Johnson v. Albertsons LLC

Opinion

1 The Honorable Richard A. Jones

5 UNITED STATES DISTRICT COURT AT SEATTLE 7

Case No. 2:18-01678-RAJ 9 Plaintiff, ORDER ON POST-TRIAL 10 v. MOTIONS

12 Defendant.

13 14 This matter is before the Court on Defendant’s motion for a new trial, or 15 alternatively, remittitur of the jury award (Dkt. # 101), Plaintiff’s motion for attorneys’ 16 fees (Dkt. # 104), and Plaintiff’s motion for adverse tax consequences and pre-judgment 17 interest (Dkt. # 119). 19 Plaintiff Kimberly Ann Johnson (“Plaintiff” or “Ms. Johnson”) brought this 20 action against Defendant Albertsons (“Defendant” or “Albertsons”) asserting gender 21 discrimination and retaliation claims under Title VII and Washington’s Law Against 22 Discrimination (“WLAD”). On March 6, 2020, a jury returned a verdict in favor of Ms. 23 Johnson on both the Title VII and WLAD retaliation claims, but not the gender 24 discrimination claims. Dkt. # 99. Ms. Johnson was awarded $375,000 in past economic 25 damages (“back pay”), $750,000 in emotional distress damages, $1,500,000 in future 26 economic damages (“front pay”), and $10,000,000 in punitive damages. Id. Albertsons 27 1 now moves for a new trial or remittitur of damages. Dkt. # 101. Plaintiff moves for 2 attorneys’ fees, costs, prejudgment interest, and a tax gross up. Dkt. ## 119, 104. 4 Under Federal Rule of Civil Procedure 59, a “court may, on motion, grant a new 5 trial on all or some of the issues . . . after a jury trial, for any reason for which a new 6 trial has heretofore been granted in an action at law in federal court . . . .” Rule 59 7 “does not specify the grounds on which a motion for a new trial may be granted,” 8 instead, incorporating “those grounds that have been historically recognized.” Molski v. 9 M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting Zhang v. Am. Gem 10 Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003)). This includes claims that “the 11 verdict is against the weight of the evidence, that the damages are excessive, or that, for 12 other reasons, the trial was not fair to the party moving.” Id. (quoting Montgomery 13 Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)). Within the Ninth Circuit, a trial 14 court may grant a new trial “only if the verdict is contrary to the clear weight of the 15 evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of 16 justice.” Id. (quoting Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 17 493, 510 n. 15 (9th Cir. 2000)). 18 On a Rule 59 motion, a district court has “the duty . . . to weigh the evidence as 19 [the court] saw it, and to set aside the verdict of the jury, even though supported by 20 substantial evidence, where, in [the court’s] conscientious opinion, the verdict is 21 contrary to the clear weight of the evidence.” Molski, 481 F. 3d at 729 (internal 22 citations and quotations omitted). “The judge can weigh the evidence and assess the 23 credibility of witnesses, and need not view the evidence from the perspective most 24 favorable to the prevailing party” in ruling on a motion for a new trial. Landes Const. 25 Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987). 26 27 2 A. Motion for a New Trial 3 Albertsons argues that a new trial is warranted because: (1) the Court erred in 4 excluding certain evidence undermining the trial’s fairness and, (2) the verdict was 5 against the “clear weight” of the evidence. 6 i. Partial Exclusion of Rebecca Dean Report and Testimony 7 Before the trial, the Court limited the testimony and report of defense witness 8 Rebecca Dean, an outside investigator retained by Albertsons to investigate Ms. 9 Johnson’s claims of gender discrimination prior to her termination. Dkt. # 72 at 2-3. 10 Specifically, the Court concluded that, in addition to other admissibility issues, the 11 probative value of the report was outweighed by the danger of unfair prejudice and the 12 risk that the jury might be tempted to consider the report as “substantive proof of an 13 absence of gender discrimination, rather than merely evidence of Albertsons’ state of 14 mind.” Dkt. # 72 at 3 (citing Fed. R. Evid. 403). After a motion for reconsideration, the 15 Court agreed to allow Ms. Dean to testify, with a limiting instruction (Dkt. # 94), that 16 she investigated Ms. Johnson’s allegations, the findings of her investigation, and that 17 she shared her findings with Albertsons. Dkt. # 86. Albertsons now argues that the 18 Court erred in limiting the admissibility of Ms. Dean’s report and testimony, resulting in 19 unfair prejudice to Albertsons. 20 As an initial matter, Ms. Dean’s report contained hearsay, double hearsay, and 21 legal conclusions and opinions, even though Ms. Dean was not being offered as an 22 expert witness. Assuming, for the sake of argument, that Albertsons could have 23 overcome these admissibility challenges, the Court does not believe that the limitations 24 imposed on Ms. Dean’s testimony and report resulted in a “miscarriage of justice” 25 necessitating a new trial. 26 Albertsons argues that Ms. Dean’s testimony was necessary to challenge Ms. 27 Johnson’s testimony regarding the “facts and standards necessary to ensure food safety” 1 and Ms. Johnson’s characterization of her performance. Dkt. # 101 at 3. But 2 Albertsons introduced the testimony of several witnesses that Ms. Dean spoke with 3 during her investigation who had the opportunity to do exactly that. And, to the extent 4 that Albertsons contends that Ms. Dean’s testimony was necessary to show Albertsons’ 5 state of mind and the reasonable actions it took upon learning of Ms. Johnson’s 6 allegations, Ms. Dean was permitted to testify that she investigated Ms. Johnson’s 7 allegations, the findings of her investigation, and that she shared her findings with 8 Albertsons. 9 Errors in evidentiary rulings only warrant a new trial when the ruling 10 “substantially prejudiced” the moving party. Harper v. City of Los Angeles, 533 F.3d 11 1010, 1030 (9th Cir. 2008). Because Albertsons was not “substantially prejudiced” by 12 the Court’s ruling, Albertsons’ motion for a new trial on this basis is DENIED. 13 i. Verdict Against Weight of Evidence 14 Albertsons next argues that the “weight of the evidence” clearly supported a 15 defense verdict. Dkt. # 101 at 3-4. To vacate the jury’s verdict, this Court must find 16 that the verdict “is contrary to the clear weight of the evidence, or is based upon 17 evidence which is false, or to prevent, in the sound discretion of the trial judge, a 18 miscarriage of justice.” Hanson v. Shell Oil Co., 541 F.2d 1352, 1359 (9th Cir. 1976), 19 cert. denied, 429 U.S. 1074 (1977) (quoting Moist Cold Refrigerator Co. v. Lou 20 Johnson Co., 249 F.2d 246, 256 (9th Cir. 1957), cert. denied, 356 U.S. 968 (1958)); 21 William Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 668 F.2d 1014, 22 1027 (9th Cir. 1981), cert. denied, 459 U.S. 825 (1982). While the trial court may 23 weigh the evidence and credibility of the witnesses, the court is not justified in granting 24 a new trial “merely because it might have come to a different result from that reached 25 by the jury.” Wilhelm v. Associated Container Transportation (Australia) Ltd., 648 26 F.2d 1197, 1198 (9th Cir. 1981). 27 1 According to Albertsons, Ms. Johnson presented “no evidence” that Mr. 2 Schroeder’s decision to terminate her employment had anything to do with her 3 complaints of gender discrimination. Dkt. # 101 at 4. Instead, Albertsons argues, the 4 clear weight of the evidence supported its claims that Ms. Johnson was terminated due 5 to her “poor performance” and failure to satisfy the PIP requirements. Id. But 6 Albertsons’ summary of the evidence minimizes the weight of Ms. Johnson’s evidence 7 of retaliation. 8 First, Albertsons discounts the testimony of Ms. Johnson that her concerns of 9 gender discrimination were communicated to Mr. Schroeder prior to her email to Bob 10 Miller in January 2018. Dkt. # 103 at 181:16-182:19. Ms. Johnson also offered 11 evidence of Mr. Schroeder’s general animus towards her, including her account of a 12 contentious meeting with Mr. Schroeder in October 2017. See Dkt. # 108 at 202:2-24. 13 It was not unreasonable for the jury to infer that Ms. Johnson’s termination was 14 motivated by retaliatory animus. Albertsons also conveniently disregards testimony that 15 after Ms. Johnson raised her complaints of discrimination, her sales projections were 16 pushed across all her stores. Dkt. # 105 at 78:14-79:24. Finally, Albertsons omits the 17 testimony of Sean Pritchard that before Ms. Johnson’s termination Mr. Backus gave one 18 of her stores a very low inspection grade, but shortly after her termination, Mr. Backus 19 gave that same store, now under the supervision of Brett Podnar, a high score even 20 though the conditions had not changed. Dkt. # 108 at 23:22-24:19; Dkt. # 106 at 92:24- 21 93:10. 22 On this record, the Court cannot find that the jury’s verdict was “contrary to the 23 weight of the evidence.” Roy v. Volkswagen of Am., Inc., 896 F.2d 1174, 1176 (9th 24 Cir.), opinion amended on denial of reh’g, 920 F.2d 618 (9th Cir. 1990). Albertsons’ 25 motion for a new trial on this basis is DENIED. 26 27 1 B. Motion for Remittitur 2 Ms. Johnson was awarded $375,000 in past economic damages, $750,000 in 3 emotional distress damages, $1,500,000 in future economic damages (“front pay”), and 4 $10,000,000 in punitive damages. Albertson asks the Court to remit the front pay, 5 emotional distress, and punitive damages awards. Dkt. # 101 at 5. The Ninth Circuit 6 has held that a jury award should be upheld “unless the amount is grossly excessive or 7 monstrous, clearly not supported by the evidence, or based only on speculation or 8 guesswork.” Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 9 1435 (9th Cir. 1996). In Washington, courts are authorized to order a new trial only if 10 the damages awarded are: (1) the result of “passion or prejudice,” (2) outside the range 11 of substantial evidence in the record, or (3) “shock the conscience” of the court. See 12 RCW 4.76.030; Green v. McAllister, 103 Wash. App. 452, 462, 14 P.3d 795 (2000). 13 A trial court reviewing a damages award attacked as excessive must consider the 14 evidence of damages in a light most favorable to the prevailing party. Seymour v. 15 Summa Vista Cinema, Inc., 809 F.2d 1385, 1387 (9th Cir. 1987), amended on other 16 grounds by, 817 F.2d 609 (9th Cir. 1987). The court should not substitute its judgment 17 for that of the jury, but instead reduce the judgment to the maximum amount sustainable 18 by the proof. D & S Redi–Mix v. Sierra Redi–Mix & Contracting Co., 692 F.2d 1245, 19 1249 (9th Cir. 1982) (citations omitted). If the court determines that the damages award 20 is excessive it may reduce the award, with consent of the plaintiff. See Fenner v. 21 Dependable Trucking Co., 716 F.2d 598, 603 (9th Cir. 1983); Green, 103 Wash. App. at 22 462, 14 P.3d 795. 23 i. Front Pay 24 The purpose of an award of front pay is to make a victim of discrimination or 25 retaliation whole, but this must be tempered by what she could earn using reasonable 26 mitigation efforts. Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148, 1157 (9th 27 Cir. 1999). Thus, front pay is intended to be temporary in nature. Cassino v. Reichhold 1 Chemicals, Inc., 817 F.2d 1338, 1347 (9th Cir. 1987). “Because of the potential for 2 windfall, front pay’s use must be tempered.” Gotthardt v. Nat’l R.R. Passenger Corp., 3 191 F.3d 1148, 1157 (9th Cir. 1999) (internal citation and quotations omitted). The 4 longer the period of front pay, the more speculative the damages become. Peyton v. 5 DeMario, 287 F.3d 1121, 1128 (D.C. Cir. 2002). 6 Under Title VII, front pay is an alternative to the equitable remedy of 7 reinstatement, and thus is within the discretion of the court. Pollard v. E.I. du Pont de 8 Nemours & Co., 532 U.S. 843, 854 n.3 (2001). In contrast, under Washington law, the 9 calculation of front pay is a jury issue, and a court may reduce a jury’s damages award, 10 but only with the plaintiff’s consent. Green v. McAllister, 14 P.3d 795, 801 (Wash. 11 App. Ct. 2000); see also Passantino, 212 F.3d at 510. Here, the jury awarded Ms. 12 Johnson $1,500,000 in front pay. Albertsons asks the Court to remit the award to no 13 more than three years of front pay, arguing that the jury award is grossly excessive. 14 Dkt. # 101 at 8. 15 What troubles this Court most is the lack of evidence supporting Plaintiff’s 16 requested economic damages. At trial, Plaintiff did not offer any expert testimony 17 regarding her projected future economic losses, relying solely on her own testimony 18 regarding her compensation while employed at Albertsons and her efforts to find 19 “comparable” employment. During closing statements, Ms. Johnson’s counsel argued 20 that she was entitled $ 3,436,728 in front pay, or 16.9 years. Dkt. # 161 at 205:11–21. 21 In doing so, counsel asked the jury to assume that Ms. Johnson would have continued 22 working for Albertsons, receiving the same salary, to the age of 70 and that Ms. Johnson 23 would not be able to find any comparable employment for the duration of her working 24 life. 25 The Court finds the claim that Ms. Johnson will never be able to find a 26 comparable position, or any position for that matter, entirely unsupported by the record. 27 Plaintiff did not introduce any evidence to show that Ms. Johnson would have continued 1 working for Albertsons for the next 7–17 years or that she is incapable of finding 2 comparable employment for at least seven more years. And while the Court does not 3 contest the jury’s finding that Ms. Johnson appropriately mitigated her damages, 4 Albertsons’ expert witness, William Skilling, also testified that Ms. Johnson’s extensive 5 professional experience and transferable skills qualified her for several types of 6 positions. Dkt. # 115 at 132:19–23. 7 On this record, the Court finds that the jury’s $1,500,000 award is purely 8 speculative and well outside the range of substantial evidence. Thus, the Court will 9 remit the front pay award to three years. This is consistent with Ms. Johnson’s age, 10 experience, and training. Additionally, because Ms. Johnson received back pay for a 11 period of nearly two years, an additional three years of front pay gives her roughly five 12 years to mitigate her damages. See Erickson v. Biogen, Inc., No. C18-1029-JCC, 2020 13 WL 885743, at *4 (W.D. Wash. Feb. 24, 2020) (remitting front pay award to three years 14 in WLAD and Title VII case); Hill v. GTE Directories Sales Corp., 71 Wash. App. 132, 15 139 (1993) (affirming remittitur of economic damages where jury award was “outside 16 the range of the evidence.”). Rookaird v. Bnsf Ry. Co., No. C14-176RSL, 2016 WL 17 8260464, at *9 (W.D. Wash. Sept. 2, 2016), aff’d in part, vacated in part, remanded, 18 908 F.3d 451 (9th Cir. 2018) (reducing front pay award to two years); Glenn-Davis v. 19 City of Oakland, No. C 02-2257 SI, 2008 WL 410239, at *4 (N.D. Cal. Feb. 12, 2008) 20 (awarding three years of front pay). 21 The Court hereby REMITS the front pay award to $610,200 and DENIES 22 Defendant’s request for a new trial on damages, conditioned on Plaintiff’s acceptance of 23 the remittitur. 24 ii. Non-Economic Damages 25 Albertsons also asks the Court to remit the jury’s $750,000 award for emotional 26 distress damages. Specifically, Albertsons contends that Ms. Johnson’s testimony, 27 corroborated only by her sister and daughter, was the sole evidence presented to the jury 1 concerning her emotional distress, and that the jury’s award was outside the range of the 2 evidence. Dkt. # 101 at 11. The Court agrees. 3 Substantial emotional distress damages awards need not be supported by 4 “objective” evidence. Instead, subjective testimony of the plaintiff, corroborated by 5 others (including relatives), may be sufficient. See Passantino, 212 F.3d at 513–14; 6 Bunch v. King County Dept. of Youth Servs., 155 Wn.2d 165, 181 (2005). Likewise, the 7 emotional distress need not be “severe” to support a jury’s award for emotional 8 damages. Zhang v. Am. Gem. Seafoods, Inc., 339 F.3d 1020, 1040 (9th Cir. 2003); see 9 also Passantino, 212 F.3d at 513 (“Washington law contains no severity requirement as 10 a precondition to awarding compensatory damages.”). That said, the award must still be 11 supported by the injury suffered. See Hill v. GTE Directories Sales Corp., 71 Wash. 12 App. 132, 140 (1993) (“Damages need not be proved with mathematical certainty but 13 must be supported by competent evidence.”) (citing Rasor v. Retail Credit Co., 87 14 Wash. 2d 516, 530–31 (1976). 15 At trial, Plaintiff testified, and her sister and daughter corroborated, that she 16 experienced distress as a result of Albertsons’ retaliatory conduct. Ms. Johnson testified 17 that she was humiliated and suffered a loss of self-esteem. Ms. Johnson’s sister 18 described Ms. Johnson as “broken.” On this basis, the jury awarded Ms. Johnson 19 $750,000 in emotional distress damages. Although the Court agrees that the evidence 20 was sufficient to support an award of emotional distress damages, the ultimate award of 21 $750,000 is grossly excessive and outside the range of the evidence. First, the period in 22 which the retaliatory conduct occurred was relatively short. Second, while the Court 23 does not wish to discount Ms. Johnson’s suffering, the evidence presented at trial 24 supports only a “garden variety” emotional distress claim. Hill v. GTE Directories 25 Sales Corp., 71 Wash. App. 132, 140, 856 P.2d 746, 751 (1993) (reducing excessive 26 emotional distress damages award in light of “meager evidence.”); Paul v. Asbury 27 Automotive Group, LLC, 2009 WL 188592 (D. Or. Jan. 23, 2009) (remitting awards of 1 $1.9 million and $2.1 million to $150,000 each); Longfellow v. Jackson Cty., 2007 WL 2 682455, at *2-3 (D. Or. Feb. 28, 2007) (remitting emotional distress damages award 3 from $360,000 to $60,000). Accordingly, the Court hereby REMITS the non-economic 4 damages award to $200,000 and DENIES Defendant’s request for a new trial on 5 damages, conditioned on Plaintiff’s acceptance of the remittitur. 6 iii. Punitive Damages 7 Punitive damages are available under Title VII to prevent and remediate 8 unlawful conduct. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 545–46 (1999). 9 Punitive damages may be awarded in discrimination cases where the plaintiff shows that 10 the employer knowingly or recklessly acted in violation of federal law. Id.; 42 U.S.C. § 11 1981a(b)(1). Thus, a plaintiff must show that when the employer fired her, it acted “in 12 the face of a perceived risk that its actions will violate federal law.” Kolstad, at 536. 13 Even if the plaintiff makes this showing, the employer may nonetheless escape punitive 14 damages if it can show that the challenged actions were not taken by senior managers 15 and were contrary to the employer’s good faith implementation of an effective 16 antidiscrimination policy. Id. at 546. 17 The parties appear to agree that federal law caps Ms. Johnson’s punitive damages 18 award at $300,000. Dkt. # 101 at 13; Dkt. # 102 at 13. Albertsons asks the Court to 19 reduce this amount to $0 on the grounds that there is “no evidence” to support a finding 20 of “malice or reckless indifference” on the part of Albertsons. Dkt. # 101 at 13. 21 Albertsons makes much of the fact that Mr. Schroeder was apparently unaware of any 22 of Ms. Johnson’s complaints of gender discrimination prior to her January 2018 email to 23 Bob Miller and that shortly after learning of the email, Albertsons retained Rebecca 24 Dean to perform an investigation into Ms. Johnson’s complaints. Dkt. # 101 at 13. But 25 this is not the silver bullet Albertsons seems to believe it is. 26 First, the question of when Mr. Schroeder became aware of Ms. Johnson’s 27 complaints was disputed at trial with both sides offering conflicting testimony on this 1 issue. Second, it is entirely possible that the jury could have concluded that Albertsons’ 2 decision to retain Ms. Dean was merely a means to shield itself from future liability. 3 Swinton v. Potomac Corp., 270 F.3d 794, 815 (9th Cir. 2001) (“A jury would, of course, 4 be free to discount such evidence on the grounds that the remedial action undertaken by 5 the employer is nothing but a sham concocted by defense attorneys as a strategy to 6 avoid punitive damages.”). Overall, while this Court might have reached a different 7 result, there was a basis for the jury to find that Albertsons acted in the face of a 8 perceived risk that it was violating federal law by firing Ms. Johnson in retaliation for 9 reporting gender discrimination. See Kolstad, 527 U.S. at 546. 10 Because Albertsons has not established that the punitive damages award was 11 grossly excessive or unsupported by the evidence, Albertsons’ request to remit the 12 punitive damages award to zero is DENIED. The Court hereby REMITS the punitive 13 damages award to the statutory cap of $300,000. 14 C. Motion for Attorneys’ Fees 15 Plaintiff seeks an award of attorneys’ fees and costs in the amount of 16 $1,051,989.63. Dkt. # 104 at 2. Plaintiff also requests a “contingency multiplier” of 17 2.0, increasing the award to $1.947.43938. Dkt. # 104 at 8. Finally, Plaintiff requests 18 an additional 64.55 hours in connection with litigating these post-trial motions. Dkt. # 19 129 at 7. 20 A district court employs a two-step process to calculate a reasonable fee award. 21 Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the court calculates 22 the lodestar figure, which represents the number of hours reasonably expended on the 23 litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 24 433 (1983). Second, the court determines whether to increase or reduce that figure 25 based on several factors that are not subsumed in the lodestar calculation. See Kelly v. 26 Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016); see also Kerr v. Screen Guild Extras, 27 Inc., 526 F.2d 67, 70 (9th Cir. 1975). The lodestar figure is presumed reasonable. Van 1 Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000); Pham v. City 2 of Seattle, 159 Wash.2d 527, 151 P.3d 976 (2007) (equivalent process under state law). 3 i. Reasonableness of Hourly Rate 4 Determining a reasonable hourly rate requires the Court to consider the 5 attorney’s usual fee, the attorney’s level of skill and experience, the amount of the 6 recovery, and the “undesirability of the case.” Bowers v. Transamerica Title Ins. Co., 7 100 Wash.2d 581 (1983). The Court can also consider the customary hourly rates in the 8 local area, the effect of the case on the attorney’s availability for other work, whether 9 the case is particularly complex or difficult, and a host of other factors. The Court may 10 also rely on its own knowledge and experience regarding fees charged in the area in 11 which it presides. Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). 12 Albertsons summarily asserts that the hourly rates claimed by Plaintiff’s counsel 13 “far outstrip[]” even the maximum range of a reasonable rate for a “partner-level 14 counsel.” Dkt. # 123 at 10. However, based on Plaintiff’s expert declaration, this 15 Court’s familiarity with legal fees in the Western District of Washington, and other 16 similar court awards, the Court finds counsel’s hourly rates to be reasonable. Erickson 17 v. Biogen, Inc., No. C18-1029-JCC, 2020 WL 885743, at *8 (W.D. Wash. Feb. 24, 18 2020) (noting an experienced plaintiff’s lawyer practicing employment law in the 19 Seattle area charges between $525 and $650 per hour). 20 ii. Reasonableness of Hours 21 As with the hourly rate, the party seeking fees has the “burden of showing the 22 time spent and that it was reasonably necessary to the successful prosecution of” the 23 case. Frank Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1557 (9th Cir. 24 1989). This requires evidence supporting the requested hours. Hensley, 461 U.S. at 25 433. The court excludes those hours that are not reasonably expended because they are 26 “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. “The 27 1 essential goal in shifting fees . . . is to do rough justice, not to achieve auditing 2 perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011). 3 Recognizing that the district court is generally in the best position to determine 4 reasonable fees and that multi-year litigation necessarily causes duplication of effort, the 5 Ninth Circuit approves of “across-the-board” percentage cuts in the number of hours or 6 final figure when appropriate. Moreno v. City of Sacramento, 534 F.3d 1106, 1112–13 7 (9th Cir. 2008); Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992) (“[W]hen 8 faced with a massive fee application the district court has authority to make across-the- 9 board percentage cuts either in the number of hours claimed or in the final lodestar 10 figure as a practical means of trimming fat from a fee application.”). 11 Plaintiff’s counsel states that they spent 1,681 hours on this case, for a total of 12 $1,069,225.25. See Dkt. ## 107, 110. Albertsons argues that the fee award should be 13 dramatically reduced because many of the entries are excessive, duplicative, or bill for 14 time that is not reimbursable. See generally Dkt. # 123. The Court agrees that some 15 reductions are necessary. 16 1. Excessive or duplicative entries 17 As an initial matter, the Court has concerns regarding the amount of time spent 18 on many of the tasks. For example, the billing records indicate that Plaintiff’s counsel 19 (two attorneys) spent over 70 hours on motions in limine, approximately 115 hours 20 responding to Albertsons’ motion for summary judgment, and over 90 hours on trial 21 exhibits (not including substantial paralegal review). See generally Dkt. # 107-1, 22 Dkt. # 110-1. Additionally, several of the time entries appear duplicative and 23 inefficient. Many of the documents reviewed by Ms. Mindenbergs appear to have also 24 been reviewed by her paralegal, although often it is difficult to tell given the extensive 25 block-billing (discussed below). See e.g., Dkt. # 107-1 at 5; Dkt. # 107-1 at 24-25. For 26 example, Ms. Mindenbergs and her paralegal both spent a considerable amount of time 27 reviewing trial exhibits. Compare Dkt. # 107-1 at 31 and Dkt. # 107-1 at 13; see also 1 Dkt. # 107-1 at 19; Dkt. # 107-1 at 2 (duplicate entries for researching Albertsons and 2 Safeway). And it appears that Mr. Needle and Ms. Mindenbergs also spent a significant 3 amount of time “digesting” the same depositions. See e.g., Dkt. 107-1 at 5 4 (Mindenbergs entry for digesting Ennis deposition); Dkt. 110-1 at 8 (Needle entry for 5 digesting Ennis deposition); Dkt. # 107-1 at 5-6 (Mindenbergs block-billed entries for 6 digesting Backus deposition); Dkt. # 110-1 at 8 (Needle entries for digesting Backus 7 deposition). 8 After a cumulative review of the lengthy billing records, the Court is convinced 9 that counsel could have spent substantially less time on many of these tasks if they had 10 made reasonable efforts to work efficiently and reduce duplicative work. Accordingly, 11 Court finds it necessary to reduce Ms. Mindenbergs requested hours to 919.45 and Mr. 12 Needle’s requested hours to 553.13. The Court believes this will adequately 13 compensate counsel for their work on this case while addressing the above concerns. 14 2. Travel time 15 Counsel also seek their full hourly rate in connection with travel time. Mr. 16 Needle billed several hours for travel to and from the courthouse during trial (Dkt. # 17 110-1 at 9), while Ms. Mindenbergs billed several hours for travel to and from meetings 18 or depositions (Dkt. # 107-1 at 9, 13). For each of these entries, there is no indication 19 that substantive work was performed. Johnson v. Metro-Goldwyn-Mayer Studios Inc., 20 No. C17-541RSM, 2018 WL 5013764, at *8 (W.D. Wash. Oct. 16, 2018) (reducing fee 21 award where billing records did not indicate that substantive work was performed 22 during travel time). Since Plaintiff’s counsel has not pointed to travel time wherein 23 legal work was performed, the travel time entries will be compensated at half the rate. 24 3. Clerical work 25 Albertsons next seeks to exclude several “clerical” entries, including all paralegal 26 hours at trial. Dkt. # 123 at 13. A court can award fees where a paralegal performs 27 legal (as opposed to clerical) work, does so under the supervision of an attorney, and is 1 qualified “to perform substantive legal work.” Absher Constr. Co. v. Kent Sch. Dist., 79 2 Wash. App. 841, 917 P.2d 1086, 1088 (1995). Paralegals (and attorneys) are not 3 entitled to compensation for nonlegal work. See id. at 1089 (denying compensation for 4 time spent preparing pleadings, preparing copies, and similar tasks; granting 5 compensation for “time spent preparing the briefs and related work”). 6 A review of the time entries shows that many of the entries are either explicitly 7 for clerical work or give the court no basis to determine that the paralegal in question 8 performed legal work. For example, Plaintiff seeks compensation for tasks like 9 “preparing exhibits,” “organize exhibits,” “update exhibits,” “reorganizing discovery 10 file,” “prep Johnson Exhibit Book,” and “make copies of ESI documents.” See 11 generally Dkt. # 107-1; Dkt. # 110-1. Plaintiff also seeks fees for her paralegal to 12 attend courtroom technology training. Dkt. # 107-1 at 32. This problem is intensified 13 by the use of “block-billing.” For example, one entry for 5.5 hours states: “[c]ontinue 14 preparing declaration; extract deposition pages for exhibits; start preparing notebook for 15 judge; update Response to Motion.” Dkt. # 107-1 at 30. This makes the Court’s review 16 of the amount of time spent on particular activities more difficult and justifies a 17 reduction of the hours billed. Welch v. Metro. Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 18 2007). After review of the paralegal entries, the Court finds that approximately 50% of 19 them describe time spent on non-legal work or on work that the court cannot determine 20 is legal. Accordingly, the Court will reduce the requested paralegal fees by 50% to 21 $69,812.75. 22 iii. Discount for unsuccessful claims 23 Where a plaintiff succeeds on only some of her claims, the court must consider 24 (1) whether the unsuccessful claims were related to the claims on which she succeeded, 25 and (2) whether the plaintiff achieved “a level of success that makes the hours 26 reasonably expended a satisfactory basis for making a fee award.” Schwarz v. Sec’y of 27 Health & Human Servs., 73 F.3d 895, 901 (9th Cir. 1995). Albertsons argues that 1 Plaintiff’s fee award should be reduced by 50% because she only succeeded on two of 2 her four claims. Dkt. # 123 at 4. Plaintiff contends that because her retaliation and 3 gender discrimination claims involved a common core of facts, the fee award should not 4 be reduced at all. Dkt. # 129 at 2. 5 Plaintiff’s successful retaliation claims clearly shared a “common core” of facts 6 with her unsuccessful gender discrimination claims and, as such, a 50% reduction is not 7 appropriate. That said, the amount of the attorneys’ fees should reflect that the Plaintiff 8 obtained significant success on her retaliation claim but did not prevail on her gender 9 discrimination claims, likely resulting in a lower recovery. McCown v. City of Fontana, 10 565 F.3d 1097, 1104 (9th Cir. 2009) (holding that “a comparison of damages awarded 11 to damages sought” is relevant to a determination of the reasonable fee award). 12 Accordingly, a moderate reduction is appropriate. When a reduction in the fee award is 13 appropriate, the court “may attempt to identify specific hours that should be eliminated, 14 or it may simply reduce the award to account for the limited success.” Hensley, 461 15 U.S. at 436–37. Here, the Court finds that an overall 15% reduction in attorneys’ fees is 16 appropriate to reflect Plaintiff’s lack of success on two related, but significant claims. 17 iv. Contingent Multiplier 18 Under Washington state law, a plaintiff may move for a multiplier of attorneys’ 19 fees based on either the contingent nature of success or the quality of the work 20 performed. Chuong Van Pham v. City of Seattle, Seattle City Light, 151 P.3d 976, 983 21 (Wash. 2007). Such an adjustment “should be reserved for exceptional cases where the 22 need and justification are readily apparent.” Xieng v. Peoples Nat’l Bank of 23 Washington, 63 Wash. App. 572, 587 (1991) (quotation and citation omitted), aff’d 120 24 Wash.2d 512, 844 P.2d 389 (1993). Here, Ms. Johnson asks the Court to multiply the 25 lodestar by 2.0 because the case was “difficult and risky.” Dkt. # 104 at 10. 26 Without downplaying the risk that Plaintiff’s counsel took on, the Court does not 27 believe that this case was of sufficiently high risk or difficulty to warrant a multiplier. 1 Plaintiff counsel’s hourly rates are consistent with those of other lawyers in the area and 2 inherently account for any risk associated with litigating this case. Although Plaintiff’s 3 prospect of recovery was by no means certain, the risks were not particularly unique for 4 cases of this type—most of which are taken on contingency—and the Court does not 5 believe the law requires a positive multiplier in every case with a contingent fee and 6 skilled counsel. 7 Accordingly, Plaintiff’s motion for attorneys’ fees is GRANTED in part and 8 DENIED in part. Accounting for all of the aforementioned reductions, the Court 9 awards Plaintiff’s counsel $726,052.47 in attorneys’ fees and $40,726.88 in costs. 10 D. Motion for Adverse Tax Consequences 11 Ms. Johnson requests a supplemental judgment of $590,918.31 “gross up” to 12 cover the taxes on her award. Dkt. # 119 at 2. Albertsons argues that Ms. Johnson is 13 not entitled to a gross up because her proposed method of calculating the gross up is 14 “deficient.” Dkt. # 126 at 3-4. To the extent that the Court does decide to award a gross 15 up, Albertsons asks the Court to adopt its calculation. Dkt. # 126 at 4. 16 Both Title VII and the WLAD allow a court to “gross up” an award to account 17 for tax consequences. See Clemons v Century Link, 874 F.3d 1113 (9th Cir. 2017) and 18 Blaney v. International Association of Machinsts, 151 Wn.2d 203 (2004). The decision 19 whether to award a gross up is within the sound discretion of the court, and a plaintiff is 20 not presumptively entitled to one. Clemons, at 1117 (observing that “[t]here may be 21 many cases where a gross up is not appropriate for a variety of reasons, such as the 22 difficulty in determining the proper gross up or the negligibility of the amount at 23 issue”). 24 Here, Ms. Johnson seeks $590,918.31 in adverse tax consequences based on 25 forensic economist Dr. Paul Torelli’s calculations. See Dkt. # 120. Albertsons presents 26 a competing declaration from forensic economist William E. Partin who criticizes Dr. 27 Torelli’s methodology and calculates the adverse tax consequences at $ 452,037. See 1 Dkt. # 127. In reply, Ms. Johnson submits a second declaration from Dr. Torelli, who 2 addresses these criticisms and explains why they are not well-founded. Dkt. # 133. 3 Overall, the Court finds that a tax gross up is appropriate. Additionally, having 4 reviewed the three reports, the Court finds Dr. Torelli’s calculation persuasive. 5 However, assuming Plaintiff accepts the remittitur, the damages award has now 6 changed and, as a result, any tax gross up must be recalculated. Therefore, the Court 7 GRANTS Plaintiff’s motion for adverse tax consequences contingent on Plaintiff’s 8 submission of a new calculation of the gross up. 9 E. Motion for Prejudgment Interest 10 Finally, Ms. Johnson seeks prejudgment interest on her past economic damages. 11 Dkt. # 119 at 4. Albertsons contests the award of prejudgment interest and Plaintiff’s 12 requested rate. The Ninth Circuit has recognized that awards of prejudgment interest 13 are appropriate in federal discrimination cases in order to secure “complete justice.” 14 Clemens v. Centurylink Inc., 874 F.3d 1113, 1116–17 (9th Cir. 2017). These decisions 15 “are left to the sound discretion of the district court.” Id. at 1117. 16 In most cases, the interest rate under 28 U.S.C. § 1961 is likely appropriate, but 17 in certain cases a higher rate may be appropriate. See Grosz-Salomon v. Paul Revere 18 Life Ins. Co., 237 F.3d 1154, 1163–64 (9th Cir. 2001). For example, in Blankenship v. 19 Liberty Life Assur. Co. of Boston, the Ninth Circuit held that the district court did not 20 abuse its discretion by awarding prejudgment interest at a rate of 10.01% where the 21 plaintiff proved that the money would have otherwise remained invested in a fund with 22 that rate of return. Blankenship v. Liberty Life Assur. Co. of Boston, 486 F.3d 620, 628 23 (9th Cir. 2007). 24 Ms. Johnson argues that she is entitled to a 2.06% rate based off the “rate of 25 return” on her 401(k) account. Dkt. # 119 at 5. Specifically, she claims that because 26 she was forced to withdraw $320,884.78 from her retirement account to support herself, 27 she is entitled to the 2.06% rate on her full backpay award. Id.; Dkt. # 121. But Ms. 1 Johnson is not seeking prejudgment interest on the amount withdrawn and she does not 2 offer any evidence that timely payment of her past economic damages would, or even 3 could, have been invested into her retirement account and thereby earned 2.06% 4 interest. The evidence simply does not support a higher rate of prejudgment interest on 5 the entire measure of economic damages. See Hanson v. Cty. of Kitsap, Wash., No. 6 C13-5388RJB, 2015 WL 3965829, at *9 (W.D. Wash. June 30, 2015) (prejudgment 7 interest not awarded where plaintiff failed to provide credible calculation of 8 prejudgment interest). Thus, the Court will award $14,000 in prejudgment interest at 9 the statutory rate pursuant to 28 U.S.C. § 1961. 11 For the above reasons, Defendant’s motion for a new trial or, in the alternative, 12 remittitur, is GRANTED in part and DENIED in part as follows: 13 1. Defendant’s request for a new trial is DENIED. 14 2. Defendant’s request for remittitur is GRANTED. The Court hereby 15 REMITS the front pay award to $620,000, the emotional distress 16 damages award to $200,000 and the punitive damages award to the 17 statutory cap of $300,000. 18 3. Plaintiff will notify the Court within 14 days of the date of this Order 19 whether it accepts or rejects the remittitur. Defendant’s motion for a new 20 trial on damages is DENIED, conditioned on Plaintiff’s acceptance of the 21 remittitur. If Plaintiff rejects the remittitur, the Court will grant a new 22 trial on damages. 23 Plaintiff’s motion for attorneys’ fees is GRANTED in part and DENIED in part. 24 1. Plaintiff is AWARDED $726,052.47 in attorneys’ fees and $40,726.88 in 25 costs. 26 27 1 Plaintiff’s motion for adverse tax consequences and prejudgment interest is GRANTED 2 in part and DENIED in part. 3 1. Plaintiff is AWARDED $14,000 in prejudgment interest. 4 2. If the remittitur is accepted, Plaintiff is ORDERED to submit new 5 calculations of the gross up necessary to offset the updated damages 6 award. 7 8 DATED this 2nd day of July, 2020. 9 A 10 11 The Honorable Richard A. Jones 12 United States District Judge 13

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