In August of 2013, the United States Court of Appeals for the Sixth Circuit decided a case that involved a female employee who alleged sex discrimination, hostile work environment and retaliation under Title VII. (See Waldo v. Consumers Energy Co., 726 F3d 802 (6th Cir. 2013)). This case was originally tried in 2009 where the sex discrimination and hostile work environment plaintiff lost, but then her sex discrimination and hostile work environment attorney appealed and won the appeal on the hostile work environment claim only, which allowed him to re-try the case. On the retrial, the plaintiff’s sex discrimination and hostile work environment attorney won and now the defendant is trying to appeal that decision.
The female sex discrimination and hostile work environment plaintiff worked as an electrical line worker for the plaintiff and was subjected routinely to sexual harassment. She began working for the defendant in 1997 part-time and then began working in the Transmission Department. She handled electric lines on tall steel towers. She was in an apprentice program. But, throughout, she was constantly called demeaning names, told she did not belong, told to urinate outdoors, was locked in a trailer and told to scrub the tobacco chew spit from the floor, locked in a port-potty, made to see sexually explicit playing cards, calendars, and magazines at work, and when she first began she was told she was not welcome because she was a woman. This was constant.
Eventually she was thrown out of the apprentice program and that’s when she hired a sex discrimination and hostile work environment attorney to see her employer. A jury awarded her $400,00 in compensatory damages and $7,500,000 in punitive damages, but the judge reduced that award to the statutory cap of $300,000 upon defendant’s motion. But, the court did award her attorney almost $700,000 in attorney’s fees and costs based on a motion for attorneys’ fees and costs filed by plaintiff’s sex discrimination and hostile work environment under Title VII of the Civil Rights Act and the Civil Rights Attorney’s Fees Awards Act of 1976, 42 USC Section 1988.
The defendants appealed arguing the attorney’s fees and costs were too high for the plaintiff’s attorney who only won one of the six initial counts of the complaint, and that the jury verdict was wrong. To wit, the court stated that hostile work environment requires a plaintiff to establish that “1) she belonged to a protected group, 2) she was subject to unwelcome harassment, 3) the harassment was based on sex, 4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, and 4) the defendant knew or should have known about the harassment and failed to act.” (cites omitted).
The court after reviewing all the evidence found that the female employee satisfied her burden. Also, it stated that “non-sexual conduct may be illegally sex based where it evinces anti-female animus, and therefore could be found to have contributed significantly to the hostile environment.” (cites omitted). It did a totality of the circumstances evaluation and found that there was more than ample evidence to support plaintiff’s claim of hostile work environment. Plaintiff had complained numerous times and nothing was ever done. Thus putting the female plaintiff’s employer on notice.
As for the attorney’s and costs issue, the court held that “we have repeatedly rejected mechanical reductions in fees based on the number of issues on which a plaintiff has prevailed.” (cites omitted). “When claims are based on a common core of facts or are based on related legal theories, for the purpose of calculating attorney fees they should not be treated as distinct claims, and the cost of litigating the related claims should not be reduced.” (cites omitted). This is because when several claims arise from a common core of facts, “much of counsels’ time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims.” (cites omitted). Thus, the court upheld the attorney’s fees and costs award.
If you have been the subject of a Sex Discrimination and Hostile Work Environment case, please call and speak to a Sex Discrimination and Hostile Work Environment attorney at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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