had used to seal the door. See id. at 649–51 (Page ID #7200–02). Further,
there were sometimes sexually explicit playing cards, calendars, and magazines in the
work trucks. See id. at 671, 676 (Page ID #7222, 7227).
1
The facts described here were testified to in two separate trials. Because the testimony was
largely the same in both trials, we will describe the facts generally, interspersing citations to the records
from both trials. The specific testimony and evidence relating to the grant of a new trial and the denial of
judgment as a matter of law after the second trial will be considered and evaluated separately. See infra
Parts II–III.
No. 12-1518 Waldo v. Consumers Energy Company Page 4
Waldo testified that on her first day of the apprentice training program, her
supervisor, James McDonald (“McDonald”), told her that he intended to “wash [her]
out” of the program because this was not a job for a woman, and he did not want women
in the program. R. 283 (1st Trial Tr. at 202) (Page ID #4933). Waldo told the jury about
an incident when her coworkers threw her purse out of the window of one of the trucks
into the dirt and told her that “purses aren’t allowed here in this type [of] work.” R. 297
(2nd Trial Tr. at 615–17) (Page ID #7166–68). When Waldo tried to carry a smaller
change purse in her pocket, the crew called her a “dike.” Id. at 618 (Page ID #7169).
Waldo often rode alone to the rural work sites, because male coworkers avoided
traveling with her in order to prevent being teased about having sex with her. See id. at
622 (Page ID #7173).
In late 2002, Waldo began working mainly with Distribution crews, which
involved “maintenance work performed on wooden utility poles supporting lower
voltage lines such as those found in residential areas.” Appellant Br. at 13. Waldo
testified that her coworkers’ hostility continued during her time working with
Distribution crews. See R. 297 (1st Trial Tr. at 668–69) (Page ID #7219–20). Waldo’s
coworkers in Distribution isolated her and refused to work with her, making it clear that
women were not welcome. See id. at 676–80 (Page ID #7227–31). There was also
testimony concerning an incident on April 18, 2005, when Waldo was unexpectedly
evaluated by members of the Apprentice Committee. Waldo made mistakes while she
was climbing a pole during the evaluation, which led to her dismissal from the training
program. Both Waldo and her coworker Michael Cutts (“Cutts”) testified that they
perceived this surprise evaluation to be motivated by gender and engineered to push
Waldo out of the program. See id. at 683–89 (Page ID #7234–40); R. 284 (1st Trial Tr.
at 413–16) (Page ID #5144–47). Consumers asserts that this was a routine visit by the
Apprentice Committee to observe all of the trainees, and that Waldo’s dismissal from
the program was based on the severity of the mistakes she made. See Appellant Br. at
25–27.
No. 12-1518 Waldo v. Consumers Energy Company Page 5
Waldo complained numerous times about the harassment to her supervisor,
McDonald, a union representative, and Human Resources (“HR”) staff members Pam
Bolden (“Bolden”) and William Eckert (“Eckert”). See, e.g., R. 295 (2nd Trial Tr. at
389–98) (Page ID #6941–50); id. at 214–19 (Page ID #6766–71); R. 298 (2nd Trial Tr.
at 966–67) (Page ID #7517–18). In March 2003, Waldo had a meeting with members
of Consumers’s HR Department, including Bolden, in which she complained that she
was being sexually harassed. However, Bolden testified that no formal investigation
followed from this meeting, and that no formal reprimands were given to any of Waldo’s
coworkers or supervisors. See R. 294 (2nd Trial Tr. at 115) (Page ID #6666).
Consumers did respond to Waldo’s complaints by holding a “diversity training session,”
but that session did not lead to an end to the sexual harassment in Waldo’s workplace.
See Appellee Br. at 20–21. The diversity session covered “all aspects of diversity” but
did not involve a discussion of the kinds of sexual slurs and sexual harassment about
which Waldo complained. See R. 286 (1st Trial Tr. at 836–37) (Page ID #5566–67).
After Waldo was removed from the apprentice program in June 2005, this
litigation commenced. Waldo brought seven claims, all centering around allegations that
she was discriminated against and harassed because of her gender; the complaint
included three Title VII claims (a sex-discrimination claim, a hostile-work-environment
claim, and a retaliation claim), three state-law sex-discrimination claims, and a tort claim
for intentional infliction of emotional distress. See R. 1 (Compl. at 8–15) (Page ID
#9–16). Prior to trial, Waldo withdrew her claim for intentional infliction of emotional
distress. Appellee Br. at 4 n.1. Before jury deliberations, she also withdrew her three
state-law sex-discrimination claims. Id.
A trial was held in August and September 2009, and the jury rendered a verdict
in favor of Consumers on the three remaining federal claims. See R. 191 (Judgment)
(Page ID #3080). Waldo then filed a motion for a new trial pursuant to Federal Rule of
Civil Procedure 59, arguing that the jury verdict on Waldo’s retaliation and hostile-
work-environment claims under Title VII was against the clear weight of the evidence.
R. 197 (Pl.’s Mot. for New Trial at 2) (Page ID #3090). The district court denied the
No. 12-1518 Waldo v. Consumers Energy Company Page 6
motion as to Waldo’s retaliation claim, but granted a new trial on the hostile-work-
environment claim. Waldo v. Consumers Energy Co., No. 1:06-cv-768, 2010 WL
2302305, at *8 (W.D. Mich. June 4, 2010).
A second trial was held on the only remaining claim in 2010, and the jury
rendered a verdict in favor of Waldo, awarding her $400,000 in compensatory damages
and $7,500,000 in punitive damages. See R. 255 (Judgment) (Page ID #4125). The
district court granted Consumers’s motion to remit damages pursuant to a statutory cap,
and lowered the total amount of damages recoverable by Waldo to $300,000. Waldo v.
Consumers Energy Co., No. 1:06-cv-768, 2011 WL 4529375, at *8 (W.D. Mich. Sept.
30, 2011). Consumers filed a renewed motion for judgment as a matter of law pursuant
to Rule 50(b), arguing that Waldo had not presented sufficient evidence to establish an
actionable hostile work environment, and that she had not established a basis for holding
Consumers liable for the harassing conduct of her coworkers. See R. 264 (Def.’s
Renewed Mot. for J. as a Matter of Law at 5–6, 8–9) (Page ID #4245–46, 4248–49).
The district court denied the motion after finding that there was sufficient evidence to
support the verdict. Waldo, 2011 WL 4529375, at *6.
Following the jury verdict in favor of Waldo in the second trial, Waldo filed a
motion for attorney fees and costs under Title VII of the 1964 Civil Rights Act, 42
U.S.C. § 2000(e)(5)(k), and the Civil Rights Attorney’s Fees Awards Act of 1976, 42
U.S.C. § 1988. See R. 259 (Pl.’s Mot. for Att’y Fees) (Page ID #4133). Waldo’s
counsel requested a rate of $400 per hour for lead counsel, Attorney Stephen Drew, and
a rate of $200 per hour for associate counsel, Attorney Adam Sturdivant. See id. at 5
(Page ID #4138). Counsel sought fees for all of the time spent litigating Waldo’s case
on all claims and in both trials, requesting a total of $685,506.25 in attorney fees. Id. at
10 (Page ID #4143). Counsel also sought $38,879.05 for out-of-pocket costs and expert
witness fees, including requests for reimbursement for a mock trial, jury-selection
services, and photocopying. See id. at 9 (Page ID #4142). The district court granted
Waldo’s request for attorney fees and costs in full, except for five hours billed for
Sturdivant’s time for media relations. Waldo v. Consumers Energy Co., No. 1:06-cv-
No. 12-1518 Waldo v. Consumers Energy Company Page 7
768, 2012 WL 1085190, at *3–4, *7 (W.D. Mich. Mar. 30, 2012). Consumers timely
appealed. We have jurisdiction under 28 U.S.C. §§ 1291 and 1331.
II. GRANT OF NEW TRIAL
A. Standard of Review
We review for abuse of discretion a district court’s grant of a motion for a new
trial. See Holmes v. City of Massillon, 78 F.3d 1041, 1045 (6th Cir. 1996). This means
that we will reverse the district court’s decision “only if we have ‘a definite and firm
conviction that the trial court committed a clear error of judgment.’” Armisted v. State
Farm Mut. Auto. Ins. Co., 675 F.3d 989, 995 (6th Cir. 2012) (quoting Mich. First Credit
Union v. Cumis Ins. Soc’y, Inc., 641 F.3d 240, 245–46 (6th Cir. 2011)). A district court
has discretion to grant a motion for a new trial if the court “determines that the verdict
is clearly against the weight of the evidence.” Denhof v. City of Grand Rapids, 494 F.3d
534, 543 (6th Cir. 2007). Nonetheless, “the court is not to set aside the verdict simply
because it believes that another outcome is more justified.” Id.; see Duncan v. Duncan,
377 F.2d 49, 52 (6th Cir. 1967) (explaining that “[c]ourts are not free to reweigh the
evidence and set aside the jury verdict merely because the jury could have drawn
different inferences or conclusions or because judges feel that other results are more
reasonable” (internal quotation marks omitted)). If the verdict “was one which the jury
reasonably could have reached,” then a motion for a new trial should be denied.
Armisted, 675 F.3d at 995. Accordingly, we “will overturn a grant of a motion for a new
trial on the basis that the verdict was against the weight of the evidence where it is clear
that the jury verdict was reasonable.” Denhof, 494 F.3d at 543.
B. Legal Principles
A work environment is actionable under Title VII if the workplace is “permeated
with ‘discriminatory intimidation, ridicule or insult’ sufficiently severe or pervasive to
alter the conditions of employment.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321,
333 (6th Cir. 2008) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65–67
No. 12-1518 Waldo v. Consumers Energy Company Page 8
(1986)). A successful hostile-work-environment claim under Title VII requires a
plaintiff to establish that
(1) she belonged to a protected group, (2) she was subject to unwelcome
harassment, (3) the harassment was based on [sex], (4) the harassment
was sufficiently severe or pervasive to alter the conditions of
employment and create an abusive working environment, and (5) the
defendant knew or should have known about the harassment and failed
to act.2
Williams v. CSX Transp. Co., 643 F.3d 502, 511 (6th Cir. 2011).
“The determination of whether harassing conduct is sufficiently severe or
pervasive to establish a hostile work environment is not susceptible to a mathematically
precise test.” Hawkins, 517 F.3d at 333 (internal quotation marks omitted). Courts must
look at “all the circumstances,” including “the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Under this totality-
of-circumstances test, “the issue is not whether each incident of harassment standing
alone is sufficient to sustain the cause of action in a hostile environment case, but
whether—taken together—the reported incidents make out such a case.” Williams v.
Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999); see also Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81–82 (1998) (“The real social impact of workplace
behavior often depends on a constellation of surrounding circumstances, expectations,
2
The standards for holding an employer liable under Title VII differ depending on whether the
hostile work environment was created by an employee’s coworkers or by a supervisor. See Vance v. Ball
State Univ., 570 U.S. ___, 133 S. Ct. 2434, 2439 (2013). To recover against Consumers, Waldo was
required to demonstrate a basis for employer liability based on either a supervisor’s participation in the
harassment that created the hostile work environment (subject to an affirmative defense), or Consumers’s
negligence in “discovering or remedying harassment by [Waldo’s] coworkers.” Montgomery v. Am.
Airlines, Inc., 626 F.3d 382, 390 (7th Cir. 2010). Although there was evidence at Waldo’s trials relating
to both supervisor and coworker harassment, we will focus on the testimony relating to Consumers’s
liability for the harassment by Waldo’s coworkers, and affirm the district court’s determinations on that
basis. Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999). Accordingly, we need not
address Consumers’s liability for harassment by Waldo’s supervisors. We nonetheless “consider
harassment by all perpetrators combined” when determining the existence of a hostile work environment.
Id.
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and relationships which are not fully captured by a simple recitation of the words used
or the physical acts performed.”).
In a hostile-work-environment claim, the fifth element requires a plaintiff to
demonstrate a basis for holding the employer liable for the harassing conduct of an
employee’s coworkers. The plaintiff must show that the employer’s response to the
plaintiff’s complaints “manifest[ed] indifference or unreasonableness in light of the facts
the employer knew or should have known.” Hawkins, 517 F.3d at 338 (internal
quotation marks omitted); see Jackson v. Quanex Corp., 191 F.3d 647, 659 (6th Cir.
1999) (explaining that the plaintiff must show that the employer “tolerated or condoned
the situation or that the employer knew or should have known of the alleged conduct and
failed to take prompt remedial action” (internal quotation marks omitted)). “Generally,
a response is adequate if it is reasonably calculated to end the harassment.” Jackson,
191 F.3d at 663. Steps that would “establish a base level of reasonably appropriate
corrective action” may include promptly initiating an investigation to determine the
factual basis for the complaint, “speaking with the specific individuals identified by [the
complainant], following up with [the complainant] regarding whether the harassment
was continuing, and reporting the harassment to others in management.” West v. Tyson
Foods, Inc., 374 F. App’x 624, 633 (6th Cir. 2010); see also Collette v. Stein-Mart, Inc.,
126 F. App’x 678, 686 (6th Cir. 2005).
C. Application
On appeal, Consumers argues that a reasonable jury could have found that Waldo
failed to establish the elements of her hostile-work-environment claim because (i) a
reasonable jury could have believed that the alleged harassment was not based on
gender; (ii) a reasonable jury could have concluded that the challenged conduct was not
severe or pervasive; (iii) a reasonable jury could have concluded that there was no basis
to hold Consumers liable; and (iv) the district court erred by considering harassing
behavior that occurred prior to March 12, 2005. We reject each of these arguments for
the reasons that follow and conclude that the district court did not abuse its discretion
in granting a new trial on Waldo’s hostile-work-environment claim.
No. 12-1518 Waldo v. Consumers Energy Company Page 10
First, Consumers argues that a jury reasonably could have believed that Waldo
was not subjected to harassment based on her gender, because some of the complained
of incidents were not sexual, i.e., they did not consist of “physical conduct, touching or
sexual advances.” Appellant Br. at 37. This argument fails, because it construes too
narrowly the types of conduct that can contribute to a work environment permeated with
sexual harassment. We have held that “non-sexual conduct may be illegally sex-based
where it evinces anti-female animus, and therefore could be found to have contributed
significantly to the hostile environment.” Williams, 187 F.3d at 565 (internal quotation
marks omitted). Accordingly, “[a]ny unequal treatment of an employee that would not
occur but for the employee’s gender may, if sufficiently severe or pervasive . . . ,
constitute a hostile environment in violation of Title VII.” Id.
Consumers attempts to isolate specific incidents which, considered apart from
the context in which they occurred, do not appear to contain sexual connotations or
gendered overtones. This approach fails, however, because “[f]acially neutral incidents
may be included” in a hostile-work-environment analysis of the totality of the
circumstances when there is “some circumstantial or other basis for inferring that
incidents sex-neutral on their face were in fact discriminatory.” Alfano v. Costello, 294
F.3d 365, 378 (2d Cir. 2002). Here, the evidence regarding the use of gender-specific
demeaning language, Waldo’s lack of access to a bathroom, the incident involving
Waldo’s use of a purse on the work trucks, the sexually explicit magazines in the work
trucks, and the ostracization of Waldo—the only woman working with her
crews—provide a basis for inferring that even the facially neutral incidents were based
on Waldo’s gender.
Second, based on the totality of evidence presented at trial, it was not an abuse
of discretion for the district court to find that the clear weight of the evidence established
that Waldo was subjected to severe or pervasive harassment sufficient to create a hostile
work environment. Consumers conceded that “Plaintiff’s direct testimony [wa]s replete
with allegations of a hostile work environment” violating Title VII’s prohibitions.
No. 12-1518 Waldo v. Consumers Energy Company Page 11
Rawle 203-2 (Def.’s Br. in Opp. to Pl.’s Mot. for New Trial at 4) (Page ID #3356). Waldo
testified to the following incidents and behaviors, among others:
1. There were sexually explicit magazines, calendars, and playing cards
on the work trucks. See R. 283 (1st Trial Tr. at 225–26) (Page ID
#4956–57).
2. Waldo repeatedly was called derogatory and demeaning names. For
example, she testified that a coworker named Eric yelled at her and
called her a “bitch,” id. at 208 (Page ID #4939), and that coworker
Charlie Jacobs called her a “wench.” Id. at 215 (Page ID #4946).
3. Waldo’s coworkers threw her purse out of a work truck and into the
dirt, telling her that “there were no purses allowed in these trucks.”
Id. at 238 (Page ID #4969). When Waldo carried a smaller purse in
her pocket instead, she was called a “dike.” See id. at 239 (Page ID
#4970).
4. Waldo’s coworkers demeaned her by refusing to allow her to use
work trucks to travel to a bathroom. Instead, they told her: “If I
want to work in a man’s world and I want to work a man’s job, I got
to pee like a man.” Id. at 234 (Page ID #4965).
5. Waldo was locked inside a porta-potty after her coworkers taped it
shut. Id. at 257–59 (Page ID #4988–90).
6. Her coworkers isolated her at work sites by excluding her from lunch
trips, telling her to walk instead of riding with the rest of the all-male
crew. Id. at 237–38 (Page ID #4968–69).
7. When Waldo entered Step IV of the apprentice program in 2005, her
coworkers refused to speak to her or work with her. R. 284 (1st Trial
Tr. at 328–29) (Page ID #5059-60).
Much of the conduct testified to by Waldo either was confirmed by other witnesses,
including defense witnesses, or was not directly controverted by other evidence. For
example, McDonald testified that there were sexually explicit magazines in the work
trucks. R. 288 (1st Trial Tr. at 1085–86) (Page ID #5815–16). McDonald also testified
that he was made aware of the porta-potty incident. Id. at 1053 (Page ID #5783). No
one named Eric testified at trial and no witness refuted Waldo’s allegation that Eric
called her a “bitch.” Similarly, no one named Charlie testified to deny Waldo’s
allegation that Charlie called her a “wench,” and McDonald testified that Charlie had
No. 12-1518 Waldo v. Consumers Energy Company Page 12
been “picking on Theresa” and that the two of them had been swearing at each other.
Id. at 1054 (Page ID #5784). McDonald also acknowledged that he “vaguely”
remembered Waldo complaining about being called sexually offensive names. See R.
287 (1st Trial Tr. at 1006) (Page ID #5736). Cutts testified that in Waldo’s Step IV
class, her male coworkers “didn’t want her there” and refused to work with her. R. 284
(1st Trial Tr. at 405–06) (Page ID #5136–37). One of Waldo’s instructors, Jeffrey
Barnes (“Barnes”), testified that he reprimanded one of Waldo’s coworkers for making
anti-female comments and for refusing to work with her. R. 289 (1st Trial Tr. at
1349–51) (Page ID #6079–81). Jack Huizinga, the union representative, testified that
in March 2003 Waldo complained to him that she was being discriminated against
because she was a woman, including, for example, being called names. R. 290 (1st Trial
Tr. at 1512) (Page ID #6241). Based on the totality of evidence presented to the jury,
the district court did not abuse its discretion in finding that the clear weight of the
evidence demonstrated that Waldo’s working environment at Consumers was filled with
discriminatory intimidation, ridicule, and insult that was sufficient to alter the conditions
of her employment and thus be actionable under Title VII. See Hawkins, 517 F.3d at
333; Waldo, 2010 WL 2302305, at *5.
Third, it was not an abuse of discretion for the district court to find that the clear
weight of the evidence established that Consumers could be held liable for the harassing
behavior of Waldo’s coworkers. Based on the witness testimony, no reasonable jury
could have found that Consumers was not aware of the harassment. Waldo testified that
she brought the harassing behavior to McDonald’s and other supervisors’ attention on
several occasions. See, e.g., R. 283 (1st Trial Tr. at 221–22) (Page ID #4952–53).
McDonald acknowledged that Waldo had complained to him numerous times about the
demeaning name-calling and unfair treatment. R. 287 (1st Trial Tr. at 1006–07) (Page
ID #5736–37). Consumers’s HR representatives similarly testified that they were aware
of Waldo’s complaints regarding the harassment and had spoken with Waldo several
times about her complaints. R. 286 (1st Trial Tr. at 690–92) (Page ID #5420–22); id. at
812 (Page ID #5542). After Waldo filed a grievance with the union, she had a meeting
No. 12-1518 Waldo v. Consumers Energy Company Page 13
in March 2003 with union representatives and HR staff to discuss her complaints about
the working environment. See id. at 811 (Page ID #5541).
Additionally, it was not an abuse of discretion to find that the clear weight of the
evidence demonstrated that Consumers’s response to the complaints of harassment was
inadequate. Consumers’s HR representatives testified that despite being aware of the
allegations of sex harassment, no formal investigation was undertaken. None of Waldo’s
coworkers were interviewed in an effort to determine whether the complaints were valid
or who was responsible for the mistreatment. See id. at 822 (Page ID #5552); id. at 694
(Page ID #5424). McDonald testified that although Waldo complained to him several
times, he did not report several of the specific complaints of gender-based harassment
to anyone in upper management. R. 287 (1st Trial Tr. at 1006–08) (Page ID #5736–38).
It was the clear testimony of the HR witnesses that Consumers was aware of
Waldo’s complaints, but that no formal response or investigation was undertaken; this
was contrary to Consumers’s policies, which promise that “[c]omplaints will be fully
investigated.” R. 327-4 (Joint Trial Ex. 50 at 25, Code of Conduct) (Page ID #8755).
This failure to respond to known complaints demonstrated that Consumers tolerated or
condoned the harassing behavior, or, at the very least, that the company failed to take
appropriate remedial action. See Jackson, 191 F.3d at 663–64 (holding that when the
employer knew about complaints but “made no effort to discover the perpetrators” of
harassment, the employer’s response was not reasonably calculated to end the
harassment); Waldo, 2010 WL 2302305, at *6 (“[Waldo’s] complaints, from a legal
standpoint, warranted a response well beyond that provided by Defendant, which
essentially was an ineffective and unmonitored attempt at employee diversity training
or sporadic reactions.”). Accordingly, it was not an abuse of discretion for the district
court to conclude that the clear weight of the evidence established a basis for holding
Consumers liable for the hostile work environment.
Finally, the district court properly considered evidence regarding the full span
of harassing behavior, even the conduct that occurred prior to March 12, 2005. Title VII
requires that employees file a charge with the EEOC within 300 days of an alleged
No. 12-1518 Waldo v. Consumers Energy Company Page 14
unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1). The Supreme Court has
held that a hostile work environment that violates Title VII “occurs over a series of days
or perhaps years . . . . Such claims are based on the cumulative effect of individual acts.”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). Accordingly,
“[p]rovided that an act contributing to the claim occurs within the filing period, the
entire time period of the hostile environment may be considered by a court for the
purposes of determining liability.” Id. at 117; see Jordan v. City of Cleveland, 464 F.3d
584, 596–97 n.17 (6th Cir. 2006).
It was not an abuse of discretion for the district court to find that the clear weight
of the evidence demonstrated ongoing isolation and an atmosphere of hostility towards
Waldo, and that this atmosphere continued into 2005, when Waldo participated in the
Step IV class. There was testimony from both Waldo and Cutts that Waldo’s coworkers
ignored her and refused to speak with her during her Step IV class in 2005. See R. 284
(1st Trial Tr. at 328) (Page ID #5059); id. at 333 (Page ID #5064); id. at 405–06, 409
(Page ID #5136–37, 5140). Barnes, one of Waldo’s instructors in 2005, further
corroborated this testimony when he stated that he reprimanded one of Waldo’s
coworkers for making comments that he did not want to work with women and that
women were not strong enough to do the job. R. 289 (1st Trial Tr. at 1349–50) (Page
ID #6079–80). Defense witness Joseph Mondrella, another member of Waldo’s Step IV
class, did not have knowledge of whether others made anti-female statements, and he did
not directly dispute the testimony regarding the isolation of Waldo. See R. 289 (1st Trial
Tr. at 1316–21) (Page ID #6046–51). This type of conduct—ignoring and ostracizing
a coworker—if motivated by gender-based animus, can be a form of gender-based
harassment that contributes to a hostile work environment. See Berry v. Delta Airlines,
Inc., 260 F.3d 803, 811 (7th Cir. 2001) (explaining that sex harassment “may include
ridicule, ostracism, and other forms of hostility motivated by anti-female animus”);
O’Rourke v. City of Providence, 235 F.3d 713, 729–30 (1st Cir. 2001) (holding that
“exclusion,” “denial of support,” and coworkers’ “silent treatment” can be considered
as part of a hostile-work-environment claim); Williams, 187 F.3d at 565–66 (holding that
ostracization motivated by gender-based animus can contribute to a hostile work
No. 12-1518 Waldo v. Consumers Energy Company Page 15
environment). Because there was strong evidence that Waldo continued to face hostility
and isolation in April 2005, the district court acted within its discretion by finding that
the clear weight of the evidence demonstrated that at least one incident of harassing
behavior contributing to the hostile environment occurred after March 12, 2005. Thus
all of the relevant harassment could be considered.3
In sum, given the full scope of the evidence presented at the first trial, we hold
that it was not an abuse of discretion for the district court to grant a new trial on Waldo’s
hostile-work-environment claim.
III. DENIAL OF RENEWED MOTION FOR JUDGMENT
AS A MATTER OF LAW
A. Standard of Review
Consumers argues that the district court erred by denying its motion for judgment
as a matter of law following the second trial on Waldo’s hostile-work-environment
claim. We review de novo the decision of a district court on a motion for judgment as
a matter of law, applying the same standard used by the district court. See Parker v.
Gen. Extrusions, Inc., 491 F.3d 596, 602 (6th Cir. 2007). In evaluating a motion for
judgment as a matter of law and deciding whether there was sufficient evidence to
support the jury’s verdict,
“[t]he evidence should not be weighed, and the credibility of the
witnesses should not be questioned. The judgment of this court should
not be substituted for that of the jury; instead, the evidence should be
viewed in the light most favorable to the party against whom the motion
is made, and that party given the benefit of all reasonable inferences.”
Tisdale v. Fed. Express Corp., 415 F.3d 516, 531 (6th Cir. 2005) (quoting Williams v.
Nashville Network, 132 F.3d 1123, 1130–31 (6th Cir. 1997)). A motion for judgment
as a matter of law should be granted only if “there is no genuine issue of material fact
3
Despite Consumers’s argument to the contrary, see Appellant Br. at 45–46, this conclusion
follows even assuming that the jury reasonably could have believed that the April 18, 2005 incident was
not motivated by gender-based animus. Excluding the April 18, 2005 surprise evaluation, there was still
testimony regarding harassment after March 12, 2005, specifically testimony, corroborated by multiple
witnesses, that Waldo continued to be ignored and ostracized in her Step IV class in April 2005.
No. 12-1518 Waldo v. Consumers Energy Company Page 16
for the jury, and reasonable minds could come to but one conclusion in favor of the
moving party.” Barnes v. City of Cincinnati, 401 F.3d 729, 736 (6th Cir. 2005).
B. Analysis
As stated previously, in order to find in favor of Waldo on her hostile-work-
environment claim, the jury had to find, by a preponderance of the evidence, that: “(1)
she belonged to a protected group, (2) she was subject to unwelcome harassment, (3) the
harassment was based on [sex], (4) the harassment was sufficiently severe or pervasive
to alter the conditions of employment and create an abusive working environment, and
(5) the defendant knew or should have known about the harassment and failed to act.”
Williams, 643 F.3d at 511. On appeal, Consumers argues that Waldo failed to present
sufficient evidence of the fourth and fifth elements of her hostile-work-environment
claim. Namely, Consumers contends that Waldo failed to present evidence of severe or
pervasive harassment within 300 days of when she filed her EEOC charge, and that
Waldo did not present evidence that Consumers failed to take appropriate remedial
action in response to Waldo’s complaints of coworker harassment. Upon review of the
record in the second trial, we hold that the district court did not err by denying
Consumers’s motion for judgment as a matter of law: there was sufficient evidence
presented such that a reasonable jury could find in favor of Waldo on her hostile-work-
environment claim.
First, there was ample evidence that Waldo was subjected to severe or pervasive
harassment sufficient to be actionable under Title VII. Waldo testified regarding a wide
range of harassing behaviors that she endured on a regular basis at work, where she was
the first woman to work with the Transmission Department. R. 296 (2nd Trial Tr. at
421) (Page ID #6973). Waldo testified that McDonald told her that there would “never
. . . be women in [the Transmission Department],” and that if she took the job, she would
be “wash[ed] . . . out” of the program. R. 296 (2nd Trial Tr. at 598) (Page ID #7150).
There was also testimony about constant demeaning name-calling, see R. 297 (2nd Trial
Tr. at 611–12) (Page ID #7162–63), the incident when Waldo was locked in a porta-
potty, see id. at 647–51 (Page ID #7198–202), and the presence of sexually explicit
No. 12-1518 Waldo v. Consumers Energy Company Page 17
materials in the trucks of both the Distribution and Transmission crews. See id. at 671,
676 (Page ID #7222, 7227). Waldo repeated her testimony from the first trial regarding
her lack of access to bathrooms at rural job sites, and that her coworkers ridiculed her
for bringing a purse to work. See id. at 641 (Page ID #7192); id. at 617–18 (Page ID
#7168–69). While her male coworkers went with McDonald for an ice cream break on
a hot day, Waldo testified that she was told to stay behind and do extra shoveling, and
that this task was assigned “[j]ust to break [her].” Id. at 619–21 (Page ID #7170–72).
Waldo explained that she was isolated when riding to work sites: her male coworkers
avoided riding with her because if they did, they “would have to take the hazing of
[being told] you were having sex with [Waldo].” Id. at 622–23 (Page ID #7173–74).
Other witnesses corroborated Waldo’s testimony regarding the harassment.
Larry Lyle, an instructor at Consumers, testified that he was told not to help Waldo
during training sessions, and that he had heard McDonald using derogatory language to
refer to women. R. 296 (2nd Trial Tr. at 519–21) (Page ID #7071–73). McDonald
acknowledged that Waldo complained to him regarding the offensive name-calling. R.
295 (2nd Trial Tr. at 389) (Page ID #6941). Huizinga also testified that Waldo had told
him that she was being harassed by her male coworkers. R. 298 (2nd Trial Tr. at 937)
(Page ID #7488). A reasonable jury could have found this testimony credible and could
have found that Waldo’s workplace was “permeated with discriminatory intimidation,
ridicule, and insult . . . that [wa]s sufficiently severe or pervasive to alter the conditions
of [Waldo’s] employment.” Harris, 510 U.S. at 21 (internal quotation marks omitted);
see Williams, 187 F.3d at 559, 562–64 (holding that the combination of “humiliating and
fundamentally offensive” name-calling, offensive remarks directed at women generally,
office “pranks” including “being locked in one’s work area,” being denied breaks, and
being ostracized constituted sufficiently severe and pervasive harassment to be
actionable under Title VII).
Second, Consumers argues that no evidence was presented regarding unlawful
conduct within the 300-day period prior to when Waldo filed her charge with the EEOC,
and that for this reason her hostile-work-environment claim must fail. See Appellant Br.
No. 12-1518 Waldo v. Consumers Energy Company Page 18
at 48. As explained in Part II supra, as long as at least one act contributing to the
hostile-work-environment claim occurred within the filing period, “the entire time period
of the hostile environment may be considered by a court for the purposes of determining
liability.” Morgan, 536 U.S. at 117. Contrary to Consumers’s assertions, there was
evidence presented that Waldo was subjected to harassing behavior after March 12,
2005. Waldo testified that in April 2005, during her Step IV training, her coworkers
refused to work with her and one coworker stated that “women shouldn’t be in this job.”
R. 297 (2nd Trial Tr. at 677–80) (Page ID #7228–31). Cutts confirmed Waldo’s account
when he testified that in the Step IV class in 2005, Waldo’s coworkers ostracized her,
isolated her, and made it clear that they resented her presence. R. 294 (2nd Trial Tr. at
146–47) (Page ID #6697–98). A reasonable jury could have inferred that this isolation
and ostracization was motivated by gender-based animus and thus contributed to the
hostile work environment. See Berry, 260 F.3d at 811; Williams, 187 F.3d at 565–66.
Additionally, a reasonable jury could have found credible Waldo and Cutts’s testimony
that the unexpected evaluation on April 18, 2005, was motivated by gender-based
animus. See R. 294 (2nd Trial Tr. at 154–56) (Page ID #6705–07) (indicating that Cutts
perceived the evaluation as intended “to X [Waldo] out of the program”); R. 297 (2nd
Trial Tr. at 683–89) (Page ID #7234–40). From this evidence, a jury reasonably could
have believed that harassing acts contributing to the hostile work environment occurred
after March 12, 2005.
Third, on the evidence presented, a reasonable jury could have found that there
was a basis for holding Consumers liable for the harassing conduct of Waldo’s
coworkers. As in the first trial, McDonald testified that Waldo complained to him
several times about harassment, including derogatory name-calling and the porta-potty
incident. See R. 295 (2nd Trial Tr. at 389–97) (Page ID #6941–49); R. 296 (2nd Trial
Tr. at 498) (Page ID #7050). However, no formal action was taken, i.e., McDonald did
not create a written record of the complaints or formally reprimand any of Waldo’s
coworkers. R. 295 (2nd Trial Tr. at 389–97) (Page ID #6941–49). Additionally, HR
representatives Bolden and Eckert testified that they were aware of Waldo’s complaints
about gender-based harassment, but that no formal investigations or interviews were
No. 12-1518 Waldo v. Consumers Energy Company Page 19
undertaken. See id. at 214–17 (Page ID #6766–69); id. at 298–300 (Page ID #6850–52);
R. 294 (2nd Trial Tr. at 115) (Page ID #6666); R. 298 (2nd Trial Tr. at 967) (Page ID
#7518). Although a response plan was formulated that involved a one-day diversity
training session, the plan’s contemplated action of long-term monitoring and follow-up
was never implemented. See R. 295 (2nd Trial Tr. at 308–10) (Page ID #6860–62).
From this testimony, a reasonable jury could have found that Consumers knew about the
harassing behavior but failed to take reasonable remedial steps. See Williams, 643 F.3d
at 511. Accordingly, it was reasonable for the jury to find that Consumers manifested
indifference towards the harassment, and thus could be held liable under Title VII. See
Jackson, 191 F.3d at 659.
In sum, a reasonable jury could have found that Waldo met her burden of proof
to show that she was subjected to severe or pervasive sexual harassment creating a
hostile work environment and that Consumers could be held liable for the hostile
environment. As a result, the district court did not err by denying Consumers’s motion
for judgment as a matter of law.
IV. ATTORNEY FEES AND COSTS
A. Standard of Review
We review for abuse of discretion the district court’s award of attorney fees and
costs to a prevailing party under 42 U.S.C. § 1988. Dubay v. Wells, 506 F.3d 422, 431
(6th Cir. 2007). “‘Abuse of discretion is defined as a definite and firm conviction that
the trial court committed a clear error of judgment.’” Revis v. Meldrum, 489 F.3d 273,
280 (6th Cir. 2007) (quoting Berger v. City of Mayfield Heights, 265 F.3d 399, 402 (6th
Cir. 2001)); see also DiLaura v. Twp. of Ann Arbor, 471 F.3d 666, 671 (6th Cir. 2006)
(“Abuse of discretion exists only when a district court relies upon clearly erroneous
factual findings, applies the law improperly, or uses an erroneous legal standard.”
(internal quotation marks omitted)). Further, “[i]n light of a district court’s superior
understanding of the litigation and the desirability of avoiding frequent appellate review
of what essentially are factual matters, an award of attorneys’ fees under § 1988 is
No. 12-1518 Waldo v. Consumers Energy Company Page 20
entitled to substantial deference.” Wilson-Simmons v. Lake Cnty. Sheriff’s Dep’t, 207
F.3d 818, 823 (6th Cir. 2000) (internal quotation marks omitted).
In this case, Consumers challenges the district court’s determination of a
reasonable hourly rate for lead counsel, the court’s failure to reduce the fee award in
light of the fact that Waldo succeeded on only some of her claims, the court’s
determination that Waldo was entitled to attorney fees in connection with her first trial,
and the court’s determination that Waldo was entitled to all of the costs she requested.
We address each of these arguments in turn.
B. Hourly Rate for Attorney Drew
Consumers argues that the district court abused its discretion in finding that $400
per hour was a reasonable rate for Attorney Drew. See Appellant Br. at 56. When
making a determination of a reasonable attorney fee, a district court begins by
determining “the fee applicant’s ‘lodestar,’ which is the proven number of hours
reasonably expended on the case by an attorney, multiplied by his court-ascertained
reasonable hourly rate.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir.
2000). We have explained that “[a] district court has broad discretion to determine what
constitutes a reasonable hourly rate for an attorney.” Wayne v. Vill. of Sebring, 36 F.3d
517, 533 (6th Cir. 1994). “A trial court, in calculating the ‘reasonable hourly rate’
component of the lodestar computation, should initially assess the ‘prevailing market
rate in the relevant community.’” Adcock-Ladd, 227 F.3d at 350 (quoting Blum v.
Stenson, 465 U.S. 886, 895 (1984)). The prevailing market rate is “that rate which
lawyers of comparable skill and experience can reasonably expect to command within
the venue of the court of record.” Id. A district court is permitted to “rely on a party’s
submissions, awards in analogous cases, state bar association guidelines, and its own
knowledge and experience in handling similar fee requests.” Van Horn v. Nationwide
Prop. & Cas. Ins. Co., 436 F. App’x 496, 499 (6th Cir. 2011); see Dowling v. Litton
Loan Servicing LP, 320 F. App’x 442, 447 (6th Cir. 2009) (affirming a district court’s
calculation of a reasonable hourly rate based on the court’s “knowledge of local billing
practices” and counsel’s customary billing rates).
No. 12-1518 Waldo v. Consumers Energy Company Page 21
Here, the district court provided “a concise but clear explanation of its reasons
for the fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The district court
found that lead counsel “is a highly respected, experienced and accomplished
practitioner in civil rights and employment litigation, and without question, exceptional
in his background and skills.” Waldo, 2012 WL 1085190, at *4. The district court
permissibly considered fee awards in other cases in the Western District of Michigan,
the rates for experienced attorneys in the Grand Rapids area as reflected in the State Bar
of Michigan 2010 Survey, and the court’s “familiarity with the market rates for legal
services in th[e] community.” Id. at *3–4; see R. 317-8 (Br. in Opp. to Pl.’s Mot. for
Att’y Fees and Costs, Ex. 8, at 7) (Page ID #8569) (stating that hourly billing rates in
Grand Rapids were as high as $420 per hour in 2010). The court accordingly approved
lead counsel’s requested hourly rate of $400. Waldo, 2012 WL 1085190, at *3.
Although the reasonable hourly rate determined by the district court is on the high end,
we find no abuse of discretion in the court’s finding that the rate of $400 per hour was
“justified and reasonable based on the rate that lawyers of comparable skill and
experience could reasonably expect to command within this venue.” Id. at *3; see
Glover v. Johnson, 934 F.2d 703, 716 (6th Cir. 1991) (holding that there was no abuse
of discretion when a district court awarded an hourly rate higher than the median rate,
when the district court “found that counsels’ qualifications, experience, and skill” in the
relevant practice area merited a higher rate). The district court considered appropriate
factors in its analysis, and its determination of a reasonable hourly rate is not outside the
range of reported rates for highly experienced attorneys in the area. Thus, we conclude
that the district court’s determination of the reasonable hourly rate for lead counsel was
within its discretion.
C. Reduction in Fees
Consumers next argues that Waldo’s fee award should have been reduced based
on her partial success, because she succeeded on only one of the seven claims asserted
in her complaint. See Appellant Br. at 49–50. We are not persuaded that the district
court abused its discretion in declining to reduce the fee award. The Supreme Court has
No. 12-1518 Waldo v. Consumers Energy Company Page 22
instructed that “the most critical factor” governing the reasonableness of a fee award “is
the degree of success obtained.” Hensley, 461 U.S. at 436. In cases when “a plaintiff
has obtained excellent results, his attorney should recover a fully compensatory fee.”
Id. at 435. Accordingly, we have explained that “a reduction in attorney fees [awarded
to a prevailing plaintiff] is to be applied only in rare and exceptional cases where
specific evidence in the record requires it.” Isabel v City of Memphis, 404 F.3d 404, 416
(6th Cir. 2005). Specifically, a court should not measure a plaintiff’s success simply by
using a ratio of successful claims to claims raised. See Deja Vu of Nashville, Inc. v.
Metro. Gov’t of Nashville & Davidson Cnty., 421 F.3d 417, 423 (6th Cir. 2005). Indeed,
“[w]e have ‘repeatedly rejected mechanical reductions in fees based on the number of
issues on which a plaintiff has prevailed.’” Imwalle v. Reliance Med. Prods., Inc., 515
F.3d 531, 554 (6th Cir. 2008) (quoting Deja Vu, 421 F.3d at 423). Instead, “[w]hen
claims are based on a common core of facts or are based on related legal theories, for the
purpose of calculating attorney fees they should not be treated as distinct claims, and the
cost of litigating the related claims should not be reduced.” Deja Vu, 421 F.3d at 423
(internal quotation marks omitted). This is because when several claims arise from a
common core of facts, “[m]uch of counsel’s time will be devoted generally to the
litigation as a whole, making it difficult to divide the hours expended on a claim-by-
claim basis. Such a lawsuit cannot be viewed as a series of discrete claims.” Hensley,
461 U.S. at 435.
In this case, the district court did not abuse its discretion in finding that all of
Waldo’s claims were related and involved a common core of facts. See Waldo, 2012
WL 1085190, at *5. We agree with the district court that all of Waldo’s claims focused
on the same series of incidents demonstrating the ways in which her coworkers subjected
her to sexual harassment. The district court found that the evidence gathered through
the twenty-five depositions taken in the case as well as “extensive written discovery . . . .
related to all three claims of sexual harassment/hostile work environment,
discrimination, and retaliation.” Id. at *5. The district court further explained:
Although Plaintiff did not prevail on her discrimination and retaliation
claims, the Court cannot emphasize enough that Plaintiff’s successful
No. 12-1518 Waldo v. Consumers Energy Company Page 23
sexual harassment/hostile work environment claim shared a common
core of facts with all the asserted claims from the beginning to the
conclusion of this case. The discrimination, hostile work environment,
and retaliation claims presented in this case were closely intertwined;
they involved essentially the same underlying facts and evidence; and all
pertained to Plaintiff’s ultimate claim concerning a hostile work
environment, which was the basis for the damages awarded.
Id.
We agree that all of the evidence presented concerning the discriminatory
treatment of Waldo in the workplace, as well as evidence of retaliation for Waldo’s
complaints of harassment, related to the hostility Waldo faced at Consumers because of
her gender. We previously have concluded that harassment, discrimination, and hostile-
work-environment claims are related for purposes of attorney fees, and have reversed as
an abuse of discretion a district court’s reduction of fees based on a plaintiff’s success
on only some of several interrelated Title VII claims. See Jordan, 464 F.3d at 603–04.
In Jordan, because there was a “significant legal overlap” between claims of racial
discrimination, harassment, and retaliation, we held that under Hensley the plaintiff was
entitled to “a full recovery for counsel’s services, rather than a percentage reduction,”
even though he succeeded on only some of his claims. See id. We explained the reason
why a full recovery was warranted as follows:
[L]itigation is not an ‘exact science’: Lawyers cannot preordain which
claims will carry the day and which will be treated less favorably. Good
lawyering as well as ethical compliance often requires lawyers to plead
in the alternative. Fee awards comport with that reality by giving full
credit to a meaningfully successful plaintiff, rather than making a
mechanical per-losing-claim deduction from an attorney’s fee award.
Id. at 604 (citations omitted).4 Accordingly, we have repeatedly upheld a district court’s
refusal to reduce an attorney fee award when a plaintiff prevails on only some of his or
4
In our view, unlike that of the dissent, Waldo was just as much a “meaningfully successful
plaintiff” as was Jordan. Jordan, 464 F.3d at 604. Waldo, like Jordan, succeeded on a significant issue
in her litigation, and she achieved substantial overall relief—a $7.9 million jury verdict, later reduced to
the statutory cap of $300,000. Because all of the employment-discrimination claims in their respective
cases arose out of a common core of facts, their lawsuits “cannot be viewed as . . . series of discrete
claims.” Hensley, 461 U.S. at 435. Accordingly, a fully compensatory attorney fee was within the district
court’s discretion to award.
No. 12-1518 Waldo v. Consumers Energy Company Page 24
her related anti-discrimination causes of action, and our sister circuits have done the
same. See, e.g., Imwalle, 515 F.3d at 554–56 (upholding full attorney fee award when
plaintiff succeeded on only three of nine claims); Isabel, 404 F.3d at 416 (rejecting
argument that fee award should be reduced because plaintiffs lost three out of their four
claims); Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1169–70 (6th Cir. 1996);
see also Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1111 (10th Cir. 1998);
Dunning v. Simmons Airlines, Inc., 62 F.3d 863, 873–74 (7th Cir. 1995).
Further, a full recovery was permissible because Waldo “obtained excellent
results.” Hensley, 461 U.S. at 435. She sought damages and received $300,000, the
maximum award possible under Title VII (the jury thought she deserved $7,900,000).5
See 42 U.S.C. § 1981a(b)(3)(D); R. 255 (Judgment) (Page ID #4125). Waldo succeeded
on a significant and central issue in the litigation, namely that she was subjected to a
hostile work environment at Consumers because of her gender. She thus succeeded in
“remedying a civil rights violation” and “serv[ed] as a private attorney general,
vindicating a policy that Congress considered of the highest priority.” Fox v. Vice, 131
S. Ct. 2205, 2213 (2011) (internal quotation marks omitted). The district court acted
within its discretion in finding that Waldo’s attorneys should receive a fully
compensatory fee for this excellent result. See id. (“Fee shifting in [a successful civil
rights] case at once reimburses a plaintiff for what it cost him to vindicate civil rights,
and holds to account a violator of federal law.” (internal quotation marks, citations, and
5
Although the dissent insinuates that the attorney fee award was unreasonable because it was
slightly more than twice as much as the damages award to Waldo, see Dissent at 30, 32, “[i]n the civil
rights area, there is no requirement that the amount of an award of attorneys’ fees be proportional to the
amount of the underlying award of damages.” Bldg. Serv. Local 47 Cleaning Contractors Pension Plan
v. Grandview Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995); see City of Riverside v. Rivera, 477 U.S. 561,
574 (1986) (plurality op.). In City of Riverside, the Supreme Court upheld an attorney fee award that was
more than seven times greater than the damages awarded to plaintiffs. We similarly have affirmed an
attorney fee award that was more than five times the damages awarded to a plaintiff in a civil rights case,
stating that “the value of the rights vindicated goes beyond the actual monetary award, and the amount of
the actual award is not controlling.” McHenry v. Chadwick, 896 F.2d 184, 189 (6th Cir. 1990). As the
Supreme Court explained in City of Riverside: “Congress enacted § 1988 specifically because it found that
the private market for legal services failed to provide many victims of civil rights violations with effective
access to the judicial process. . . . In order to ensure that lawyers would be willing to represent persons
with legitimate civil rights grievances, Congress determined that it would be necessary to compensate
lawyers for all time reasonably expended on a case.” 477 U.S. at 576, 578. Notwithstanding the dissent’s
apparent displeasure with Congress’s chosen policy, our precedents establish that an attorney fee award
in a civil rights case is not unreasonable merely because it is greater than the damages awarded to the
plaintiff.
No. 12-1518 Waldo v. Consumers Energy Company Page 25
alterations omitted)). Accordingly, the district court’s refusal to reduce the fee award
because Waldo succeeded on only one of her claims was permissible.
We are not persuaded by the dissent’s contention that it was an abuse of
discretion for the district court to refuse to reduce Waldo’s fee award because the jury
found in her favor on only the hostile-work-environment claim. The dissent’s emphasis
and reemphasis on the fraction of claims in Waldo’s complaint on which her damages
award was based—the dissent’s spin on Waldo’s success as “los[ing] the first jury trial”
and “los[ing] six of the seven claims,” Dissent at 30 (emphasis in original)—runs
contrary to our clear precedents holding that a fee award may not be reduced based on
a ratio of claims brought to claims won. As we held in DiLaura when we reversed a
district court’s reduction in attorney fees, “[b]y focusing on the fact that most of the
plaintiffs’ claims failed . . . [a court] does what Hensley specifically forbids: it analyzes
a series of related legal claims based on a common core of facts, and determines the
amount of fees, not based on the plaintiffs’ overall success, but based on the success or
failure of the individual claims.” DiLaura, 471 F.3d at 673. The dissent’s argument that
Waldo was only minimally successful ignores the reality that Waldo’s attorneys
achieved an excellent result for their client. Waldo’s complaint sought “all appropriate
damages” arising out of the unlawful employment practices at Consumers, see R. 1
(Compl. ¶ 65) (Page ID #17), and the jury awarded Waldo $7,900,000 (later remitted to
$300,000 pursuant to a statutory cap). Given this excellent result, a fully compensatory
attorney fee award was appropriate. See Hensley, 461 U.S. at 435 (holding that when
“a plaintiff has obtained excellent results, . . . . the fee award should not be reduced
simply because the plaintiff failed to prevail on every contention raised in the lawsuit”);
Isabel, 404 F.3d at 416 (“A proffer of alternative arguments does not justify reducing an
award, especially where the arguments were made on a common set of facts and success
on just one of the arguments would achieve the hoped-for results.”).
Additionally, we reject the dissent’s assertion that the work done litigating this
case would have been cleanly divisible between the claims. The legal standards
governing Waldo’s Title VII claims and her corresponding state-law claims under the
No. 12-1518 Waldo v. Consumers Energy Company Page 26
Elliott-Larsen Civil Rights Act (ELCRA) are nearly identical. See Wasek v. Arrow
Energy Servs., Inc., 682 F.3d 463, 468 (6th Cir. 2012) (hostile work environment); id.
at 472 (retaliation); Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 652–53 (6th
Cir. 2012) (discrimination). Accordingly, it would be “difficult to divide the hours
expended on a claim-by-claim basis” as between the federal and state-law claims.
Hensley, 461 U.S. at 435. Further, “[t]his court has in fact held that discrimination and
retaliation claims are related for the purpose of awarding attorney fees.” Imwalle, 515
F.3d at 555. Here, as in Imwalle, “there [wa]s a significant overlap in the legal theories”
underlying Waldo’s discrimination, retaliation, and hostile-work-environment claims.
Id. The Supreme Court in Hensley held that “[l]itigants in good faith may raise
alternative legal grounds for a desired outcome, and the court’s rejection of or failure to
reach certain grounds is not a sufficient reason for reducing a fee.” Hensley, 461 U.S.
at 435.6 As we have explained, we have routinely concluded that these types of claims
are interrelated, and have affirmed district courts’ decisions to compensate successful
plaintiffs for work done on all of the claims, even when only some are ultimately
successful.
Contrary to Consumers’s contention, see Appellant Br. at 51, it also was not an
abuse of discretion for the district court to award Waldo fees relating to the first trial.
“[T]he question of whether a party ‘prevailed’ and whether a fee award is ‘reasonable’
is not one to parse too thinly . . . [based on] the number of trials required to reach a
result.” Abner v. Kan. City S. Ry. Co., 541 F.3d 372, 382 (5th Cir. 2008). Accordingly,
“so long as a plaintiff’s actions are not responsible for the need for a second trial, the
plaintiff may be compensated for time spent on both proceedings.” Shott v. Rush-
6
The dissent’s citation to Hensley as a “spot-on comparison” in this regard is also off the mark.
The Hensley Court explained that if a plaintiff challenged several factually unrelated institutional practices
and conditions—for example, the physical environment of buildings in a state hospital, the hospital’s
visitation, telephone and mail policies, and its alleged policy of giving patients excessive medication, see
461 U.S. at 427 n.1—success on only one of those claims would not warrant recovery of attorney fees for
time spent litigating all of the claims. Id. at 436. This was not the situation presented by the instant case.
Waldo challenged a single, factually unified unlawful employment practice at Consumers: its
discriminatory treatment and harassment of female employees. Although Waldo sought relief through
several “alternative legal grounds,” all of those grounds arose out of a “common core of facts.” Id. at 435.
Accordingly, Waldo’s fee award should not be reduced because Waldo’s success was based on only one
of those “related legal theories.” Id.
No. 12-1518 Waldo v. Consumers Energy Company Page 27
Presbyterian-St. Luke’s Med. Ctr., 338 F.3d 736, 740 (7th Cir. 2003).7 The First,
Second, Fifth, Seventh, and Tenth Circuits have all permitted attorney fees to be
awarded for multiple trials, so long as “the plaintiff’s unreasonable behavior did not
cause” the need for multiple proceedings and as long as counsel’s time was reasonably
expended. Abner, 541 F.3d at 381–82; see Flitton v. Primary Residential Mortg., Inc.,
614 F.3d 1173, 1177 (10th Cir. 2010); O’Rourke, 235 F.3d at 737; Gierlinger v.
Gleason, 160 F.3d 858, 877–78 (2d Cir. 1998); Jaffee v. Redmond, 142 F.3d 409, 416
(7th Cir. 1998). Here, the hours spent litigating the first trial were reasonably expended
to achieve a positive result for Waldo, and the need for a second trial was not created by
any unreasonable missteps by Waldo or her attorneys. Accordingly, the district court
could, in its discretion, award fees for the first trial.
The dissent attempts to distinguish these cases, arguing that Waldo should be
denied fees for the first trial because her counsel was to blame for the granting of the
new trial. See Dissent at 31. We cannot agree that Waldo’s counsel behaved
unreasonably or made mistakes that created the need for a second trial. Faulting
Waldo’s counsel in these circumstances reflects a misunderstanding of the nature of a
Rule 59 motion. A Rule 59 motion is not, as the dissent suggests, a means of achieving
a “do-over” in the case of poor performance by counsel. Instead, it preserves the trial
judge’s authority to prevent a jury verdict from standing when, in the district court’s
view, the jury’s verdict was against the clear weight of the evidence and a new trial is
necessary to “prevent a miscarriage of justice.” Holmes, 78 F.3d at 1047. Rule 59 thus
preserves the trial judge’s power to “provide[] substantial protection against th[e] risk”
that “jury prejudice may deprive a victim of discrimination of the verdict to which he or
she is entitled.” Curtis v. Loether, 415 U.S. 189, 198 (1974). The dissent joins our view
of the evidence in the first trial and agrees that it was not an abuse of discretion for the
district court to find that the first jury’s verdict was against the clear weight of the
7
The dissent points out that the Seventh Circuit in Shott rejected the claim for fees for multiple
trials. It fails to mention, however, that the reason the claim for fees was rejected there was that the
plaintiff’s counsel was responsible for the need for multiple trials—a circumstance not present in this case,
as explained infra. See Shott, 338 F.3d at 741.
No. 12-1518 Waldo v. Consumers Energy Company Page 28
evidence. See Denhof, 494 F.3d at 543. The dissent’s contention that Waldo’s counsel
should be penalized for marshaling such a strong case on behalf of Waldo is baffling.
D. Award for Costs
Consumers asserts that the district court erred by awarding Waldo all of her
requested costs, arguing that costs for focus groups, mock trials, jury-selection services,
and mediation are non-recoverable, and that Waldo did not provide sufficient
documentation regarding the reasonableness of the costs requested. See Appellant Br.
at 60. Like an award of attorney fees, a district court’s award of costs under § 1988 is
reviewed for an abuse of discretion. NE Ohio Coal. for the Homeless v. Sec’y of State,
695 F.3d 563, 569 (6th Cir. 2012). “The award of statutory costs is a matter for the
district court, in its best judgment as to what was reasonable and necessary, and the
appellate courts will not normally interfere with the exercise of that discretion.” Sigley
v. Kuhn, 205 F.3d 1341, 2000 WL 145187, at *8 (6th Cir. 2000).
Section 1988 permits district courts to award those “‘incidental and necessary
expenses incurred in furnishing effective and competent representation’” as part of the
award of attorney fees. Id. at *9 (quoting Northcross v. Bd. of Educ. of Memphis City
Sch., 611 F.2d 624, 639 (6th Cir. 1979)). Recoverable out-of-pocket expenses are those
“incurred by the attorney which are normally charged to a fee-paying client, in the
course of providing legal services,” such as “[r]easonable photocopying, paralegal
expenses, and travel and telephone costs.” Northcross, 611 F.2d at 639. Here, the
district court acted within its discretion in finding that Waldo’s requested costs for focus
groups, mock trials, jury-selection services, and mediation were reasonable and
necessary to provide Waldo with effective representation, because such services
“conferred a benefit to the prevailing party by helping to produce a favorable result.”
See Sigley, 2000 WL 145187, at *9. The photocopying and telephone expenses also
were awarded reasonably in the district court’s discretion. Accordingly, we affirm the
district court’s award of costs to Waldo.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
No. 12-1518 Waldo v. Consumers Energy Company Page 30
_______________________________________________
CONCURRING IN PART, DISSENTING IN PART
_______________________________________________
SUTTON, Circuit Judge, concurring in part and dissenting in part. I join all
sections of the majority’s opinion save one: its decision to uphold the district court’s
award of $684,506 in attorney’s fees—all but $1,000 of the fees requested by Waldo’s
attorney without any additional reduction for time or rate, including for all work incurred
to lose the first jury trial, all work incurred to lose six of the seven claims (four of them
state law claims) and for all work incurred to win $300,000 in the second jury trial. One
can be forgiven for thinking that Waldo’s two attorneys, not Waldo, were the true
winners. This is good work if you can get it.
Title VII grants courts “discretion” to award “prevailing” parties “a reasonable
attorney’s fee.” 42 U.S.C. § 2000e-5(k). “Abuse of discretion” is a phrase of many
meanings, and many of them—in isolation—give the district court’s decision the air of
plausibility. A district court has a front-row seat at the trial (or, I should say, trials), and
accordingly an appellate court distant in time and place should not lightly second guess
its assessments of a reasonable fee. Unduly rigorous appellate review of fee awards
creates the risk of satellite litigation that leads to more satellite litigation over matters
that have nothing to do with the underlying cause of action. Trial court discretion
includes in appropriate cases the right to award fees for work done on interrelated causes
of action, even when the claimant loses some (even perhaps six of seven) of the
interrelated claims and even when four of the seven claims arise under state law. And
in some cases it may even be appropriate to grant fees for losing a trial in all respects if
the claimant manages to win the same claim in a second trial.
But the acceptance of these points in the aggregate here gives trial court
discretion a bad name. I know of no case in which an appellate court upheld all fees for
the first (losing) trial when the only reason for the second trial was the trial court’s
granting of a new trial under Civil Rule 59(a)(1)(A), which is to say that the verdict was
merely against the weight of the evidence, which is to say that the evidence would have
No. 12-1518 Waldo v. Consumers Energy Company Page 31
permitted a defense verdict to stand. See White v. Pence, 961 F.2d 776, 780 (8th Cir.
1992). There was nothing unfair about the first trial. Defense counsel did nothing
wrong. The trial court did nothing wrong. And the jury did nothing wrong, as the
evidence would have permitted a defense verdict to stand. All that happened was that
the trial judge disagreed with the jury. If anyone did anything wrong, it was plaintiff’s
counsel in failing to convince the jury to rule his way in the initial trial. No reduction,
any reduction, for all of the work on the first trial? That is a heavy lift. Where,
moreover, would this end? Would a second lost jury verdict and a second successful
Civil Rule 59 motion for a second do-over permit fees as well? Some reduction was in
order.
The majority’s citations hold nothing to the contrary. The lead case, Shott v.
Rush-Presbyterian-St. Luke’s Medical Center, 338 F.3d 736, 741–42 (7th Cir. 2003),
rejected the claim for fees. While the other cases upheld fee awards, they did so in
distant and distinct settings. See Flitton v. Primary Residential Mortg., Inc., 614 F.3d
1173, 1177 (10th Cir. 2010) (upholding fee award for three “interrelated” Title VII
claims—compensatory damages for retaliation, compensatory damages for
discrimination and punitive damages for retaliation—when plaintiff won part of the first
trial and part of the second trial); Abner v. Kansas City S. Ry. Co., 541 F.3d 372, 384
(5th Cir. 2008) (awarding fees for first trial in which “[t]he jury simply could not reach
a verdict”); O’Rourke v. City of Providence, 235 F.3d 713, 737 (1st Cir. 2001) (awarding
fees for first trial where plaintiff won at trial, only to have judgment in that trial
erroneously vacated by the district court and reinstated by the court of appeals);
Gierlinger v. Gleason, 160 F.3d 858, 877–78 (2d Cir. 1998) (awarding fees incurred
during a prior trial that ended in a mistrial, where the mistrial was primarily due to the
court’s error—not the plaintiff’s). None of these cases involve what we have
here—winning all fees by losing all claims in an error-free jury trial on the merits.
Two of the majority’s citations offer more of the same and indeed cut against its
conclusion and reasoning. In Jordan v. City of Cleveland, unlike in this case, the
plaintiff “prevailed on a substantial number of claims that he pursued.” 464 F.3d 584,
604 (6th Cir. 2006). More significantly, the presentation of the unsuccessful claims
No. 12-1518 Waldo v. Consumers Energy Company Page 32
(discrimination and harassment) was necessary for a complete presentation of the
successful one (retaliation for complaining about the same discrimination and
harassment). Here we have the opposite situation: It was the harassment claim that
succeeded, making it independent of, not dependent on, the retaliation claim. Nor, as
the majority suggests, does City of Riverside v. Rivera, 477 U.S. 561 (1986), establish
that the amount of damages awarded in a case has no bearing on the proper size of a fee
award. Maj. Op. at 24 n.4. It rejects only the idea that § 1988 fees “should necessarily
be proportionate to the amount of damages,” id. at 574 (emphasis added), obviously true
in view of the possibility of claims for injunctive relief or nominal damages. But City
of Riverside acknowledges and supports the equally obvious proposition pertinent to and
ignored in this case—that in the normal course the amount of damages is “certainly
relevant” to the size of a proper fee award and is “one of many factors that a court should
consider.” Id. at 574. Just so here—and nowhere accounted for in the district court’s
decision. Nor does it seem likely that the same Congress that capped compensatory
damages at $300,000 and prohibited punitive damages for this merits claim would have
been cheerfully indifferent to runaway, if not punitive, fee awards that bear no relation
to this damages award.
In the aggregate, the district court lost sight of the reality that the
“reasonable[ness]” of a fee award turns in part on the level of a plaintiff’s success—the
extent to which he “prevail[ed].” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). If “a
plaintiff has achieved only partial or limited success, the product of hours reasonably
expended on the litigation as a whole times a reasonable hourly rate may be an excessive
amount.” Id. at 436. That is true even in cases “where the plaintiff’s claims were
interrelated, nonfrivolous, and raised in good faith.” Id. And that makes sense in view
of the Court’s directive to award “only that amount of fees that is reasonable in relation
to the results obtained.” Id. at 440; see also Imwalle v. Reliance Med. Prods., Inc., 515
F.3d 531, 552 (6th Cir. 2008) (explaining that courts should consider “whether the
plaintiff achieved a sufficient degree of success to render the hours reasonably expended
a satisfactory basis for awarding attorney fees”).
No. 12-1518 Waldo v. Consumers Energy Company Page 33
Hensley itself offers a spot-on comparison. The Court indicated that a fee award
nearly identical to this one—an award for the time spent on six claims when the plaintiff
won just one—“clearly would have been excessive.” 461 U.S. at 436. Yes, indeed. Nor
was today’s case one in which it was difficult to make a rough cut between the fees for
the successful federal claim and the fees for the unsuccessful federal and state law
claims. When it is not “difficult to divide the hours expended on a claim-by-claim
basis,” id. at 435, a district court should do so. The district court judge herself showed
this was just such a case by ordering a new trial on Waldo’s harassment claim but not
her retaliation claim. The two claims are distinguishable in the abstract, and the district
court showed they were distinguishable in the here and now. Even Waldo’s counsel at
trial argued for the exclusion of certain evidence based on the differences between the
legal claims, and her counsel must have understood the distinction between the federal
and state law claims when she withdrew all of the state claims, one before the first trial
and the remaining three before the jury deliberations in the first trial.
I am prepared to hold my nose in upholding a lot of fee awards, whether they
seem too small or too large at the time. But a blanket fee award of $684,506 for losing
six of seven claims, including for all of the work in losing the first jury trial, is not one
of them.