Garity v. Donahoe

• Court: District Court, D. Nevada
• Decided: March 31, 2020
• Docket: 2:11-cv-01805
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 Garity, Case No. 2:11-cv-01805-RFB-CWH

8 Plaintiff, ORDER

9 v.

10 Donahoe,

11 Defendants.

12 13 I. INTRODUCTION 14 Before the Court are Plaintiff’s Motion for Fees and Attorney Consultations (ECF No. 15 484), Plaintiff’s Motion for Relief Under Federal Rule of Civil Procedure Rule 59 (ECF No. 493), 16 Plaintiff’s Motion to Amend/Correct Order (ECF No. 494), Defendant’s Motion for Leave to File 17 Supplemental Brief (ECF No. 500), Plaintiff’s Motion for Permission to Reply (ECF No. 503), 18 and Plaintiff’s Motion for Ruling (ECF No. 512). 19 20 II. PROCEDURAL BACKGROUND 21 Plaintiff filed the original complaint in this action against the Postmaster General of the 22 United States Postal Service on November 9, 2011. ECF No. 1. After discovery and dispositive 23 motions were filed, a bench trial was held on January 16, 17, 18, 19, 24 and February 8, 2018 on 24 Plaintiff’s race discrimination and disability discrimination claims. ECF Nos. 429, 432, 433, 434, 25 439, 452. The Court issued its findings of fact and conclusions of law on March 31, 2019. ECF 26 No. 478. The Court entered judgment in favor of Postmaster General Megan J. Brennan as to 27 Plaintiff’s Title VII race discrimination claim and in favor of Plaintiff as to the Rehabilitation Act 28 disability discrimination claim. Id. at 18. The Court awarded Plaintiff equitable damages. Id. 1 Plaintiff filed the instant Motion for Fees and Attorney Consultations on April 15, 2019. 2 ECF No. 484. Defendant Brennan responded on May 5, 2019. ECF No. 496. Plaintiff replied on 3 May 10, 2019. ECF No. 499. 4 Plaintiff filed the instant Motion for Relief Under Federal Rule of Civil Procedure 59 on 5 April 26, 2019. ECF No. 493. Defendant responded on May 10, 2019. ECF No. 497. Plaintiff 6 replied on May 17, 2019. ECF No. 501. 7 Plaintiff filed the instant Motion to Amend/Correct on April 26, 2019. ECF No. 494. 8 Defendant responded on May 10, 2019. ECF No. 497. Plaintiff replied on May 17, 2019. ECF No. 9 501. 10 Defendant filed the instant Motion for Leave to File a Supplemental Brief regarding its 11 objection to Plaintiff’s Bill of Costs (ECF No. 495) and response to Plaintiff’s Motion for Attorney 12 Fees (ECF No. 484) on May 14, 2019. ECF No. 500. Plaintiff responded on May 17, 2019. ECF 13 No. 502. 14 Plaintiff filed the Motion for Permission to File Reply to Defendant’s Exhibit in the instant 15 Motion for Leave to File Supplemental Brief (ECF No. 500) on May 17, 2019. ECF No. 503. 16 Plaintiff filed the instant Motion for Ruling on the above motions on June 24, 2019. ECF 17 No. 512. 18 III. FACTUAL BACKGROUND 19 This case is a race and disability discrimination action. Plaintiff Rosemary Garity worked 20 at the Pahrump Post Office and alleged adverse employment action from her supervisors on the 21 basis of (a) her Caucasian race and (b) her medically documented disabilities, which require 22 minimal reasonable accommodation. The Court held a six-day bench trial in this case from January 23 16, 2018 through February 8, 2018. The Court ruled in favor of Defendant as to Plaintiff’s race 24 discrimination action pursuant to Title VII of the Civil Rights Act of 1964 and in favor of Plaintiff 25 as to Plaintiff’s disability discrimination action pursuant to the Rehabilitation Act of 1973. 26 27 IV. LEGAL STANDARD 28 A. Federal Rules of Civil Procedure 59 and 52 1 Rule 59(a) allows a district court to “grant a [party's motion for a] new trial on all or some 2 of the issues . . . after a nonjury trial, for any reason for which a rehearing has heretofore been 3 granted in a suit in equity in federal court.” Fed. R. Civ. P. 59(a)(1)(B). Rule 59(a)(2) allows that 4 after a bench trial, “the court may, on motion for a new trial, open the judgment if one has been 5 entered, take additional testimony, amend findings of fact and conclusions of law or make new 6 ones, and direct the entry of a new judgment.” Fed. R. Civ. P. 59(a)(2). “There are three grounds 7 for granting new trials in court-tried actions under Rule 59(a)(2): (1) manifest error of law; (2) 8 manifest error of fact; and (3) newly discovered evidence.” Brown v. Wright, 588 F.2d 708, 710 9 (9th Cir. 1978); see also Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 n.4 (9th Cir. 2007) (noting 10 that Brown v. Wright, 588 F.2d 708 (9th Cir. 1978) established the standard for bench trial cases 11 under Federal Rule of Civil Procedure 59(a)(2)). 12 Federal Rule of Civil Procedure 59(e) permits a party to file a motion to alter or amend a 13 judgment no later than twenty-eight days after the entry of the judgment. “Since specific grounds 14 for a motion to amend or alter are not listed in the rule, the district court enjoys considerable 15 discretion in granting or denying the motion.” McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 16 (9th Cir. 1999). But the relief provided for is extraordinary and “should be used sparingly.” Allstate 17 Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (citing McDowell, 197 F.3d at 1255). The 18 “four basic grounds upon which a Rule 59(e) motion may be granted [are]: (1) if such motion is 19 necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such 20 motion is necessary to present newly discovered or previously unavailable evidence; (3) if such 21 motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an 22 intervening change in controlling law.” Id. 23 Federal Rule of Civil Procedure 52(b) states that “On a party’s motion filed no later than 24 28 days after the entry of judgment, the court may amend its findings—or make additional 25 findings—and may amend the judgment accordingly. The motion may accompany a motion for a 26 new trial under Rule 59.” 27 B. Taxation of Costs 28 Federal Rule of Civil Procedure 54(d)(1) governs costs and states, inter alia, that “Unless 1 a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s 2 fees—should be allowed to the prevailing party.” Rule (54)(d)(1) clearly creates a presumption 3 that costs should be awarded to the prevailing party. Berkla v. Corel Corp., 302 F.3d 909, 921(9th 4 Cir. 2002). However, Rule 54(d)(1) further provides that “costs against the United States, its 5 officers, and its agencies may be imposed only to the extent allowed by law.” 6 The Rehabilitation Act is codified at 29 U.S.C. § 794a(b), and states that, “In any action or 7 proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its 8 discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee 9 as part of the costs.” “[T]he text of the Rehabilitation Act supports an inference that costs are to 10 be awarded in the ordinary course.” Martin v. California Dep't of Veterans Affairs, 560 F.3d 1042, 11 1053 (9th Cir. 2009) 12 28 U.S.C. § 1920 governs taxation of costs and allows a judge or clerk to tax costs as to: 13 1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts 14 necessarily obtained for use in the case; (3) Fees and disbursements for printing and 15 witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 16 1923 of this title; [and] (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 17 section 1828 of this title. 18 19 “Federal courts may not award costs beyond those mentioned in 28 U.S.C. § 1920 unless another 20 federal statute authorizes them to do so.” Bunker Holdings Ltd. v. Yang Ming Liberia Corp., 906 21 F.3d 843, 847 (9th Cir. 2018). 22 23 C. DISCUSSION 24 A. Plaintiff’s Motion for Fees and Attorney Consultations (ECF No. 484), Defendant’s Motion for Leave to File Supplemental Brief (ECF No. 500), 25 Plaintiff’s Motion for Permission to Reply (ECF No. 503) 26 Plaintiff’s motion seeks to separately claim costs for expert fees and attorney consultations 27 concurrent with Plaintiff’s Bill of Costs (ECF No. 483), in order to comply with Federal Rule of 28 Civil Procedure 54(d). ECF No. 484 at 1. For the reasons discussed infra, the Court will only 1 consider Plaintiff’s motion as it pertains to attorney consultations. 2 Defendant’s opposition to the instant motion includes its objections to Plaintiff’s Bill of 3 Costs (ECF No. 483) as well as Plaintiff’s pursuit of costs for expert fees and attorney consultations 4 identified in the instant motion. Compare ECF No. 495 with ECF No. 496. The Court considers 5 only Defendant’s opposition to the attorney consultations consistent with Rule 54(d)(2)(A), which 6 mandates that a claim for attorneys’ fees be made by motion. The Court will not consider either 7 the Bill of Costs (ECF No. 483) nor the opposition as it amounts to an objection to the costs 8 identified in the Bill of Costs (ECF No. 495), as the Clerk of Court has not yet taxed costs. 9 Defendant argues that neither 28 U.S.C. § 1920 nor the Local Rules permit costs for 10 consultations even with attorneys, and that because Plaintiff was pro se, she cannot claim 11 attorneys’ fees. ECF No. 496 at 8-9. Furthermore, she cannot claim the costs of travel to these 12 consultations because those costs are similarly not allowed under the statute and the local rules. 13 Id. at 9. 14 In reply, Plaintiff states she is the prevailing party on the Rehabilitation Act claim and 15 therefore entitled to costs. ECF No. 499 at 1-4. Plaintiff further argues that the attorney 16 consultations are costs that should be permitted. Id. at 11. Plaintiff also argues that the fees should 17 be allowed under the Equal Access to Justice Act. Id. at 11-12. 18 “Pro se plaintiffs . . . are not entitled to attorney's fees.” Blanchard v. Morton Sch. Dist., 19 509 F.3d 934, 938 (9th Cir. 2007) (citing Kay v. Ehrler, 499 U.S. 432, 438 (1991)). 20 The Court denies Plaintiff’s motion. As Plaintiff proceeded pro se and seeks costs for the 21 consultations she had with attorneys, the costs at issue are “costs other than attorney’s fees” and 22 to be considered in the first instance by the Clerk of Court. See Fed. R. Civ. P § 54(d)(1). The 23 Court will review the Clerk’s taxed costs upon motion. Id. 24 Furthermore, the Court grants Defendant’s Motion for Leave to File Supplemental Brief 25 (ECF No. 500) as Plaintiff raised legal arguments in reply not addressed in the original motion. 26 The Court also grants Plaintiff’s Motion for Permission to Reply (ECF No. 503), which seeks to 27 reply to the supplemental brief. The Clerk of Court may consider Defendant’s supplemental brief 28 and Plaintiff’s reply in conjunction with the guidance provided in this order to tax costs. 1 B. Plaintiff’s Motion for Relief Under Federal Rule of Civil Procedure Rule 59 (ECF 2 No. 493), Plaintiff’s Motion to Amend/Correct Order (ECF No. 494) 3 Plaintiff seeks both a new partial trial and to alter or amend the judgment. 4 Plaintiff argues in the Motion for Relief Under Federal Rule of Civil Procedure Rule 59 5 that the Court erred by failing to recuse itself, displayed bias in favor of Defendant, and that there 6 were procedural irregularities and rulings that prejudiced Plaintiff. See ECF No. 493 at 3-7, 19- 7 22. Plaintiff further argues that hostile environment should have been an added claim and 8 “remedied at trial . . . .” id. at 7, and that retaliation was proven, id. at 11. Plaintiff also asserts that 9 the Court’s ruling granting Defendant’s Motion in Limine (ECF No. 338) which dismissed 10 Plaintiff’s compensatory damages and therefore her demand for a jury trial, was in essence an 11 improper dispositive motion and resulted in an improper trial. Id. at 11-12, 17-18. Plaintiff also 12 asserts that the damages awarded were inadequate because they fail to make Plaintiff whole as 13 required by Title VII, as they do not compensate Plaintiff for back and front pay or loss of benefits. 14 Id. at 14-17. Plaintiff further states the evidence supported a finding in her favor regarding the race 15 discrimination claim. Id. at 22-23. Plaintiff asserts the cumulative effect of these errors warrants a 16 new trial on the racial discrimination claim before a different judge. 17 In response to Plaintiff’s arguments as set forth in the Motion for Relief Under Federal 18 Rule of Civil Procedure Rule 59, Defendant categorizes Plaintiff’s arguments into procedural 19 issues, substantive legal issues, substantive factual issues, and evidentiary issues. ECF No. 497 at 20 3. Regarding procedural issues, Defendant argues those identified by Plaintiff had no substantive 21 impact on the trial and Plaintiff was permitted to present relevant evidence. Id. at 4. Regarding 22 evidentiary issues, Defendant argues Federal Rule of Civil Procedure 61 holds that errors in 23 admitting or excluding evidence are not grounds for a new trial “unless justice requires otherwise;” 24 in other words, if a party’s substantive rights have been affected. Id. (citing Fed. R. Civ. P. 61; 25 Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir. 1995)). Defendant argues the 26 Court did not exclude relevant evidence and therefore Plaintiff’s substantive rights were 27 unaffected. Id. at 4-5. Regarding the substantive legal issues, Defendant asserts it was legally 28 correct for the Court to subtract Plaintiff’s grievance remedies from her backpay awards in order 1 to avoid double compensation, id. at 6, and because Plaintiff did not prove constructive discharge, 2 she was not entitled to a front pay award, id. Defendant also argues the Rehabilitation Act does 3 not provide for punitive damages, id. at 6-7, that the Court properly barred Plaintiff from receiving 4 compensatory damages as a sanction, id. at 7, and an additional gross-up to account for the 5 taxability of the backpay is unnecessary and the Court’s award fully compensated Plaintiff for the 6 value of her benefits, id. at 7. Defendant also argues that regarding the racial discrimination claim, 7 even if the Court took into account the evidence identified by Plaintiff in the motion, it would not 8 lead to a different result. Id. at 8. 9 Plaintiff also seeks in the Motion to Amend/Correct Order to correct the Court’s Findings 10 of Fact, ECF No. 494 at 1, and add facts that were included in Plaintiff’s Proposed Findings of 11 Fact (ECF No. 411), id. at 2-7. Plaintiff asserts the Court’s Findings of Facts should be amended 12 to include these facts and that their inclusion and consideration mandates a ruling in Plaintiff’s 13 favor. Id. at 7. 14 Defendant responds that even if the Court’s Findings 26 and 27 were erroneous as Plaintiff 15 contends, they do not materially affect the Court’s rulings. ECF No. 497 at 8. Regarding the 16 inclusion of facts identified in Plaintiff’s Proposed Findings of Fact, Defendant asserts they were 17 properly excluded because they were irrelevant or immaterial to Plaintiff’s race and disability 18 discrimination claims. Id. at 8-9. 19 The Court denies Plaintiff’s Motion to Amend/Correct Order and denies in part Plaintiff’s 20 Motion for Relief Under Federal Rule of Civil Procedure Rule 59. Many of the objections Plaintiff 21 raises as to limits on trial testimony and evidence were already deemed duplicative of objections 22 made on the record by the Court in its order addressing, inter alia, Plaintiff’s Motion to Remedy 23 Trial Deficiencies (ECF No. 470). See ECF No. 478 at 11. The Court once more incorporates its 24 reasoning from the trial record denying Plaintiff’s requests as well as from that order. Id. at 11-12. 25 Regarding Plaintiff’s request for a new partial trial on the racial discrimination claim, Plaintiff has 26 failed to show any manifest error of law or fact and has not presented newly discovered evidence. 27 Plaintiff’s arguments essentially amount to a disagreement as to the Court’s evaluation of the 28 evidence; this disagreement does not constitute a viable justification for a new trial. Furthermore, 1 the Court declines to amend its order to include Plaintiff’s proposed findings of fact pursuant to 2 Federal Rule of Civil Procedure 52(b), as the Court finds they would not have any substantive 3 effect on the Court’s legal conclusions. 4 The Court does however find that Plaintiff has identified a specific ground to amend the 5 Court’s judgment pursuant to Federal Rule of Civil Procedure 59(e), specifically to correct a 6 manifest error of fact upon which the Court’s damages award rests. The Court’s backpay award is 7 based on a calculation of Plaintiff’s regular pay rate as $25. However, both parties in the briefing 8 on this motion identify the appropriate figure as $26.55, as evidenced by Plaintiff’s Trial Exhibit 9 114. See ECF No. 497 at 7; ECF No. 501 at 7. 10 The Court therefore grants Plaintiff’s Motion as it pertains to amending the damages award 11 to reflect the appropriate base pay rate. The Court amends the damages award to reflect that 12 Plaintiff would have earned income for an additional 1,461.78 hours of work at a pay rate of $26.55 13 per hour, for a total of $38,810.26. The Court subtracts the $12,222.87, $2,500.00, and $1,900.00 14 payments Plaintiff already recovered for unworked hours and therefore awards backpay in the 15 amount of $22,187.39, as well as pre-judgment interest. The Court declines to further amend the 16 damages award. “[B]ackpay awards consist primarily of wages, [though] such awards may also 17 include fringe benefits.” 45 C Am. Jur. 2d Job Discrimination § 2558. However, “[t]he amount of 18 backpay awarded is committed to the sound discretion of the trial court.” 45 C Am. Jur. 2d Job 19 Discrimination § 2555. In its discretion, the Court declines to further amend the damages award to 20 include a gross up or fringe benefits. 21 22 D. CONCLUSION 23 IT IS THEREFORE ORDERED that Plaintiff’s Motion for Fees and Attorney 24 Consultations (ECF No. 484) is DENIED for the reasons stated in this order. 25 IT IS FURTHER ORDERED that Defendant’s Motion for Leave to File Supplemental 26 Brief (ECF No. 500) and Plaintiff’s Motion for Permission to Reply (ECF No. 503) are 27 GRANTED. 28 1 IT IS FURTHER ORDERED that Plaintiff’s Motion for Relief Under Federal Rule of Civil Procedure Rule 59 (ECF No. 493) is GRANTED in part. The Court amends its previous 3} order and awards Plaintiff equitable damages on the Rehabilitation Act disability discrimination 4| claim in the amount of $22,187.39, as well as pre-judgment interest. 5 IT IS FURTHER ORDERED that Plaintiffs Motion to Amend/Correct Order (ECF No. 6| 494) DENIED. 7 IT IS FURTHER ORDERED that Plaintiff's Motion for Ruling (ECF No. 512) is 8 | DENIED as moot. 9 IT IS FURTHER ORDERED that the Clerk of Court tax costs in accordance with 10 | guidance established in this order. 11 12 DATED March 31, 2020.

14 RICHAR CE. BAULY ARE, II 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28

_9-