Farfaras, Jennifer v. Citizens Bank Trust

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2082 & 05-2368
JENNIFER FARFARAS,
Plaintiff-Appellee,
v.
CITIZENS BANK AND TRUST OF CHICAGO,
a corporation, ROBERT MICHAEL,
GEORGE MICHAEL, and NICHOLAS TANGLIS,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 8720—Harry D. Leinenweber, Judge.
____________
ARGUED NOVEMBER 10, 2005—DECIDED JANUARY 11, 2006
____________
Before FLAUM, Chief Judge, and RIPPLE and SYKES,
Circuit Judges.
FLAUM, Chief Judge. A jury awarded the plaintiff,
Jennifer Farfaras, a judgment of $200,000 in compensa-
tory damages and $100,000 in punitive damages against the
individual defendants, Robert Michael, George Michael, and
Nicholas Tanglis. The jury also awarded Farfaras a
$200,000 judgment against Citizens Bank and Trust of
Chicago, however, pursuant to 42 U.S.C. § 1981a(b)(3)(A),
the district court reduced this latter award to $50,000.
2 Nos. 05-2082 & 05-2368
In addition, the district court awarded Farfaras $436,766.75
in attorneys’ fees and costs, plus $9,314.48 in lost wages.
The defendants now appeal. They request a new trial,
claiming that unduly prejudicial evidence was admitted
at trial. They also request a new trial or remittitur to
reduce the damages awarded. Finally, the defendants
advocate reduction of the attorneys’ fees awarded.
For the following reasons, we now affirm the judgment of
the district court.
I. Background
The plaintiff-appellee, Jennifer Farfaras, filed the original
claim in this case against Citizens Bank and Trust of
Chicago (“Bank”), Michael Realty, Robert Mi-
chael (“Robert”), George Michael (“George”), and Nicholas
Tanglis (“Tanglis”) under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Farfaras also
sued for pendent common law claims of battery, intentional
infliction of emotional distress (“IIED”), and assault. The
district court granted summary judgment, dismissing all
claims against Michael Realty and the Title VII claims
against the individual defendants.
This case proceeded to trial on Counts I (battery), II
(IIED), and III (assault) against each individual defendant,
and on Count IV (sex discrimination) and Count V (sexual
harassment) against the Bank. The jury found in Farfaras’s
favor on Counts I, II, III, and IV, but returned a verdict in
favor of the Bank on Count V. On March 21, 2005, the
district court denied the defendants’ post-trial motions to
set aside the verdict and to prevent the recovery of attor-
neys’ fees. On April 15, 2005, the district court granted
attorneys’ fees to Farfaras.
Farfaras worked for twelve years in the banking industry
as a branch manager and teller before being hired by
Nos. 05-2082 & 05-2368 3
Citizens Bank. The Bank is located across the street
from Michael Realty, which is owned by defendants
Robert and George Michael. The Michael brothers are
also majority shareholders of Citizens Bank. Robert is
Chairman of the Board and CEO; George is a Director.
Defendant Nicholas Tanglis is the President of Citizens
Bank and recruited Farfaras.
Farfaras began working for the Bank on April 13, 1999.
Her employment continued until October 20, 2000. Evidence
adduced at trial showed that throughout this time, Farfaras
was subjected to a steady stream of inappropriate comments
and actions by each of the three individual defendants.
Farfaras testified about her encounters with Robert,
[He asked] what my ethnic background was. . . . I told
him I was of Greek descent, and at that point he asked
me if I cried when I found out. . . .
[A]bout a month and a half into my employ-
ment . . .[Robert] asked me if I was married or if I had a
boyfriend, and he said that he didn’t understand why I
wasn’t married or why I didn’t have a boyfriend. He
asked me if I was on drugs . . . an alcoholic . . . [or] if I
was shopping at the malls too much. . . . [H]e said to
me, “I don’t understand why you’re not married, you’re
like an angel.” And he just kind of stared at me for a
while, and he looked at me, and he said, “You know
what, if only I was a little younger and Greek.”
Farfaras also testified about her relationship with Tanglis
and Robert’s brother George. Farfaras stated that George
also asked her about her Greek heritage and whether she
“would have to [marry] a Greek boy?”
Farfaras further testified that on several occasions,
Tanglis “asked me if I would be able to stay late,” alone, in
the closed bank. She told the jury that after talking about
4 Nos. 05-2082 & 05-2368
business Tanglis stopped, stared at her, sat down next
to her,
And he proceeded to put his hand on my knee and rub
my knee, and he would put his hand on my shoulder . . .
and rub it, and he would tell me that we needed to go
out to dinner and get to know each other better. . . .
I told him that I didn’t appreciate him putting his
hands on me . . . I grabbed my purse, and I got up to
leave . . . He met me at the door, and he was trying to
block my way out. . . . I asked him to please move out of
my way. He didn’t. . . . [I] had to push him out of the
way so I could leave. . . . [I felt v]ery humiliated and
scared . . . [and] afraid that I was going to go to work
the next day and not have a job. . . . [The next day,
s]ame thing. . . . I got up, and I asked him not to do that
anymore. . . . He got up, and again he went to the door,
and he blocked my way. I asked him to please move out
of the way, and this time he positioned himself side-
ways so I would have to turn my body sideways in order
to exit that doorway. So depending on how I was
positioned to exit, I would either be rubbing up against
him, my front or back. . . .
After about five or six times, I believe, I had enough,
and I know that I was scared about losing my job, but
at that point I didn’t feel comfortable, safe, nor did
I want to stay after work and be touched, so the last
time he asked me to stay I told him that I was not going
to be staying any longer[.]
The bank opened to the public on January 31, 2000.
Farfaras would answer the phone at 9:00 a.m. every day
when George would call. Farfaras testified that she began
these conversations, “Good morning. Citizens Bank. This is
Jennifer. Can I help you?” and George would answer, “Good
morning Jennifer. Why don’t you come over to my office and
sit on my face[?]” In addition, Farfaras testified that George
Nos. 05-2082 & 05-2368 5
would call throughout the day, often telling Farfaras that
he wanted to “lick [her] like an ice cream cone” or birthday
cake and that he wanted to “fuck” her. Farfaras testified
that George “just laughed” when she told him, “Please don’t
talk to me like that. That’s disgusting. I don’t appreciate it.”
Farfaras stated that she was often required to visit
George Michael in his office and that during these visits
he would “give [her] a perverted look” and make “grunting,
mumbling, sucking noises . . . put his hand on [her] butt
and start laughing, or he would put his hand on [her] leg,
and he would run it up to lift [her] skirt.”
Additionally, Farfaras described telephone conversa-
tions with George.
[H]e would often tell me that he wanted to see me
naked and that he wanted to fuck me and that he
wanted his brother Robert to join in, he wanted to
videotape the session so he could view it at a later date.
He told me that if he wasn’t married that he would
make me marry him whether my father wanted it or
not even though he wasn’t Greek, and we would have a
big Greek wedding and we would be dancing in a circle
with scarves in the air. . . .
[A]fter I had told him to stop talking to me like that,
he would laugh, and he said to me, “You know what, my
brother Bob and I have had so many sexual harassment
complaints against us already that one more is not
going to make a difference.”
Farfaras related that these conversations continued
throughout her employment.
Farfaras testified that in April of 2000, George cornered
her in the bank’s downstairs vault, grabbed her right
arm, pinned her against the wall, and tried to kiss her.
6 Nos. 05-2082 & 05-2368
When I saw his face coming at me, I turned my head,
and instead of catching my lips, he caught half my
cheek and half my lips. . . .
I screamed for him to get away from me, and I told
him not to ever do that again. . . . He laugh[ed].
Farfaras also testified about George’s actions on July 4,
2000, after George ordered Farfaras to come to a party
at his house.
[E]verything was going okay until it was time for us
to leave. . . . He had a sandwich in one hand . . . and he
grabbed me with his other hand by my arm, and
he pinned me up against the wall and while he had food
in his mouth he kissed me. . . . I was thoroughly dis-
gusted as usual, and I pushed him really hard, and I
believe he fell, and I ran out.
Farfaras described to the jury the moaning, slobbering
noises she claimed George made at her desk and told the
jury that sometimes she would have to clean George’s saliva
off her desk after he left. She testified that after handing
Farfaras deposits, George would follow her to the teller
station, then use his elbow to hit her breasts and place his
hand on her backside. Farfaras further testified about her
feelings after these incidents.
It was very degrading and very embarrassing. I felt
humiliated. I felt that he just was controlling me,
I didn’t have a right to speak up and say stop it and
don’t do it. And I didn’t appreciate the fact that he
was putting his hands on me when I didn’t ask him to,
and I didn’t appreciate the fact that he wasn’t listen-
ing to me when I said no.
Farfaras also testified about her interactions with
Robert Michael.
[H]e stated to me that he—the first time he saw me
he said that he knew that I would be trouble for him
Nos. 05-2082 & 05-2368 7
but he didn’t care because he already had enough
trouble anyway so he didn’t mind. . . . [H]e would begin
to tell me that I was the most beautiful Greek girl he
had ever seen and that normally Greek women are not
beautiful, they look like Greek men, and he asked me
why I’m proud of being Greek, there’s really nothing to
be proud of.
The defense objected, claiming that the district court
had already ruled out ethnic comments, but the district
court found these comments, as well as other comments
concerning Farfaras’s heritage, to be related to the ongo-
ing sexual harassment. Farfaras testified that Robert
went on to ask why Greeks are proud of Greek Town, which
he described as “just a bunch of little restaurants” and
stated that “the Jews have something to be proud of”
because of the Magnificent Mile. She also testified that
Robert told her that,
[H]e knew that I liked him because he could see it
in my eyes and that he just wanted to let me know that
he liked me too. And he told me that we needed to get
to know each other better. . . . He told me that he had
a boat and that it’s a beautiful boat and I should
consider spending the weekend on his boat . . . fucking
under the stars.
Farfaras claimed that in order to protect her job, she
was cautious in how she answered these comments and that
she often felt ready to cry after speaking with Robert.
Farfaras told the jury that all three men, Tanglis, Robert,
and George “had a habit of” putting their body against hers
and brushing against her, frequently in the small kitchen
area, where they would block the single doorway to make
her walk past them.
In October of 2000, Farfaras was fired. Although she
could have begun a new job in December, Farfaras did not
begin her new employment until January 8, 2001. The
8 Nos. 05-2082 & 05-2368
salary in her new position was equivalent to her previous
income.
Beata Blaszczyk worked at the bank from 1999 to Sep-
tember of 2000 as a teller. She testified that she heard
George Michael making moaning noises once or twice a day
at Farfaras’s desk and saw George grab or fondle Farfaras
in the presence of Tanglis and Robert.
Farfaras and other witnesses testified that as a result
of the defendants’ actions, Farfaras lost self-esteem, gained
weight, had problems sleeping, changed demeanor, and
became nervous. Although Farfaras never consulted
a medical professional about her unhappiness, Farfaras’s
friend Yonia Yonan testified that Farfaras had been “very
depressed” beginning early in the year 2000. The defen-
dants objected to the use of the word “depressed.” The
district court overruled this objection.
On September 2, 2004, the jury awarded Farfaras
$100,000 for loss of dignity, humiliation, and emotional
distress, $100,000 for pain and suffering, and $100,000
in punitive damages against the three individual defen-
dants. On Count IV, the jury awarded $200,000 in damages
against the bank for emotional distress and humiliation.
Pursuant to 42 U.S.C. § 1981a(b)(3)(a), the district court
reduced the $200,000 award under Title VII to the statutory
maximum of $50,000 for a business the size of Citizens
Bank. The plaintiff proved $9,314.48 in lost wages. The
district court reduced this award to $6,752.90 on defen-
dants’ oral motion. In all, the damage award on September
8, 2004, totaled $356,752.90.
On September 17, 2004, defendants filed a post-trial
motion for a new trial or remittitur of damages. Four days
later, Farfaras filed a motion to reinstate lost wages of
$9,314.48. Defendants’ motion was denied and plaintiff’s
motion was granted on February 8, 2005.
Nos. 05-2082 & 05-2368 9
The district court extended the deadline for filing a
joint submission regarding attorneys’ fees under Local Rule
54.3(e). Despite this extension, no joint statement was ever
filed. The parties did, however, communicate their argu-
ments regarding attorneys’ fees and costs to the district
court. In an unsigned statement, the plaintiff requested
$501,338.68 in attorneys’ fees and costs; the defendants
suggested that the total amount should be $69,334.25.
Although the defendants failed to comply with the local
rules, the district court allowed them to submit their
objections and evaluated the arguments as to the propriety
of specific fees and costs. Farfaras’s attorney submitted a
statement with leave of the district court, reiterating his
request for $501,338.68 in attorneys’ fees and costs.
Farfaras supported her claim for attorneys’ fees with
affidavits stating the reasonableness of her attorney’s
billing rate of $325 per hour, submission of the invoices she
received, and an affidavit stating she had paid coun-
sel $466,054.28 to date. The defendants contested the award
of fees for certain activities, block billing, and duplicative or
otherwise improper billing procedures. On April 15, 2005,
after reviewing the arguments made by both parties, the
district court awarded Farfaras $436,766.75 in attorneys’
fees and costs.
II. Discussion
A. Admission of Evidence at Trial
This Court reviews claims of improperly admitted evi-
dence for abuse of discretion. United States v. Hernandez,
330 F.3d 964, 969 (7th Cir. 2003). Trial judges have greater
familiarity with the witnesses and evidence as a whole,
Consequently, we will reverse a decision on admissi-
bility of evidence only if the trial court has “clearly
abused its discretion,” which typically occurs only
10 Nos. 05-2082 & 05-2368
“where no reasonable person could take the view
adopted by the trial court.” Further, where the al-
leged error of admission occurred during the trial . . .
we “will grant a new trial only if the error had a sub-
stantial influence over the jury, and the result reached
was inconsistent with substantial justice.”
Id. (citing United States v. Hughes, 970 F.2d 227, 232 (7th
Cir. 1992); United States v. Walton, 217 F.3d 443, 449 (7th
Cir. 2000)).
1. Statements Concerning Ethnicity/Nationality
Discrimination based upon ethnicity, race, or country
of origin is not a necessary element for a claim of sexual
harassment or sexual discrimination. See Cooper-Schut
v. Visteon Auto. Sys., 361 F.3d 421, 426 (7th Cir. 2004)
(describing the elements necessary to create a “hostile work
environment”); see also Bryson v. Chi. State Univ., 96 F.3d
912, 915 (7th Cir. 1996) (describing the elements necessary
to demonstrate that quid pro quo sexual harassment has
occurred).
In the instant case, however, the comments concern-
ing Farfaras’s Greek ancestry were intertwined with sexual
harassment. The defendants used her heritage
as a qualifier in the course of their harassment (“[H]e would
tell me again about me being the most beautiful Greek
woman that he’s ever met, and he told me that, again, most
Greek women are—look like Greek men[.]”), as a method of
belittling Farfaras and leaving her susceptible to sexual
attacks (insulting Greek Town directly before crudely
propositioning Farfaras to have sex on the defendant’s
boat), and claiming that her country of origin was the only
thing keeping her from him (“[I]f only I was a little younger
and Greek.”). We find that the district court acted properly
in allowing this testimony.
Nos. 05-2082 & 05-2368 11
In addition, given the large body of evidence presented at
trial demonstrating the defendants’ discriminatory conduct,
there is no evidence to suggest that hearing the defendants’
comments had a “ ‘substantial and injurious effect or
influence’ on the jury’s verdict.” See United States v.
Hanson, 994 F.2d 403, 407 (7th Cir. 1993) (citation omit-
ted). Given the egregious nature of the defendants’ sexual
comments, we do not believe that the defendants’ less
severe, discriminatory comments had an injurious effect or
prejudiced the jury’s verdict. See Williams v. Pharmacia,
Inc., 137 F.3d 944, 951 (7th Cir. 1998).
It is the appellants’ burden to show that, without this
testimony, a different outcome would be likely. The appel-
lant has admitted, “It is impossible to gauge the subject
testimony’s prejudicial impact on the jury.” Where the
impact of a statement is “impossible to gauge,” the district
court’s admission of the statement is not an abuse of
discretion.
Regardless of whether a motion in limine originally
barred the presentation of evidence concerning the defen-
dants’ discriminatory conduct, the district court may adjust
a motion in limine during the course of a trial. Luce v.
United States, 469 U.S. 38, 41-42 (1984). The district court
found that when a conversation that began with eth-
nic/religious comparisons and insults continued into
a sexual conversation, the jury should be allowed to
hear the context of the sexual harassment. This decision
was not an abuse of discretion.
Finally, the testimony regarding Farfaras’s national
origin was relevant to the intentional infliction of emotional
distress alleged by Farfaras. See Figueroa v. City
of Chicago, 2000 WL 520926, at *2 (N.D. Ill. Apr. 24, 2000).
12 Nos. 05-2082 & 05-2368
2. Testimony Concerning Medical, Emotional, and
Psychological Conditions
The defendants seek a new trial based upon their
claim that the district court improperly allowed Yonia
Yonan, a layperson, to describe Farfaras’s mental condition
as “depressed.” Not only was Yonan’s description of
Farfaras elicited from the defendants’ own cross-exam-
ination, see United States v. Duff, 551 F.2d 187, 189 (7th
Cir. 1977), but there is nothing in the record to indicate the
jury would have believed Yonan was offering a clinical
opinion or professional evaluation.
A witness may testify to relevant evidence that is “ratio-
nally based on the perception of the witness . . . and not
based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.” FED. R. EVID. 701. While
“depressed” does have a medical definition, a reasonable
jury can be expected to understand the difference between
lay use of an adjective and an expert’s use of the same word
to describe a specific psychological condition.1
Despite the defendants’ request, the district court refused
to instruct the jury that they should disregard the word
“depressed.” The district court also denied the defendants’
claim that the use of the word “depressed” represented an
outcome-determinative legal conclusion on the issue of
intentional infliction of emotional distress. The jury was
well aware that Yonan’s testimony was not that of an
expert. The district court did not abuse its discretion by
denying the request for an instruction and allowing the
testimony to stand.
1
The Dictionary provides several definitions for the adjective
“depressed.” The first entry states, “low in spirits : SAD; specif :
affected by psychological depression.” WEBSTER’S NINTH NEW
COLLEGIATE DICTIONARY 341 (1990). A jury is capable of differ-
entiating between the general definition of “low in spirits” and the
more specific entry that involves psychological expertise.
Nos. 05-2082 & 05-2368 13
B. Compensatory Damages
“This [C]ourt reviews a district court’s denial of a mo-
tion for remittitur or a new trial on damages for an abuse
of discretion.” Lampley v. Onyx Acceptance Corp., 340
F.3d 478, 483 (7th Cir. 2003) (citations omitted).
The district court and jury are in a superior position
to find facts and determine a proper damages award. The
jury awarded Farfaras $200,000 in compensatory dam-
ages. This award was composed of $100,000 for pain and
suffering and $100,000 for the loss of dignity, humiliation,
and emotional distress caused by the three individual
defendants. The district court denied the defendants’ motion
for a new trial on compensatory damages and their motion
for remittitur.
The district court granted proper deference to the
jury’s verdict and limited its inquiry to three questions:
“whether the award is ‘monstrously excessive’; whether
there is no rational connection between the award and
the evidence, indicating that it is merely a product of the
jury’s fevered imaginings or personal vendettas[;] and
whether the award is roughly comparable to awards made
in similar cases.” Farfaras v. Citizens Bank & Trust Co.,
2005 WL 670523, at *4 (N.D. Ill. Mar. 21, 2005) (quoting
EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1285
(7th Cir. 1985)); see also Lampley, 340 F.3d at 483-84.
Although there was no extensive psychological or medical
testimony presented in this case, the jury heard Farfaras
and her witnesses describe the impact of the defendants’
actions. Medical support is not necessary to prove emotional
injury in a Title VII case. See David v. Caterpillar, Inc., 185
F. Supp. 2d 918, 923 (C.D. Ill. 2002) (“It is well-settled that
Title VII plaintiffs can prove emotional injury by testimony
without medical support.”); see also Merriweather v. Family
Dollar Stores of Ind., Inc., 103 F.3d 576, 580 (7th Cir. 1996).
14 Nos. 05-2082 & 05-2368
The jury is capable of evaluating the impact of the defen-
dants’ egregious conduct upon Farfaras. The jury’s award
was rationally related to the repeated physical and verbal
harassment Farfaras suffered. Furthermore, there is no
evidence whatsoever that the award in this case was a
“product of the jury’s fevered imaginings or personal ven-
detta.” See AIC Sec. Investigations, Ltd., 55 F.3d at 1285.
Although we cannot completely analogize the damage
award in this case to an identical case with either a similar
or dissimilar verdict, such an exact analogy is
not necessary. “Awards in other cases provide a refer-
ence point that assists the court in assessing reasonable-
ness; they do not establish a range beyond which awards
are necessarily excessive. Due to the highly fact-specific
nature of Title VII cases, such comparisons are rarely
dispositive.” Lampley 340 F.3d at 485. Some of the cases
presented by the defendants appear more egregious with
lower damages, while some of the cases presented by
Farfaras appear less egregious with higher damages. Our
responsibility, however, is not to fit this case into a perfect
continuum of past harms and past awards. Rather, our role
in reviewing awards for abuse of discretion is to determine
if the award in this case was roughly comparable to similar
cases, such that the instant award was not so beyond the
pale as to constitute an abuse of discretion. We conclude
that the award in this case was roughly comparable to
previous awards and therefore the district court’s decision
to uphold the jury’s award of compensatory damages was
not an abuse of discretion.
C. Punitive Damages
The defendants appeal the jury’s award of punitive
damages, claiming the district court erred by refusing
to reduce the $100,000 punitive damage award against
the defendants or grant a new trial on the issue of damages.
Nos. 05-2082 & 05-2368 15
This Court has enunciated “three guideposts” to steer the
evaluation of “whether a punitive damage award is grossly
excessive such that it offends due process: (1) the degree of
reprehensibility of defendant’s conduct; (2) the disparity
between the harm or potential harm suffered by the
plaintiff and his punitive damages award; and (3) the
difference between this remedy and the civil penalties
authorized or imposed in comparable cases.” Kapelanski v.
Johnson, 390 F.3d 525, 534 (7th Cir. 2004) (citing BMW of
N.A., Inc. v. Gore, 517 U.S. 559, 575 (1996)).
The district court evaluated this case using the “three
guideposts” model specified in Kapelanski and BMW. When
these three guideposts are not followed and a punitive
damage award is “grossly excessive,” due process has been
offended. Id. We agree with the district court’s assessment
that the defendants’ conduct was extremely reprehensible.
The defendants acted with impunity, using their positions
of power to take advantage of and harm Farfaras.
The punitive damages award in this case is not duplica-
tive of the compensatory damages award. Instead, the
award is calculated to achieve one of the goals of punitive
damages: deterrence of similar future conduct. See AIC Sec.
Investigations, Ltd., 55 F.3d at 1287. The defendants openly
boasted of their substantial wealth and indicated their
belief that this wealth allowed them to flout the law and
harass a young woman. One purpose of punitive damages is
to dissuade defendants who are unaffected by compensatory
damages from the misapprehension that they are beyond
the reach of civil penalties.
Unlike prior cases in which this Court has reduced a
jury’s award of punitive damages, the punitive damages
award in this case was less than the total compensatory
damages. During oral argument, counsel for the appel-
lant could not cite a single case in which this Court
struck down a punitive damages award of half the total
16 Nos. 05-2082 & 05-2368
compensatory damages award as constituting too great
a disparity between the harm suffered and the punitive
damages awarded.
“[S]tatutes routinely provide for double and treble
damages awards to deter and punish.” Id. While comparing
damages in one case to damages in another is not
dispositive, it may provide a useful guide. See supra II.B.
This Court has often enforced punitive damages similar in
size to the award in the instant case. See, e.g., AIC Sec.
Investigations, Ltd., 55 F.3d at 1287; Hamed v. Gen.
Accident Ins. Co., 842 F.2d 170, 174-75 (7th Cir. 1988);
Williamson v. Handy Button Mach., 817 F.2d 1290, 1296
(7th Cir. 1987).
D. Lost Wages
The defendants contend that Farfaras failed to mitigate
damages by immediately beginning work in a comparable
position, and that we should therefore reduce the award
of lost wages to exclude the period of time during
which Farfaras could have been working, but was not.
Although in December Farfaras could have begun a new job
similar to the job she held at Citizens Bank, she did not
begin her new employment until January 8, 2001.
The question of whether the district court should have
awarded Farfaras lost wages for the period in dispute
hinges on whether the defendants raised this issue at trial.
There is no dispute that Farfaras’s alleged failure to
mitigate was not raised in the pleadings or explicitly at
trial. The defendants claim that the issue of failure to
mitigate was raised by implication. “When issues not raised
by the pleadings are tried by express or implied consent of
the parties, they shall be treated in all respects as if they
had been raised in the pleadings.” FED. R. CIV. P. 15(b).
Nos. 05-2082 & 05-2368 17
The intent of rule 15(b) is “to provide the maximum
opportunity for each claim to be decided on its merits
rather than on procedural niceties.”
The key factor in determining whether the pleadings
have been amended is whether the issue has been tried
with the express or implied consent of the parties. The
test for such consent is “whether the opposing party had
a fair opportunity to defend and whether he could have
presented additional evidence had he known sooner the
substance of the amendment.” One sign of implied
consent is that issues not raised by the pleadings are
presented and argued without proper objection by
opposing counsel.
In re Prescott, 805 F.2d 719, 725 (7th Cir. 1986) (citations
omitted).
The district court found that rule 15(b) did not apply
because, “Defendants did not prove, or even raise the issue,
of the failure to mitigate damages at trial. Thus, Defen-
dants have waived their right to assert it now.” As a result
of this ruling, the district court granted Farfaras lost wages
of $9,314.48, rather than the $6,752.90 suggested by the
defendants.
The defendants claim implied consent arose when
Farfaras did not object to cross-examination questions
regarding the timing of her return to work. Farfaras
admitted during cross-examination that her decision “not to
go to work right away” was voluntary. This testimony,
combined with Farfaras’s statement that she could have
started her next job in the middle of December, but chose to
wait until January was not sufficient to demonstrate that
the defense had raised the issue of failure to mitigate.
A district court’s determination of an award for lost wages
is reviewed for clear error. See Fleming v. County of Kane,
898 F.2d 553, 560 (7th Cir. 1990). The trial testimony at
issue is open to multiple interpretations. By questioning the
18 Nos. 05-2082 & 05-2368
reasons behind Farfaras’s decision to postpone returning to
work, the defendants may have been raising the issue of
mitigation of damages, or they may have been attempting
to demonstrate that there was no long-lasting damage to
Farfaras, thereby lessening damages for emotional distress.
What issue was being addressed by defense counsel’s
questions is a question of fact for the district court.
The district court’s interpretation of the purpose of
defense counsel’s question was reasonable. Having observed
the entire trial, the district court was in the best position to
determine whether or not the issue of failure to mitigate
was raised. We see no error in the district court’s finding
that the defendant did not raise the issue of mitigation.
Therefore, the district court’s award of lost wages will be
left undisturbed.
E. Attorneys’ Fees
A district court may in its discretion award attorneys’ fees
for an action under Title VII. See 42 U.S.C. § 2000e-5(k). We
review the district court’s award of attorneys’ fees and costs
for abuse of discretion. See People Who Care v. Rockford Bd.
of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1311 (7th Cir.
1996).
In reviewing the district court’s determination of attor-
neys’ fee awards, our standard is a “highly deferential
abuse of discretion standard.” The district court is
accorded significant deference in fee matters because:
(1) it possesses “superior understanding of the litigation
and [there exists a] desirability of avoiding frequent
appellate review of what essentially are factual mat-
ters.”; (2) the need for uniformity in attorneys’ fees
awards is not great enough to warrant appellate review
of minutia; and (3) the desirability of avoiding “a second
major litigation” strictly over attorneys’ fees is high.
Nos. 05-2082 & 05-2368 19
Spellan v. Bd. of Educ. for Dist 111, 59 F.3d 642, 645 (7th
Cir. 1995) (alteration in original) (citations omitted).
The district court properly utilized the lodestar method
for determining attorneys’ fees. The lodestar figure is
arrived at by multiplying the number of hours reasonably
expended on litigation by a reasonable hourly rate. The
defendants have not challenged the $325 hourly fee charged
by Farfaras’s attorney.
The attorneys’ fees in this case were substantial. The
district court awarded a total of $436,766.75 in attorneys’
fees and costs. The defendants claim that the award should
be reduced by $285,037.50 (65.3%) or some portion thereof.
Although Farfaras originally requested $501,338.68 in fees
and costs, she has not cross-appealed or objected to the
district court’s reduction.
We begin our analysis of the defendants’ claim for a
reduction by noting that the parties did not comply
with Local Rule 54.3 of the Northern District of Illinois.
Defendants’ counsel claimed before the district court that
its billing records were irrelevant. This position is inconsis-
tent with the letter and spirit of Local Rule 54.3. The rule’s
purpose is to avoid exactly the type of hypocritical objec-
tions presented by the defendants. Although the defendants
object to the use of block billing and “vague” descriptions by
Farfaras’s counsel, the defendants’ counsel used similarly
vague descriptions and block billing. Although “block
billing” does not provide the best possible description of
attorneys’ fees, it is not a prohibited practice.
Despite the parties’ failure to comply with Northern
District of Illinois Local Rule 54.3(d)(5), the district court
engaged in a thorough analysis of Farfaras’s attorneys’ fees
and costs. Where the defendants did address specific fees
and costs, the district court discussed every objection except
those that were “so without merit that they [did] not require
a detailed discussion.” In all, the district court reduced
20 Nos. 05-2082 & 05-2368
Farfaras’s attorney’s billable time by 80.5 hours and a law
clerk’s billable time by 35 hours. Additionally, $1,551.93 in
costs were disallowed.
The district court was in a superior position to observe
the work of the attorneys in this case and appraise the
appropriate value of their services. Its analysis of the
fees and costs was fair, carefully measured, and far from an
abuse of discretion.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
Nos. 05-2082 & 05-2368 21
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-11-06