Robinson v. District of Columbia

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARK E. ROBINSON, : : Plaintiff, : Civil Action No.: 15-444 (RC) : v. : Re Document Nos.: 81, 85, 86 : DISTRICT OF COLUMBIA, : : Defendant. :

MEMORANDUM OPINION

DENYING DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW; DENYING DEFENDANT’S MOTION TO ALTER OR AMEND JUDGMENT; GRANTING IN PART PLAINTIFF’S SUPPLEMENTAL MOTION FOR ATTORNEYS’ FEES

I. INTRODUCTION

After a three day trial, a jury found that Defendant the District of Columbia discriminated

against Plaintiff Mark Robinson on the basis of race when it deprived him of certain overtime

opportunities within the District’s Metropolitan Police Department (“MPD”). This

discrimination violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a). The

jury awarded Mr. Robinson $750 in compensatory damages. After a round of post-trial briefing,

this Court awarded Mr. Robinson injunctive relief, back pay, and attorneys’ fees.

The District has filed two post-judgment motions. First, the District moves for judgment

as a matter of law, arguing that no reasonable jury could conclude that Mr. Robinson suffered an

adverse employment action required for Title VII liability. Second, the District moves to alter

the Court’s order granting Mr. Robinson injunctive relief, back pay, and attorneys’ fees, arguing

that the relief is “manifestly unjust” in light of the governing law and the evidence presented in

this case. The Court concludes that the jury could reasonably find that Mr. Robinson suffered an

adverse employment action. The Court also concludes that its post-trial relief is supported by the record and is necessary to fulfill Title VII’s mandate. The Court thus denies the District’s

motions, and grants Mr. Robinson additional attorneys’ fees.

II. BACKGROUND

The Court’s prior memorandum opinions in this case contain detailed background

summaries. See Robinson v. District of Columbia, 341 F. Supp. 3d 97, 103–05 (D.D.C. 2018);

Robinson v. District of Columbia, 275 F. Supp. 3d 95, 99–101 (D.D.C. 2017). The Court will

briefly recount the relevant background here. Mr. Robinson is a sworn MPD officer. See Trial

Tr. 77:23–78:1, Mar. 12, 2018, ECF No. 83 (test. of Mark Robinson). He spent several years in

MPD’s Automated Traffic Enforcement Unit (“ATEU”), a division created to organize traffic

camera photographs, analyze evidence of traffic violations, and issue tickets. See id. 50:10–22

(test. of Sharion Garner), 81:3–12 (test. of Mark Robinson). Assignment to the ATEU was

apparently lucrative; Mr. Robinson earned significant overtime pay while in the division. See id.

102:4–19 (test. of Mark Robinson).

In late 2011, Mr. Robinson was transferred from the ATEU to MPD’s Special Events

Branch (“SEB”), ostensibly because MPD was “civilianizing” the ATEU. 1 See Trial Tr. 8:2–13

(Mar. 13, 2018) (test. of Mark Robinson). At this point, although Mr. Robinson was no longer

working full time in the ATEU, he could still earn overtime hours through the ATEU Overtime

Program. See id. 89:13–91:7 (test. of Lisa Sutter). Between February 2014 and May 2015, Mr.

Robinson attempted to participate in the Program. See id. 15:17–16:7 (test. of Mark Robinson).

The Program manager, Lisa Sutter, denied his requests. See id. 38:12–25.

1 Civilianization is a process in which sworn police officers are replaced with civilian staff who have limited or zero police powers, and who provide administrative or specialist support to police functions.

2 Believing these denials to be discriminatory, and receiving no recourse through

administrative channels, Mr. Robinson brought this case in 2015. See generally Compl., ECF

No. 1-3, at 5. He alleged that the District violated Title VII when it transferred him out of the

ATEU, denied his request for reassignment to the ATEU, and denied him access to the ATEU

Overtime Program between February 2014 and May 2015, all because of his race or in retaliation

for complaining about racial discrimination. See generally id. After several rounds of briefing,

the case proceeded to trial on Mr. Robinson’s claim that he was blocked from the ATEU

Overtime Program because of discrimination or retaliation. See Robinson, 275 F. Supp. 3d at

104–05. The Court dismissed Mr. Robinson’s retaliation claim at the end of his case, leaving

only Mr. Robinson’s discrimination claim. See Fed. R. Civ. P. 50(a)(2); Min. Entry (Mar. 13,

2018). On that claim, the jury found that the District discriminated against Mr. Robinson by

denying him ATEU overtime opportunities, and it awarded him $750 in damages. See Verdict

Form, ECF No. 56.

The jury’s verdict has precipitated contentious post-trial litigation. First, Mr. Robinson

filed motions for back pay, injunctive relief, and attorneys’ fees, which the Court granted in part.

See Robinson, 341 F. Supp. 3d at 124. Now, the District has struck back. It has filed motions for

judgment as a matter of law, and to alter or amend the post-trial relief. Mr. Robinson opposes

these motions and seeks additional attorneys’ fees. All three motions are ripe for the Court’s

consideration. It will address them in order.

III. MOTION FOR JUDGMENT AS A MATTER OF LAW

First, the Court considers the District’s motion, under Federal Rule of Civil Procedure

50(b)(3), for judgment as a matter of law. See Def.’s Mot. J. Matter of Law, ECF No. 85. Mr.

Robinson contests this motion on the merits, but also raises a procedural challenge. A brief

3 summary of Rule 50 procedure is thus in order. Rule 50(a) allows a party in a jury trial to move

for judgment as a matter of law after “a party has been fully heard on an issue” and “before the

case is submitted to the jury.” Fed. R. Civ. P. 50(a). If the Court finds that “a reasonable jury

would not have a legally sufficient evidentiary basis” to find for the nonmoving party on that

issue, then the Court may grant the motion for judgment as a matter of law on any “claim or

defense that, under the controlling law, can be maintained or defeated only with a favorable

finding on that issue.” Id. If the Court does not grant the motion, however, the Court “is

considered to have submitted the action to the jury subject to the court’s later deciding the legal

questions raised by the motion.” Fed. R. Civ. P. 50(b).

After the jury renders its verdict, Rule 50(b) allows the moving party, “[n]o later than 28

days after the entry of judgment,” to renew its motion for judgment as a matter of law. Id.

“Because the Rule 50(b) motion is only a renewal of the preverdict motion, it can be granted

only on grounds advanced in the preverdict motion.” Fed. R. Civ. P. 50 Advisory Committee

Note to 2006 Amendment; accord Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)

(“A motion under Rule 50(b) is not allowed unless the movant sought relief on similar grounds

under Rule 50(a) before the case was submitted to the jury.”).

In ruling on a Rule 50(b) motion, the Court “do[es] not . . . lightly disturb a jury verdict.”

Radtke v. Lifecare Mgmt. Partners, 795 F.3d 159, 163 (D.C. Cir. 2015) (ellipsis in original)

(quoting Muldrow v. Re-Direct, Inc., 493 F.3d 160, 165 (D.C. Cir. 2007)); see also Breeden v.

Novartis Pharm. Corp., 646 F.3d 43, 53 (D.C. Cir. 2011) (“[J]udgment as a matter of law is

‘highly disfavored’ because it ‘intrudes upon the rightful province of the jury’” (quoting Boodoo

v. Cary, 21 F.3d 1157, 1161 (D.C. Cir. 1994))). The Court must resolve all reasonable

inferences in the nonmovant’s favor. See Breeden, 646 F.3d at 53. The Court cannot substitute

4 its view for the jury’s view, assess witnesses’ credibility, or weigh the evidence. See Scott v.

District of Columbia, 101 F.3d 748, 753 (D.C. Cir. 1996). And “[e]ven if the Court finds the

evidence that led to the jury verdict unpersuasive, or that it would have reached a different result

if it were sitting as the fact-finder, that is not a basis for overturning the jury’s verdict and

granting judgment as a matter of law.” Pitt v. District of Columbia, 558 F. Supp. 2d 11, 15–16

(D.D.C. 2008) (citing 9 Moore’s Federal Practice § 50.60[1] at 50–87 (3d ed. 2002)). The jury’s

verdict will stand if the evidence in support is “‘significantly probative’ and ‘more than merely

colorable.’” Scott, 101 F.3d at 753 (quoting Ferguson v. F.R. Winkler GMBH & Co. KG, 79

F.3d 1221, 1224 (D.C. Cir. 1996)). In other words, “[j]udgment as a matter of law is appropriate

only if the evidence and all reasonable inferences that can be drawn therefrom are so one-sided

that reasonable men and women could not have reached a verdict in plaintiff’s favor.” Muldrow,

493 F.3d at 165 (quoting McGill v. Muñoz, 203 F.3d 843, 845 (D.C. Cir. 2000)).

Here, the jury found that the District discriminated against Mr. Robinson by denying him

the opportunity to participate in the ATEU Overtime Program. Under Title VII, “the two

essential elements of a discrimination claim are that (i) the plaintiff suffered an adverse

employment action (ii) because of the plaintiff’s race, color, religion, sex, national origin, age, or

disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (citing 42 U.S.C. §

2000e-16(a)). The District does not challenge the jury’s finding on the second element; that Mr.

Robinson was deprived of access to the ATEU Overtime Program because of his race. Rather,

the District focuses on the first element. It argues that no reasonable jury could have found that

Mr. Robinson suffered an adverse employment action. See Def.’s Mem. Supp. Mot. J. Matter of

Law (“Def.’s Rule 50 Mem.”) at 1, ECF No. 85.

5 “An adverse employment action is ‘a significant change in employment status, such as

hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a

decision causing significant change in benefits.’” Jones v. Castro, 168 F. Supp. 3d 169, 174

(D.D.C. 2016) (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009)). “For

employment actions that do not obviously result in a significant change in employment status . . .

an employee must go the further step of demonstrating how the decision nonetheless caused . . .

an objectively tangible harm.” Id. (quoting Douglas, 559 F.3d at 553). In such a case, the court

must determine “whether the alleged harm is unduly speculative.” Douglas, 559 F.3d at 553.

“Showing that harm is not speculative need not be a difficult task, and it often is not.” Id.

The denial of overtime opportunities is the type of employment action that typically

requires a showing of objectively tangible harm. This is because while overtime comes with “a

tangible monetary advantage,” it “is not universally regarded as desirable.” Bell v. Gonzales,

398 F. Supp. 2d 78, 97 (D.D.C. 2005). Thus, a lost opportunity for overtime is considered an

adverse action only when it is “associated with a fundamental alteration in the conditions of

employment, such as a transfer or reassignment of duties that has a significant adverse impact on

overtime opportunities, and the plaintiff demonstrates that ‘[he] in the past sought opportunities

for overtime pay or it was otherwise known to defendant that [he] desired such opportunities.’”

Caul v. U.S. Capitol Police, No. 15-1243, 2016 WL 2962194, at *9 (D.D.C. May 19, 2016)

(quoting Sims v. District of Columbia, 33 F. Supp. 3d 1, 7 (D.D.C. 2014)); see also Bell, 398 F.

Supp. 2d at 97. “The duration and frequency of the denial of overtime opportunities are both

significant factors in evaluating the adversity presented by such a discrimination claim.” Id.

The District concedes that “it is undisputed that [Mr. Robinson] sought overtime

opportunities in the ATEU Overtime Program and that the District knew [he] desired these

6 opportunities.” Def.’s Rule 50 Mem. at 9. It puts forth two reasons, however, why a reasonable

jury still could not find that Mr. Robinson suffered an adverse employment action. First, the

District contends that Mr. Robinson “failed at trial to present any evidence about how many

hours he earned in the ATEU Overtime Program before his exclusion in February 2014.” Def.’s

Rule 50 Mem. at 9. Second, the District contends that Mr. Robinson “did not establish that he

was unable to earn the same amount of overtime hours in the SEB” as he would have through the

ATEU, absent discrimination. Id. Without this evidence, according to the District, a reasonable

juror could not have concluded that Mr. Robinson “suffered an objectively tangible harm”

necessary for Title VII liability. Id.

As an initial matter, Mr. Robinson argues that the District’s motion is “procedurally

barred” because it raises arguments not raised in the District’s Rule 50(a) trial motions. Pl.’s

Opp’n Def.’s Mot. J. Matter of Law (“Rule 50 Opp’n”) at 2, ECF No. 91. It is true that “Rule

50(b) permits only the ‘renewing’ of arguments made in prior Rule 50(a) motions.” Campbell v.

District of Columbia, 894 F.3d 281, 286 (D.C. Cir. 2018) (citing Fed. R. Riv. P. 50(b); Exxon

Shipping, 554 U.S. at 485 n.5). But the District complied with that rule here. The trial record,

which Mr. Robinson admits he did not have when drafting his brief, see Rule 50 Opp’n at 4 n.3,

bears this out. After Mr. Robinson’s case-in-chief, the District argued that Mr. Robinson “failed

to prove an adverse employment action” because (1) he put forth minimal evidence “about what

overtime that was actually certified operator overtime”—i.e. ATEU Overtime Program hours—

“that he worked” before the discrimination period; and (2) “he actually testified that he was

never denied overtime shifts in the [SEB].” Trial Tr. 72:22–73:11, Mar. 13, 2018. After the

parties rested their cases, the District argued that Mr. Robinson failed to “show an adverse

action” because the District’s evidence “establishe[d] that he had opportunities to work overtime

7 in the [SEB] that could have been equal to what he claims to have worked when he was in the

ATEU.” Trial Tr. 39:6–14, Mar. 14, 2018. Thus, both at trial and in its current motion, the

District argued that Mr. Robinson failed to show, more than speculatively, that he was deprived

of overtime hours he would have earned but for the District’s discrimination. While the District

may not have phrased its arguments identically at trial and in its current motion, the District

satisfied Rule 50’s function, “which is to provide notice of legal arguments and prevent counsel

from sandbagging an opposing party by waiting until after entry of the judgment to raise a new

argument that requires new evidence to be rebutted.” Campbell, 894 F.3d at 287 (citing Teneyck

v. Omni Shoreham Hotel, 365 F.3d 1139, 1149 (D.C. Cir. 2004)). The District’s Rule 50(b)

arguments were properly preserved.

Having overcome that procedural challenge, the Court turns to the merits. The District’s

two core arguments raise one core question: Could a reasonable jury conclude, based on the

evidence presented, that the District caused a “significant adverse impact” on Mr. Robinson’s

overtime opportunities? The answer is yes.

At trial, Mr. Robinson described the plentiful overtime opportunities available to him

through the ATEU Overtime Program. He testified, and the District did not contradict, that

ATEU Overtime Program shifts were readily available twenty-four hours a day, six days a week.

See Trial Tr. 23:9–14, Mar. 13, 2018 (test. of Mark Robinson). Participating officers could plan

their own overtime schedules in advance, see id. 27:16–23, or sign up electronically for

“standby” shifts, without the need for supervisor approval, see id. 29:24–30:11. Each shift lasted

for eight hours. See id. 47:4–15.

Overtime in the SEB, on the other hand, came “in spurts,” “not 24 hours a day,” and it

was “not offered 6 days a week.” Id. at 21:10–20. It was also a combination of mandatory and

8 voluntary overtime, depending on event timing and staffing decisions. See Trial Tr. 19:5–20,

Mar. 14, 2019 (test. of Robert Glover). And SEB overtime shifts appear to have lasted for less

than eight hours. See id. at 13:24–14:1 (stating than an SEB officer could earn “six to seven

hours of overtime for each presidential movement”). Mr. Robinson testified that within those

constraints, he earned SEB overtime “as much as [he] could;” he “worked the overtime that was

available.” Trial Tr. 25:17–25, Mar. 13, 2019 (test. of Mark Robinson).

Yet, according to Mr. Robinson, he would have earned hours in the ATEU Overtime

Program “above and beyond” what he earned through the SEB. Id. at 26:9–12. He explained

that this was because the ATEU Overtime Program simply provided more overtime opportunities

and more flexibility. See id. at 27:2–23. And this was borne out by the record: Mr. Robinson

earned over 1,000 ATEU overtime hours in 2010, see Pl.’s Mot. Back Pay Ex. 2 at 21, ECF No.

70-2, and only 525.75 SEB overtime hours during the fifteen-month discrimination period, see

Def.’s Rule 50 Mem. Ex. 3, ECF No. 85-3. 2 Given this evidence, a reasonable jury could

2 The District makes hay of Mr. Robinson’s testimony that he worked “some shifts” in the ATEU Overtime Program in 2010. See Def.’s Rule 50 Mem. at 10; Trial Tr. 46:2–4 (Mar. 13, 2018) (test. of Mark Robinson). It argues that this statement, and certain other evidence, shows that many of Mr. Robinson’s 1,000 overtime hours in 2010 were not earned in the ATEU Overtime Program, but rather in other ATEU components. See Def.’s Rule 50 Mem. at 9–10. But as explained below, the District’s showing on this point was perhaps not as strong as it believes. And more fundamentally, as the District itself concedes, “[o]vertime wages are fungible.” Id. at 11. Thus “‘a lost opportunity for overtime,’ is an adverse employment action, but a lost opportunity for a specific type of overtime assignment is not.” Id. (quoting Bell, 398 F. Supp. 2d at 97). The evidence showed that in 2010, when Mr. Robinson had flexible access to apparently ubiquitous ATEU overtime opportunities, he embraced those opportunities. It is not particularly damning, then, that Mr. Robinson worked only “some” ATEU Overtime shifts when he had access to other plentiful overtime opportunities. After Mr. Robinson was reassigned to the SEB, however, the ATEU Overtime Program was the only avenue for him to secure the same flexible, ubiquitous opportunities. The jury found that the District discriminatorily denied Mr. Robinson access to those opportunities through the Program, an “objectively tangible harm.”

9 conclude that Mr. Robinson’s exclusion from the ATEU Overtime Program materially reduced

his overtime opportunities, and thus his compensation.

The District suggests that to show objectively tangible harm, Mr. Robinson was required

to precisely quantify the number of hours he earned in the ATEU Overtime Program before the

discrimination period, and compare it to the hours he earned when he could not access the

Program. See Def.’s Rule 50 Mem. at 10. True, Mr. Robinson needed to show that the District

deprived him of a non-trivial amount of overtime that he would have actually earned. See

Anyaso v. U.S. Capitol Police, 39 F. Supp. 3d 34, 41 n.2 (D.D.C. 2014) (holding that “[t]he mere

conclusory assertion that [the plaintiff] might have had additional opportunities for overtime,”

but for the defendant’s action, was not sufficient to show an adverse employment action); Sims,

33 F. Supp. 3d at 8 (rejecting an overtime-based discrimination claim where the evidence

showed only that the plaintiff “may have lost the opportunity to earn overtime pay while

participating in . . . two short-term detail assignments,” but was otherwise not denied overtime

opportunities); Caul, 2016 WL 2962194, at *13 (“A onetime denial of overtime request in the

context of the plaintiff’s admissions that his requests for overtime were regularly approved, does

not cause a significant change in benefits.” (emphasis in original) (citations and internal

quotation marks omitted)). His allegations could not be “unduly speculative.” Douglas, 559

F.3d at 553.

But the law does not require the absolute precision advocated by the District. Rather, Mr.

Robinson needed only to convince the jury that he would have consistently earned hours in the

ATEU Overtime Program, that the District prevented him from doing so, and that the SEB

provided significantly inferior overtime opportunities. See Lewis v. City of Chicago, 496 F.3d

645, 654 (7th Cir. 2007) (holding that the plaintiff could have suffered an adverse employment

10 action if she “lost the potential to earn many hours of overtime.”); Bell, 398 F. Supp. 2d at 97–98

(allowing the plaintiff’s overtime-based retaliation claim to survive summary judgment where he

presented evidence “showing that substantially more overtime pay was available . . . on average”

to employees in the unit from which he had been reassigned); Caul, 2016 WL 2962194, at *9

(holding that a plaintiff may suffer an adverse employment action when he was denied overtime

in a “frequent and recurring” manner). Mr. Robinson’s evidence was sufficiently probative that

a reasonable jury could have reached that conclusion. 3

The District also argues that Mr. Robinson failed to prove that he had fewer opportunities

to earn overtime in the SEB than he would have had through the ATEU Overtime Program. The

District notes that Mr. Robinson’s SEB supervisor, Captain Robert Glover, testified that “[i]t

would have been fairly easy [for an SEB officer] to accomplish 20 [overtime] hours in a week.”

Trial Tr. 18:5–17, Mar. 14, 2018 (test. of Robert Glover). Captain Glover also described the

types of sporadic overtime opportunities available to SEB members. See id. at 15:1–16:11

(listing parades, sporting events, movie sets, and protests as possible SEB overtime

opportunities). But this testimony is no more precise than Mr. Robinson’s testimony to the

3 The District complains that Mr. Robinson did not present particularly strong evidence that he would have actually worked the additional overtime hours available to him through the ATEU Overtime Program, had he been granted access to it. But the District had an opportunity to rebut that evidence at trial. It could have countered Mr. Robinson by, for instance, introducing time records showing that Mr. Robinson turned down opportunities in the ATEU Overtime Program when he did have access to it. See Lewis v. City of Chicago Police Dep’t, 590 F.3d 427, 436 (7th Cir. 2009) (holding that whether the plaintiff proved an adverse employment action was a question for the jury, which the defendant answered in the negative by presenting evidence that the plaintiff “did not know how much overtime she would have earned, [and] that there were several other equally beneficial details available to her”). The District admits, however, that it merely succeeded in showing that Mr. Robinson “potentially earned” 742 hours in the Program in 2010, maybe slightly fewer. See Def.’s Rule 50 Mem. at 10. But approximately 700 overtime hours in one year is still significantly more than the 530 overtime hours Mr. Robinson earned in the SEB in fifteen months. See Def.’s Rule 50 Mem. Ex. 3. Given the District’s weak showing, it was not unreasonable for the jury to side with Mr. Robinson.

11 contrary. Captain Glover did not identify any specific opportunities that Mr. Robinson turned

down; his testimony was not even specific to Mr. Robinson’s SEB shift schedule. See id. at

17:6–16 (stating that “all three shifts have [overtime] opportunities”). In other words, Mr.

Robinson testified rather vaguely that his overtime opportunities were constrained in the SEB,

and Captain Glover testified rather vaguely that they were not. The jury weighed both

testimonies and sided with Mr. Robinson. Captain Glover’s testimony was not so detailed or

persuasive that this conclusion was unreasonable. 4

The District also fails to appreciate that Mr. Robinson’s argument turned not just on the

volume of hours available in the ATEU Overtime Program, but also on the flexible nature of

those hours. Eight-hour overtime shifts were available twenty-four hours a day, six days a week.

Mr. Robinson could avail himself of these shifts when it was convenient for him. SEB overtime

opportunities, on the other hand, appear to have been sporadic, subject to sports seasons, the

irregular political and convention schedules, and staffing decisions made by Mr. Robinson’s

supervisors. Thus, even if the jury credited Captain Glover’s testimony, Mr. Robinson’s

opportunity to earn twenty SEB overtime hours in a week during inconvenient times was not the

same as an opportunity to earn twenty ATEU overtime hours when it was most convenient for

4 Along the same lines, the District notes that Mr. Robinson admitted that there was never “an instance when he requested overtime in the SEB and was denied.” Def.’s Rule 50 Mem. at 12 (citing Trial Tr. 43:25–44:4, Mar. 13, 2018 (test. of Mark Robinson)). But Mr. Robinson also testified that he maximized his SEB overtime hours. See Trial Tr. 44:5–8, Mar. 13, 2018 (test. of Mark Robinson). And Captain Glover testified that Mr. Robinson earned overtime as the lead car for presidential motorcades “quite often,” “one to two times a week.” Trial Tr. 12:18–13:10, Mar. 12, 2018 (test. of Robert Glover). The jury apparently found this latter testimony credible, despite the former testimony. See Bell, 398 F. Supp. 2d at 98 (holding that a jury could find an overtime-based adverse employment action even though the “plaintiff ha[d] not pointed to specific instances in which overtime was requested and denied”). The Court will not overrule that finding.

12 him. Title VII prevents access to that lucrative and convenient opportunity from being denied on

the basis of race.

Finally, the District notes that seventeen SEB officers earned more overtime during the

discrimination period than Mr. Robinson. See Def.’s Rule 50 Mem. Ex. 3. But the District did

not show that these officers had similar shift schedules to Mr. Robinson, such that Mr. Robinson

would have had the same overtime opportunities. It was thus not unreasonable for the jury to

discount that evidence.

Mr. Robinson could have presented a stronger case. But his case was not as bare-bones

as the District argues. 5 And the District’s evidence to the contrary was not particularly strong

either. The Court simply cannot conclude that “the evidence and all reasonable inferences that

can be drawn therefrom are so one-sided that reasonable men and women could not have reached

a verdict in [Mr. Robinson’s] favor.” Muldrow, 493 F.3d at 165 (quoting McGill, 203 F.3d at

845). The Court thus denies the District’s motion for judgment as a matter of law.

IV. MOTION TO ALTER JUDGMENT

Next, the Court considers the District’s motion, under Federal Rule of Civil Procedure

59(e), to alter or amend the Court’s order granting Mr. Robinson injunctive relief, back pay, and

attorneys’ fees. See Def.’s Rule 59(e) Mot. Alter or Amend J., ECF No. 86; see also Robinson,

341 F. Supp. 3d at 124. “Rule 59(e) provides a limited exception to the rule that judgments are

5 The District takes issue with Mr. Robinson’s “vague, self-serving testimony.” Def.’s Rule 50 Mem. at 12. But it is “beyond question as a general proposition that parties, like other fact witnesses, are legally competent to give material testimony.” Johnson v. Perez, 823 F.3d 701, 710 (D.C. Cir. 2016) (“To the extent the testimony of a witness who is also a party may be impaired by party self-interest, it is ordinarily the role of the jury—not the court on summary judgment—to discount it accordingly.”); see also Bell, 398 F. Supp. 2d at 97 (allowing the plaintiff’s adverse employment action argument to proceed based on his “declaration and deposition testimony”). The District had the opportunity to rebut that testimony, and it failed to do so.

13 to remain final.” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018) (citing

Derrington-Bey v. D.C. Dep’t of Corr., 39 F.3d 1224, 1225 (D.C. Cir. 1994)). This Court may

grant a Rule 59(e) motion under three circumstances: “(1) if there is an ‘intervening change of

controlling law’; (2) if new evidence becomes available; or (3) if the judgment should be

amended in order to ‘correct a clear error or prevent manifest injustice.’” Id. (quoting Firestone

v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam)). “Although the [C]ourt has

considerable discretion in ruling on a Rule 59(e) motion, the reconsideration or amendment of a

judgment is nonetheless an extraordinary measure.” Id. (citing Firestone, 76 F.3d at 1208). This

extraordinary measure is “aimed at reconsideration, not initial consideration.” Id. (quoting

District of Columbia v. Doe, 611 F.3d 888, 896 (D.C. Cir. 2010)). Thus, Rule 59(e) “may not be

used to relitigate old matters, or to raise arguments or present evidence that could have been

raised prior to the entry of judgment.” Exxon Shipping, 554 U.S. at 485 n.5 (quoting 11 C.

Wright & A. Miller, Federal Practice & Procedure § 2810.1 (2d ed. 1995)).

The District argues that the Court must alter or amend its order to prevent a “manifest

injustice.” Def.’s Mem. Supp. Rule 59 Mot. (“Def.’s Rule 59 Mem.”) at 3, ECF No. 86. In

determining whether its order is manifestly unjust, this Court must “examine whether [the

decision] would ‘upset settled expectations—expectations on which a party may reasonably

place reliance.’” Leidos, 881 F.3d at 217 (quoting Qwest Servs. Corp. v. FCC, 509 F.3d 531,

540 (D.C. Cir. 2007)). Put another way, “manifest injustice” requires “at least (1) a clear and

certain prejudice to the moving party that (2) is fundamentally unfair in light of governing law.”

Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d 48, 78 (D.D.C. 2013), aff’d, 782 F.3d 9

(D.C. Cir. 2015).

14 The District faces an uphill battle in challenging the Court’s “considerable discretion” to

award relief in Title VII cases. Lander v. Lujan, 888 F.2d 153, 156 (D.C. Cir. 1989); see

also Barbour v. Merrill, 48 F.3d 1270, 1278 (D.C. Cir. 1995). “[O]ne of the central purposes of

Title VII is ‘to make persons whole for injuries suffered on account of unlawful employment

discrimination.’” Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976) (quoting Albemarle

Paper Co. v. Moody, 422 U.S. 405, 418 (1975)). In line with this purpose, Title VII expressly

provides for a variety of remedies:

If the court finds that the [defendant] has intentionally engaged in . . . an unlawful employment practice charged in the complaint, the court may enjoin the [defendant] from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate.

42 U.S.C. § 2000e-5(g)(1). In considering what remedy is appropriate, a court “must strive to

grant ‘the most complete relief possible.’” Lander, 888 F.2d at 156 (quoting Franks, 424 U.S. at

764).

The District argues that the Court overstepped its discretion in awarding injunctive relief

and back pay to Mr. Robinson. See Def.’s Rule 59 Mem. at 3. The Court shall address these

challenges in order. It concludes that, given its broad discretion to award relief and the District’s

high burden to show manifest injustice, the Court’s order should remain in place. 6

A. Injunctive Relief

The District contends that the Court’s injunction—preventing it from “excluding Mr.

Robinson, because of his race, from overtime opportunities in the ATEU Overtime Program, to

6 The District also asks the Court to reduce Mr. Robinson’s attorneys’ fee award, if the Court vacates Mr. Robinson’s injunctive relief or reduces his back pay award. See id. at 12–13. Because the Court does not alter its judgment, it does not alter Mr. Robinson’s attorneys’ fee award.

15 the extent the Program is still operational and such opportunities are available to officers outside

the ATEU Unit”—was manifestly unjust. Def.’s Rule 59 Mem. at 4; see also Order (Oct. 23,

2018), ECF No. 78. This relief was manifestly unjust, according to the District, because the

ATEU Overtime Program “ended around May 2015.” Def.’s Rule 59 Mem. at 4. Mr. Robinson

thus “cannot show a realistic threat of future exclusion from the ATEU Overtime Program,” the

District asserts, which is necessary to justify injunctive relief. Id.

The Court’s narrowly tailored injunction is necessary to restore Mr. Robinson, as nearly

as possible, to the circumstances he “would have occupied if the wrong had not been

committed.” Lander, 888 F.2d at 156 (quoting Albemarle Paper Co., 422 U.S. at 419). The jury

found that Mr. Robinson was discriminatorily denied access to the ATEU Overtime Program.

Title VII dictates that he not be discriminatorily denied access to that Program in the future. The

Court thus enjoined the District from doing so. The injunction does not require the District to

place Mr. Robinson in the Program, nor does it prevent the District from denying Mr. Robinson

access for non-discriminatory reasons, for instance because Mr. Robinson cannot meet the

Program’s requirements or because the Program is not currently providing overtime

opportunities. The injunction is narrowly tailored to the specific plaintiff in this case—Mr.

Robinson—and the specific injury found by the jury.

The District’s renewed evidentiary argument does not persuade the Court to alter its

injunction. It is true that Lisa Sutter testified that the ATEU Overtime Program “concluded” on

May 16, 2015, an assertion that Mr. Robinson has not contradicted. Aff. of Elisabeth Sutter ¶ 6,

ECF No. 19-3; see also Trial Tr. 109:19–25, Mar. 13, 2018 (test. of Lisa Sutter). But as Mr.

Robinson notes, the MPD General Order establishing the ATEU Overtime Program does not

appear to have been rescinded. See GO-303.10 (Oct. 1, 2010), https://go.mpdconline.com

16 /GO/GO_303_10.pdf. Because the Program is, apparently, still in existence, Mr. Robinson

cannot be “made whole” without an assurance that he will have nondiscriminatory access to the

Program, to the same extent as all other officers. See Barbour, 48 F.3d at 1278. And while Ms.

Sutter—the individual primarily responsible for depriving Mr. Robinson of ATEU Overtime

Program opportunities—is no longer employed by the MPD, the District points to no case law

indicating that a court cannot grant injunctive relief if the primary violator has been removed

from the relevant program, but the program continues. See Jean-Baptiste v. District of

Columbia, 958 F. Supp. 2d 37, 51 (D.D.C. 2013) (enjoining the District from discriminating

against the plaintiff in the future, even though the “‘alleged’ harasser” and other individuals

involved in the discrimination at issue were no longer employed by the relevant agency). The

District points to evidence indicating that Mr. Robinson is perhaps not as likely to be

discriminated against in the future as plaintiffs in other Title VII cases in this jurisdiction. See,

e.g., Caudle v. District of Columbia, 825 F. Supp. 2d 73, 81 (D.D.C. 2011) (enjoining the

District from retaliating against the plaintiffs when “both the plaintiffs and the parties

responsible for the unlawful action they experienced continue[d] to work for the defendant”).

That evidence is not so overwhelming, however, that limited injunctive relief would be

manifestly unjust. 7

More generally, the District has failed to meet Rule 59(e)’s standard with respect to this

issue. The District does not discuss how the Court’s narrowly tailored order—to obey the law

with respect to a single officer’s placement in a specific program—imposes a “clear and certain

7 The Court did not wholly ignore the District’s argument. It declined to enjoin the District from discriminating and retaliating against Mr. Robinson more generally, because Mr. Robinson failed to show that further discrimination or retaliation was more than remotely possible outside of the ATEU Overtime Program. See Robinson, 341 F. Supp. 3d at 107–09.

17 prejudice” on the District. Mohammadi, 947 F. Supp. 2d at 78; see also Jean-Baptiste, 958 F.

Supp. 2d at 51 (“A permanent injunction barring discrimination against [a] plaintiff imposes little

burden on the District.”). Nor does the District describe how the Court’s order “upset settled

expectations.” Leidos, 881 F.3d at 217.

And the District has not shown that the Court’s order was “fundamentally unfair in light

of governing law.” Mohammadi, 947 F. Supp. 2d at 78. The authorities cited in the District’s

opening brief concern plaintiffs’ standing to challenge allegedly illegal government policies and

practices, on non-Title VII grounds. See City of Los Angeles v. Lyons, 461 U.S. 95, 98, 105–13

(1983) (considering a challenge to a police department’s alleged policy or practice of applying

chokeholds during arrests); Haase v. Sessions, 835 F.2d 902, 905, 908–11 (D.C. Cir. 1987)

(considering a challenge to an alleged “policy of subjecting travelers returning from Nicaragua to

intrusive border searches for intelligence-gathering purposes”); Nat’l Sec. Counselors v. CIA,

931 F. Supp. 2d 77, 85, 90–94 (D.D.C. 2013) (considering a challenge to “four separate policies

or practices of the CIA that [allegedly] constitute[d] ongoing violations of the FOIA”). Mr.

Robinson has not brought a policy or practice claim, and these cases have no bearing on his

ability, as a prevailing Title VII plaintiff, to obtain individualized relief expressly authorized by

Title VII. 8 The lone Title VII case cited by the District concerned the necessity of an injunction

when “there was no specific intent to discriminate against” the plaintiff, Johnson v. Brock, 810

F.2d 219, 226 (D.C. Cir. 1987), a circumstance not applicable here, given the jury’s finding of

intentional discrimination.

8 In addition, the District concedes that to this point, it has “failed to argue that there is a higher threshold for obtaining declaratory relief against a governmental policy.” Def.’s Rule 59 Mem. at 5. Because the District failed to raise this argument in its previous post-trial briefing, it cannot raise it now through Rule 59(e). See Exxon Shipping, 554 U.S. at 485 n.5

18 The Court’s injunction is appropriately tailored. It governs the District’s treatment of

only one person—Mr. Robinson—with respect to one program—the ATEU Overtime Program.

See Jean-Baptiste, 958 F. Supp. 2d at 50 (“If granted, injunctions should be narrowly tailored

and should generally apply only to the plaintiff where a class has not been certified.”). It

requires merely that the District provide Mr. Robinson with the same opportunities as other MPD

officers, to the extent those opportunities become available. If the District were to re-activate the

ATEU Overtime Program and exclude Mr. Robinson from it for discriminatory reasons, it makes

sense that he should be able to challenge such action as a violation of this Court’s order. This

Court, as opposed to another court, would have the background knowledge to place Mr.

Robinson’s allegations in the proper context. The District has failed to show that this relief is

manifestly unjust.

B. Back Pay

The District also contends that the Court’s back pay award, approximately $63,000, was

manifestly unjust. See Def.’s Rule 59 Mem. at 3; see also Robinson, 341 F. Supp. 3d at 114

n.13. According to the District, this injustice is attributable to two errors. First, the District

argues that the Court’s back pay award was the product of Mr. Robinson’s “mere speculation,”

which was insufficient to meet his burden under Title VII. See Def.’s Rule 59 Mem. at 4.

Second, the District argues that it met its burden to show that Mr. Robinson failed to mitigate his

damages, yet the Court, improperly, did not account for that factor in awarding back pay. See id.

at 8–9. The Court will address, and reject, each alleged error in turn.

1. Basis for the Award

The District argues that Mr. Robinson failed to provide evidence justifying the amount of

back pay the Court awarded. “Back pay is ‘the difference between the actual wages earned and

19 the wages the individual would have earned in the position that, but for the discrimination, the

individual would have attained.’” Akouri v. Fla. Dep’t of Transp., 408 F.3d 1338, 1343 (11th

Cir. 2005) (quoting Gunby v. Pa. Elec. Co., 840 F.2d 1108, 1119–20 (3d Cir.1988)). As noted, a

court has “wide discretion” to award back pay to make a prevailing Title VII plaintiff whole.

Peyton v. DiMario, 287 F.3d 1121, 1126 (D.C. Cir. 2002) (quoting Barbour, 48 F.3d at 1278);

see also 42 U.S.C. § 2000e-5(g)(1). The plaintiff must, however, provide the court with

evidence to support such an award. See Barbour, 48 F.3d at 1278 (holding that for a court to

award back pay, “the plaintiff bears the initial burden of establishing the value of the lost salary

and benefits”); Gryder v. Dennin, 427 Fed. App’x 844, 846 (11th Cir. 2011) (per curiam) (“[T]he

plaintiff must present some evidence from which the finder of fact can begin a reasonable

calculation of a back-pay award.” (citing Akouri, 408 F.3d at 1343)); Jefferson v. Milvets Sys.

Tech., Inc., 986 F. Supp. 6, 8–9 (D.D.C. 1997) (rejecting the plaintiff’s claim for back pay as

“utterly speculative” when the plaintiff failed to provide “any supporting evidence” that he was

unable to offset his retaliatory discharge with other employment). That said, “calculating lost

pay in a case like this necessarily involves some amount of estimation, precisely because it is not

possible to reconstruct with perfect accuracy the events that would have occurred but for the

defendant’s unlawful conduct.” Caudle, 825 F. Supp. 2d at 78; see also Pittington v. Great

Smoky Mountain Lumberjack Feud, LLC, 880 F.3d 791, 799 (6th Cir. 2018) (“Backpay should

be awarded even where the precise amount of the award cannot be determined.” (quoting

Rasimas v. Mich. Dep’t of Mental Health, 714 F.2d 614, 628 (6th Cir. 1983))); Akouri, 408 F.3d

at 1343 (“‘[U]nrealistic exactitude is not required’ as the back-pay calculation may be based on

‘just and reasonable inference’ of the missing or imprecise figure.” (alteration in original)

(quoting Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 260 (5th Cir. 1974))); cf. Barbour, 48

20 F.3d at 1280 (“[A] district court should not refuse to award front pay merely because some

speculation about future earnings is necessary.”).

Mr. Robinson’s support for his back pay award was not entirely speculative. The District

discriminatorily excluded Mr. Robinson from the ATEU Overtime Program between February

2014 and May 2015. See Pl.’s Mot. Back Pay ¶¶ 1–2, ECF No. 70. During this period, Mr.

Robinson earned 525.75 overtime hours in the SEB. See Def.’s Opp’n Pl.’s Mot. Back Pay Ex.

4, ECF No. 75-4. In 2010, on the other hand, Mr. Robinson earned over 1,000 overtime hours in

the ATEU. Def.’s Rule 59 Mem. at 7; Pl.’s Mot. Back Pay Ex. 2 at 21, ECF No. 70-2. It is

undisputed that Mr. Robinson earned significantly less overtime in the years between 2010 and

the discrimination period, but he credibly explained why he could not earn the same amount of

overtime during those years as he would have sought during the discrimination period. See

Robinson, 341 F. Supp. 3d at 110; Aff. of Mark Robinson (“Robinson Aff.”) ¶¶ 10–13, ECF No.

70-1 (explaining that family circumstances, a lack of specialized SEB training, and an inability to

access the ATEU Overtime Program caused him to work less overtime). 9

The Court thus agreed with Mr. Robinson that it was appropriate to determine his back

pay based on overtime earned by persons “similarly motivated” to him during the discrimination

period—based on his work in 2010—rather than on overtime Mr. Robinson earned in the years

immediately preceding the discrimination period. See Robinson, 341 F. Supp. 3d at 111. Courts

in this jurisdiction have endorsed similar approaches in awarding back pay. See Caudle, 825 F.

Supp. 2d at 77–78 (awarding the plaintiffs back pay based on comparisons of their “pre- and

9 Mr. Robinson’s motion for back pay was supported by his affidavit, see Pl.’s Mot. Back Pay Ex. 1, his overtime history, see id. Ex. 2, ECF No. 70-2; id. Ex. 4, ECF No. 70-4, his salary history, see id. Ex. 3, ECF No. 70-3, and a summary of ATEU Overtime Program hours earned by MPD officers during the discrimination period, see id. Ex. 5, ECF No. 70-5.

21 post-transfer overtime hours” and their “post-transfer overtime [hours] to . . . those of the officers

who remained” in their unit); Walker v. Dalton, 89 F. Supp. 2d 20, 26–28 (D.D.C. 2000)

(directing a magistrate judge to calculate the plaintiff’s back pay based on the overtime hours

earned by individuals occupying the position the plaintiff would have occupied, accounting for

the plaintiff’s motivation); cf. Pagán-Colón v. Walgreens of San Patricio, Inc., 697 F.3d 1, 12

(1st Cir. 2012) (affirming the district court’s decision to apply the “more accurate indicator” of

overtime backpay—among multiple proposed approaches—based on pay stubs and the plaintiff’s

trial testimony). The Court determined that persons “similarly motivated” to Mr. Robinson

during the discrimination period were those officers, forty-one in total, who worked at least

1,000 ATEU overtime hours during that period, as Mr. Robinson did in 2010. See Robinson, 341

F. Supp. 3d at 111; Pl.’s Mot. Back Pay Ex. 5, ECF No. 70-5. This approach was not

speculative; it was based on Mr. Robinson’s actual overtime hours and his sworn declaration. 10

Further, the Court did not blindly accept Mr. Robinson’s back pay calculation. Mr.

Robinson argued that he would have worked 1,354 overtime hours in the ATEU Overtime

Program during the discrimination period, in addition to his SEB overtime; 1,880 total overtime

hours. See Robinson, 341 F. Supp. 3d at 113. This number was overly speculative because Mr.

Robinson failed to show that he was capable of earning that many hours, and his past practices

and shift schedule provided no support. See id. Instead, the Court determined that Mr. Robinson

would have earned 1,354 total overtime hours during the discrimination period, the average

10 In addition, the record indicated that Mr. Robinson’s SEB shift schedule during the discrimination period would have allowed him to regularly work at least one eight-hour ATEU Overtime Program shift. See Robinson, 341 F. Supp. 3d at 112 n.9. There was thus no reason to doubt Mr. Robinson’s assertion that he could have earned at least 1,000 ATEU overtime hours in 2014 and 2015, particularly given the flexibility provided by the ATEU Overtime Program in selecting overtime shifts. See id.

22 number of ATEU Overtime Program hours earned by similarly motivated officers. See id. at

114. In sum, based on record evidence of (1) Mr. Robinson’s past overtime and (2) the amount

of ATEU overtime earned by other MPD officers during the discrimination period, along with

(3) a declaration from Mr. Robinson explaining why his 2010 overtime hours were most

representative of his motivation during the discrimination period, the Court awarded Mr.

Robinson back pay for 828 ATEU Overtime hours. 11 See id.

The District is not satisfied with this reasoning, but it has failed to show obvious error

here, much less manifest injustice. First, the District argues that Mr. Robinson did not

sufficiently explain why, but-for the District’s discrimination, he would have been similarly

situated to officers who earned more than 1,000 hours in the ATEU Overtime Program. See

Def.’s Rule 59 Mem. at 7. But the Court found Mr. Robinson’s explanation sufficient, and the

District has provided no reason to upset that conclusion. Second, and relatedly, the District

argues that Mr. Robinson’s 1,000 ATEU overtime hours earned in 2010 were not all earned in

the ATEU Overtime Program, so there is no basis to compare Mr. Robinson to officers who did

earn 1,000 hours in that Program during 2014 and 2015, when Mr. Robinson was excluded. See

id. at 7–8. But as discussed above, Mr. Robinson had access to multiple types of ATEU

overtime opportunities in 2010, but would have had access only to the ATEU Overtime Program

in 2014 and 2015, if not discriminatorily denied that access. While Mr. Robinson’s proposed

comparator group was imperfect, it was adequate and grounded in available data, and the District

11 This number is in the ballpark of the approximately 700 ATEU Overtime Program hours the District asserts Mr. Robinson earned in 2010. See Def.’s Rule 59 Mem. at 8. And Mr. Robinson’s 2010 hours were earned over twelve months, while he is entitled to back pay for fifteen. Thus, as Mr. Robinson notes, see Pl.’s Opp’n at 14 n.8, his back pay award is based on fewer ATEU Overtime Program hours per month—fifty-six—than he may have earned in 2010—sixty-one, see Def.’s Rule 59 Mem. at 8.

23 did not provide a more accurate comparator. Third, the District notes that Mr. Robinson only

earned more than 1,000 overtime hours in one year. See id. at 7 & n.2. But again, the Court

credited Mr. Robinson’s explanation for why that one year was a better basis for setting his back

pay than the following years leading up to the discrimination period. In short, the District’s

objections are unpersuasive.

The District characterizes Mr. Robinson’s showing as speculative, but its own threadbare

showing—or lack thereof—restricted this Court’s ability to rule any other way. This is

particularly true given the Court’s broad responsibility, in Title VII cases such as this, to grant

“the most complete relief possible” to make the plaintiff whole. Lander, 888 F.2d at 156

(quoting Franks, 424 U.S. at 764). Because the Court again concludes that its back pay award

was based on testimony, data, and “some amount of estimation,” see Caudle, 825 F. Supp. 2d at

78, rather than Mr. Robinson’s baseless speculation, it declines to hold that the award was

2. Mitigation

The District also argues that Mr. Robinson failed to mitigate his damages. Title VII

states that “[i]nterim earnings or amounts earnable with reasonable diligence by the person or

persons discriminated against shall operate to reduce the back pay otherwise allowable.” 42

U.S.C. § 2000e-5(g)(1). “This creates a statutory duty to minimize damages on the part of Title

VII claimants, which requires them ‘to use reasonable diligence in finding other suitable

employment.’” Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 1111, 1133

(D.C. Cir. 1999) (quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982)). While that duty

falls on the plaintiff, the employer must show that the plaintiff failed to discharge it. See Fogg v.

Gonzales, 492 F.3d 447, 455 (D.C. Cir. 2007); Jean-Baptiste, 958 F. Supp. 2d at 44.

24 Here, then, the District must show that Mr. Robinson did not fully embrace the overtime

opportunities available to him in the SEB. The District does not quibble with this standard. See

Def.’s Rule 59 Mem. at 8. It does argue, however, that the Court unjustly concluded that it failed

to meet the standard. See id. at 9–11. Having considered the District’s arguments in the current

round of briefing, the Court does not alter its initial conclusion.

The District’s record evidence on this issue is simply too imprecise. First, the District

notes that “[seventeen] sworn members in the SEB earned more non-ATEU overtime than” Mr.

Robinson during the discrimination period. See id. at 9. However, as the Court previously

noted, the District failed to provide any evidence that these seventeen officers had similar

schedules to Mr. Robinson, such that Mr. Robinson had similar SEB overtime opportunities. See

Robinson, 341 F. Supp. 3d at 112; Def.’s Rule 59 Mem. Ex. 3, ECF No. 86-3. Without that

evidence, the Court had no basis to conclude that Mr. Robinson could have earned as much

overtime as those officers, but chose not to. Second, the District points to Captain Glover’s

testimony that “[i]t would have been fairly easy [for an SEB officer] to accomplish 20 [overtime]

hours in a week.” Trial Tr. 18:16–17 (Mar. 14, 2018) (test. of Robert Glover). More

specifically, Captain Glover testified that SEB officers could earn overtime covering presidential

and vice presidential movements, “baseball on occasion,” other sports games, parades,

marathons, and protests. See id. at 14:2–17:16. But the District provided no evidence indicating

when or how frequently these opportunities arose, other than Detective Glover’s statement that

“[a]ll three [SEB] shifts have opportunities . . . it is just a matter of what you want to work.” Id.

at 17:9–16. 12

12 And as the Court previously noted, see Robinson, 341 F. Supp. 3d at 112, many of these opportunities—baseball games, parades, and marathons, for instance—frequently occur during the day, when Mr. Robinson would have been working his regular SEB shift.

25 Not to mention, the District again ignored the ATEU Overtime Program’s apparent

flexibility compared to the SEB. Officers in the Overtime Program had access to shifts twenty-

four hours a day, six days a week, and could schedule those shifts weeks in advance, around their

personal schedules. See Robinson Aff. ¶¶ 17–18. SEB overtime, on the other hand, was

scheduled, in part, by SEB supervisors rather than the officers themselves. See id. ¶¶ 8, 14. And

the SEB’s overtime opportunities were not ubiquitous; they were sporadic and depended on

events outside of officers’ control. See id. ¶ 15. It may be possible that Mr. Robinson could

have squeezed in a few more hours of SEB overtime by cancelling family plans and otherwise

rearranging his schedule. See id. ¶ 22b (“I worked all voluntary SEB overtime hours that I

qualified to work and which did not conflict with family or personal plans.”). But the District

cites no case law, and the Court is aware of none, stating that “reasonable diligence” under Title

VII, 42 U.S.C. § 2000e-5(g), requires a plaintiff to work inconvenient or inopportune shifts—

shifts that he would not have to work absent discrimination—to mitigate damages, see Berger,

170 F.3d at 1133 (“The victim of discrimination . . . is ‘merely required to make “reasonable

efforts” to mitigate his loss of income, and only unjustified refusals to find or accept other

employment are penalized under this rule.’” (quoting Oil, Chem. & Atomic Workers Int’l Union

v. NLRB, 547 F.2d 598, 603 (D.C. Cir. 1976)).

Put simply, the District’s conclusory assertions are not sufficient to show that Mr.

Robinson passed up SEB overtime opportunities available within the confines of his specific

shift schedule. In fact, the District did not identify a single, specific SEB overtime opportunity

that Mr. Robinson declined. 13 It was not “fundamentally unfair in light of governing law” for the

13 For instance, it may be true that Mr. Robinson could have covered the occasional Washington Capitals evening game, but the District did not identify any game that Mr. Robinson turned down.

26 Court to reject the District’s wholly conclusory argument regarding an issue on which it bore the

burden of proof. 14 Leidos, 881 F.3d at 217 (quoting Mohammadi, 947 F. supp. 2d at 78).

V. MOTION FOR ATTORNEYS’ FEES

Finally, the Court considers Mr. Robinson’s interim motion for attorneys’ fees. See Pl.’s

Suppl. Mot. Fees (“Pl.’s Fee Mot.”), ECF No. 81 Under Title VII, “the prevailing party” is

entitled to “a reasonable attorney’s fee (including expert fees) as part of the costs.” 42 U.S.C. §

2000e-5(k). In awarding fees, a court must conduct a two-step inquiry. See Craig v. District of

Columbia, 197 F. Supp. 3d 268, 274–75 (D.D.C. 2016) (citing Does I, II, III v. District of

Columbia., 448 F. Supp. 2d 137, 140 (D.D.C. 2006)). First, the court must determine whether

the plaintiff is the prevailing party. See id. Second, the court must determine whether the

plaintiff’s fee request is reasonable, and if not, the Court must determine a reasonable fee. See

Does I, II, III, 448 F. Supp. 2d at 140.

In calculating a reasonable fee, the court must determine: (1) a reasonable hourly rate (or

“lodestar”) for the services rendered by the plaintiff’s counsel; (2) the number of hours

reasonably expended on the litigation; and (3) whether the plaintiff has shown that the case

justifies a lodestar enhancement or multiplier. See Covington v. District of Columbia, 57 F.3d

14 The District also argues that it “presented sufficient evidence showing that [Mr. Robinson] failed to use reasonable care and diligence in seeking overtime opportunities.” Def.’s Rule 59 Mem. at 11. The District did not make this particular argument during its prior briefing, though it had access to the same evidence then. See generally Def.’s Opp’n Pl.’s Mot. Back Pay, ECF No. 75. It may not now use a Rule 59(e) motion to make the argument for the first time. See Leidos, 881 F.3d at 217; United States ex rel. Folliard v. Comstor Corp., No. 11-731, 2018 WL 5777085, at *6 (D.D.C. Nov. 2, 2018) (“[N]ewly raised arguments do not warrant relief under Rule 59(e)”). Not to mention, rather than identifying “evidence,” the District attempts to shift its burden to Mr. Robinson: It notes that Mr. Robinson failed to give “a specific example of an overtime shift he could not work.” Def.’s Rule 59 Mem. at 11. But Mr. Robinson is not obligated to show that he exercised reasonable diligence; the District is obligated to show the opposite. The District’s cherry picked reference to Mr. Robinson’s testimony is insufficient to that end.

27 1101, 1107 (D.C. Cir. 1995); Heller v. District of Columbia, 832 F. Supp. 2d 32, 38 (D.D.C.

2011). “The most useful starting point for determining the amount of a reasonable fee is the

number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). With respect to the number of hours expended,

the court must exclude hours that are “excessive, redundant, or otherwise unnecessary.” Craig,

197 F. Supp. 3d at 275 (quoting Does I, II, III, 448 F. Supp. 2d at 140). Along the same lines, if

a plaintiff “achieved only partial or limited success,” the court may conclude that “the product of

hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an

excessive amount,” and it may reduce the award accordingly. Hensley, 461 U.S. at 436.

Mr. Robinson seeks $47,948.40 for work by his counsel, Kenneth McPherson and

Leonard Pazulski, on the back pay, injunctive relief, and attorneys’ fees briefing. See Pl.’s Fee

Mot. at 8. The District does not challenge Mr. Robinson’s entitlement to fees, nor does it

challenge the hourly rate charge by his counsel. 15 Rather, the District argues that this Court

should reduce Mr. Robinson’s fee award by fifteen percent to account for his lack of success.

See Def.’s Opp’n Pl.’s Fee Mot. at 4, ECF No. 87. The District also argues that Mr. Robinson

miscalculated his fees, and that he included hours that should have been included in his previous

fee motion. See id. The Court sides with the District, in part.

The Court reduced Mr. Robinson’s last fee request by fifteen percent because (1) Mr.

Robinson obtained far less at trial—$750—than he sought—$1,600,000; (2) Mr. Robinson

obtained only slightly over half the back pay he sought; (3) Mr. Robinson did not receive the full

15 The Court previously concluded that the fee matrix published by the United States Attorney’s Office for the District of Columbia establishes reasonable hourly rates for this action. See Robinson, 341 F. Supp. 3d at 115–16, 122–23. The parties agree that Mr. Robinson’s counsel are entitled to $602 per hour under that matrix, for work covered by the current fee request. See Pl.’s Fee Mot. at 3; Def.’s Opp’n Pl.’s Fee Mot. at 4, ECF No. 87.

28 measure of injunctive relief he sought; and (4) the District prevailed in part on key dispositive

motions. See Robinson, 341 F. Supp. 3d at 120. It is well-established that this type of success-

based fee reduction is appropriate. See Hensley, 461 U.S. at 434–36; Craig, 197 F. Supp. 3d at

283. The Court sees no reason to alter that approach here, given that Mr. Robinson seeks fees

for the same set of briefing the Court covered in its prior order. See Pl.’s Fee Mot. at 2 (seeking

fees for work on “back pay and . . . injunctive relief and attorney’s fees”).

Mr. Robinson attempts to distinguish his current fee request from his last request, to no

avail. He argues that the services covered by his current request “relate exclusively to [his]

successful claims.” Pl.’s Reply Supp. Fee Mot. at 6, ECF No. 88. This is true in the abstract;

Mr. Robinson received some injunctive relief, some back pay, and some attorneys’ fees. But he

did not receive the full measure of relief sought. The Court reduced Mr. Robinson’s last fee

request accordingly, and it does so here for the same reason. 16

Further, it does appear that Mr. Robinson miscalculated his fees. His initial motion seeks

fees for 64.2 hours of Mr. McPherson’s time, at $602 per hour. See Pl.’s Fee Mot. at 8; Pl.’s Fee

Mot. Ex. 2 at 13–16, ECF No. 81 (Mr. McPherson’s current billing statement). According to Mr.

Robinson, this totals $38,940.40. See Pl.’s Fee Mot. at 8. As the District notes, however, the

correct total is $38,648.40. See Def.’s Opp’n Pl.’s Fee Mot. at 4–5; Pl.’s Fee Mot. Ex. 2 at 16.

16 Mr. Robinson asserts that “the measuring stick for adjudging fee claims is whether the legal services relate to meritorious claims, not victorious claims.” Pl.’s Reply Supp. Fee Mot. at 6. But he cites no case law or statute in support of this proposition. And the case law seems to contradict him. See Goos v. Nat’l Ass’n of Realtors, 997 F.2d 1565, 1572 (D.C. Cir. 1993) (holding that the district court was “on solid legal footing” when it reduced the plaintiff’s fees based, in part, on a comparison of the damages sought to the damages ultimately obtained); Berke v. Fed. Bureau of Prisons, 942 F. Supp. 2d 71, 79–80 (D.D.C. 2013) (reducing the plaintiff’s fees by forty percent due to “the limited nature of the [injunctive] relief obtained by [the] plaintiff”); Roseboro v. Billington, 618 F. Supp. 2d 85, 88–89 (D.D.C. 2009) (reducing the plaintiff’s fees by one-third because the plaintiff sought damages, reinstatement, and other relief, but was awarded only personnel record expungement).

29 In reply, Mr. Robinson claims that Mr. McPherson actually worked 64.7 hours, but he provides

no record evidence in support of this contention. See Pl.’s Reply Supp. Fee Mot. at 2–3. The

Court will not comb Mr. McPherson’s billing records for that missing half hour. It will thus use

$38,648.40 as its base fee for Mr. McPherson, before adjustments.

Finally, although Mr. Robinson seeks fees for certain hours that he could have included

in his last fee request, the Court will not impose the draconian penalty of rejecting those hours.

Mr. Robinson’s last request sought fees for work “through June 8, 2018.” Pl.’s First Mot. Fees at

2, ECF No. 63. Despite this statement, however, the record indicates that Mr. Robinson sought

fees for Mr. McPherson only through June 7, and for Mr. Pazulski through March 9. See Pl.’s

First Mot. Fees Ex. 8 at 87, ECF No. 63-1 (Mr. McPherson’s last billing statement); Pl.’s First

Mot. Fees Ex. 9 at 91, ECF No. 63-1 (Mr. Pazulski’s last billing statement). Mr. Robinson now

seeks fees for June 7 and beyond. See Pl.’s Fee Mot. Ex. 2 at 13; Pl.’s Fee Mot. Ex. 4 at 19, ECF

No. 81 (Mr. Pazulski’s current billing statement). The District seems to suggest that Mr.

Robinson waived his right to seek fees for work performed on June 7 and 8 by not including

those fees in his last motion. Def.’s Opp’n Pl.’s Fee Mot. at 5–6. But the District cites no case

law to support that proposition. 17 The Court thus declines to adopt the District’s approach. And

to the extent that the fee request for work on June 7 and 8 is technically untimely, Plaintiff is

granted leave to submit it. See Fed. R. Civ. P. 6(b).

17 The “law-of-the-case doctrine,” on which the District relies, is inapplicable because it “comes into play only with respect to issues previously determined.” Beach TV Props., Inc. v. Solomon, 324 F. Supp. 3d 115, 123 (D.D.C. 2018) (quoting Quern v. Jordan, 440 U.S. 332, 347 n.18 (1979)). The Court did not previously rule on the fees Mr. Robinson seeks here, even those for work done on June 7 and June 8.

30 * * *

The Court awards Mr. Robinson attorneys’ fees for his counsels’ work, performed

through November 5, 2018, as follows. After re-calculating Mr. McPherson’s fees, Mr.

Robinson seeks a total of $47,656.40. The Court deducts fifteen percent from this total to

account for Mr. Robinson’s failure to obtain the full measure of relief sought. Thus, Mr.

Robinson is entitled to $40,507.94.

VI. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that the District’s Motion for

Judgment as a Matter of Law (ECF No. 85) is DENIED; the District’s Motion to Alter or Amend

Judgment (ECF No. 86) is DENIED; and Mr. Robinson’s Supplemental Motion for Attorneys’

Fees (ECF No. 81) is GRANTED IN PART. It is FURTHER ORDERED that Mr. Robinson

is awarded $40,507.94 in attorneys’ fees. An order consistent with this Memorandum Opinion is

separately and contemporaneously issued.

Dated: May 8, 2019 RUDOLPH CONTRERAS United States District Judge