If there’s a lesson to be learned in Naiel Nassar v. University of Texas Southwestern Medical Center it is that a plaintiff’s attorney who puts on a “superb” civil-rights case can win nearly all of her requested attorney’s fees — even when she charges $750 an hour.
That’s what happened on July 27 when U.S. District Judge Jane Boyle of Dallas approved nearly all of the half-million dollars in attorneys’ fees requested by four lawyers who represented a plaintiff in a successful employment discrimination and retaliation suit against UT Southwestern.
Dr. Naiel Nassar sued UT Southwestern alleging violations of Title VII of the Civil Rights Act of 1964. One of Nassar’s lawyers, Charla Aldous, says UT Southwestern offered to settle the suit for $40,000, but Nassar declined. In May, Nassar won a $3.6 million jury verdict. And now UT Southwestern must pay his legal fees.
The background in Nassar , according to Boyle’s attorney’s fees opinion and order, is as follows: Nassar, a Muslim physician of Egyptian national origin, was employed as an assistant professor of medicine at UT Southwestern whose primary duty was providing patient care at the HIV/AIDS clinic at Parkland Hospital.
On Aug. 8, 2008, Nassar sued UT Southwestern, Parkland Hospital and two UT Southwestern doctors alleging discrimination and retaliation, among other things. Specifically, Nassar alleged in his complaint that one of his UT Southwestern superiors told him she thought “middle easterners were lazy” and during Nassar’s promotion evaluation, she “raised baseless complaints about his productivity, billing, and commitment to patient care.” As a result of that evaluation process, Nassar alleges he was denied a promotion to a position at Parkland Hospital and he subsequently left his job at UT Southwestern after suffering from “continual harassment” stemming from religious, racial, and cultural bias against Arabs and Muslims.
He alleged in his complaint that he faced discriminatory and harassing treatment at UT Southwestern that constituted constructive discharge, treatment he had reported to UT Southwestern, and after his constructive discharge, UT Southwestern officials blocked his attempt to gain a promotion at Parkland Hospital. He eventually accepted a lesser position in California.
UT Southwestern denied all of Nassar’s allegations in an Aug. 28, 2008, response, asserting it had “legitimate, non-discriminatory and non-retaliatory reasons for all actions affecting” Nassar and “it would have taken the same actions with respect to plaintiff even in the absence of the alleged protected activity” as a racial minority under Title VII.
In February, before trial, Boyle dismissed Nassar’s claims against the two doctors and granted Parkland’s motion for summary judgment, leaving only UT Southwestern as a defendant.
After a week-long trial, on May 24 a jury sided with Nassar, finding that UT Southwestern constructively discharged him on the basis of his race, national origin or religious preference and that UT Southwestern retaliated against him by blocking or objecting to his employment at Parkland Hospital because he engaged in protected activity. The jury awarded him $3.6 million.
On June 11, Nassar filed a motion with Boyle seeking $496,302.50 in attorneys’ fees pursuant to §706(k) of Title VII to be divided between Dallas firms Sawicki & Lauten and the Aldous Law Firm and the four lawyers at those firms who represented Nassar since 2008.
In her July 27 order, Boyle noted that the court has discretion to award attorneys’ fees to the prevailing party in a Title VII case. The plaintiff’s attorneys submitted their fees based on a “lodestar” calculation of the number of hours reasonably spent on the litigation multiplied by a reasonable hourly rate.
Boyle wrote that UT Southwestern objected to the hours expended and the rates charged in the plaintiff’s lawyers’ lodestar calculation and argued that Boyle had discretion to “reduce or eliminate hours” charged by the firms over the course of two years by $20,250 because they were not adequately documented. Boyle did not list the total number of hours the plaintiff’s attorneys worked on the case.
Boyle declined to reduce the number of hours charged by Aldous.
“Spare as the descriptions are, Ms. Aldous’ preparation was evident and her presentation at trial superb. While the description is hardly illuminating, the number of hours claimed appears to be reasonable in light of the results obtained and the court’s observation of the attorney’s performance at trial,” Boyle wrote in her order.
However, Boyle did reduce 27 hours charged by the firms that “though likely necessary, were inadequately documented.”
UT Southwestern also challenged the rates charged by Nassar’s attorneys: $750 an hour for Aldous; $400 an hour for Aldous Law Firm associate Brent Walker; $500 an hour for Brian Lauten, a shareholder in Sawicki & Lauten; and $500 an hour for Sawicki & Lauten shareholder Amy Lauten.
Boyle considered the plaintiff’s lawyers’ affidavits and other evidence that described the relevant experience and customary rates of each of Nassar’s attorneys and concluded that their requested rates provide “reasonable compensation and avoids windfall. . . . This is not to say that these rates are typical or will be routinely accepted, only that they are supported by the record and are reasonable given the specific facts of this case and the remarkable degree of success obtained.”
But Boyle reduced Amy Lauten’s hourly rate by 20 percent to $400 an hour because her “evidentiary support is limited to a few unadorned lines in an attorney declaration.”
Ultimately, Boyle approved all but $6,375 of Nassar’s request for attorneys’ fees. Of the total amount of attorneys’ fees approved, $314,720 went to Sawicki & Lauten and $175,207.50 went to the Aldous Law Firm.
“I was shocked that she approved all but about [$6,375] of our expenses. That’s a case that they offered us $40,000 to settle,” Aldous says. “They are extraordinarily difficult to win.”
The Aldous Law Firm and Sawicki & Lauten took Nassar’s case on a 40 percent contingent-fee arrangement, Aldous says.
“Brian and I took the case because we thought it was the right thing to do. The way Naiel Nassar was treated was horrible, and we took it on a matter of principle not knowing if we’d ever make a dime on the case,” Aldous says.
Brian Lauten says it’s rare for attorneys to receive nearly all of the fees they ask for after prevailing in a Title VII case.
“It’s probably rare that it happens because it’s rare that a plaintiff has a solid Title VII case. But this one did,” Lauten says. “We fully expected to be reimbursed for our attorneys’ fees because we brought a meritorious case, and we had two corroborating witnesses that confirmed our client’s discrimination claim while he worked at UT Southwestern.”
Amy Lauten says Boyle’s reduction of her fee was fair. “I’m totally fine with it,” says Lauten, who assisted with jury selection and two days of testimony.
Karen Adams, an attorney in the UT Southwestern Office of Vice President for Legal Affairs, refers questions to Reagan Simpson, a partner in the Austin office of King & Spalding who represents UT Southwestern. Simpson declines to comment about the jury verdict or the attorneys’ fees awarded to Nassar because Boyle has not yet entered a judgment in the suit.
While it’s not unusual for prevailing plaintiffs’ attorneys to collect reasonable fees in a Title VII case, it is unusual for a judge to approve nearly all the fees requested, three employment lawyers say.
“The rate is higher than I’ve seen approved. That rate is very pleasing to me since I do that work,” Dallas solo Ed Cloutman says of Aldous’ $750-an-hour rate. “And Judge Boyle is very exacting. She needs to know why. And if you satisfy her, that’s good,” says Cloutman, a veteran civil-rights lawyer who represents plaintiffs in Title VII cases.
John Jansonius, a partner in the Dallas office of Akin Gump Strauss Hauer & Feld who defends employers in Title VII cases, also says $750 an hour is “high” recovery for an attorney in such a case but likely reflects Aldous’ performance at trial.
“That is high praise for the trial attorney, no question. And Judge Boyle is a very capable federal judge, so I wouldn’t question the award,” Jansonius says.
Lewis Sifford, a shareholder in Dallas’ Sifford Anderson & Co. who represents plaintiffs and defendants in Title VII cases, agrees with Jansonius. “If Judge Boyle wrote an opinion and made those findings on the fees, I would think that the chance of an appellate court reversing them on appeal are pretty slim,” Sifford says.
Cloutman jokes that he may need to ask for higher attorney’s fees the next time he wins a Title VII case.
“I haven’t kept up,” Cloutman says, “because this sets a new bar.”
John Council is on Twitter at www.twitter.com/john_council.