1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TRACY ABERNATHY, et al., 

 Plaintiffs, 

 vs. Civil Action 2:10-CV-131 

 Judge Watson 

 Magistrate Judge King 

CORINTHIAN COLLEGES, INC., 

 Defendant. 

REPORT AND RECOMMENDATION 

 Upon referral from the assigned District Judge for issuance of a 

report and recommendation, ECF 193, this matter is before the Court on 

Plaintiff’s Motion for an Award of Attorneys Fees, Costs and 

Prejudment [sic] Interest, ECF 167 (“First Motion for Fees”), 

Plaintiff’s Motion for Leave to Supplement Instanter Motion for 

Attorney’s Fees, Costs and Prejudgment Interest, ECF 169 (“Second 

Motion for Fees”), and Third Motion for Leave to Supplement Instanter 

Motion for Attorney’s Fees, Costs and Prejudgment Interest, ECF 195 

(“Third Motion for Fees”) (collectively, “the three motions for 

fees”). For the reasons that follow, it is RECOMMENDED that the three 

motions for fees be GRANTED in part and DENIED in part. 

I. BACKGROUND 

 As an initial matter, the Court notes that the parties refer 

multiple times to various filings and rulings throughout this 

litigation and throughout a related state court action as the bases 

for granting, or limiting, the request for fees and expenses in this 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 1 of 61 PAGEID #: <pageID>
2 

case. Accordingly, the Court will recite the relevant procedural 

history necessary to address the parties’ arguments related to the 

pending motions. 

A. Procedural History in the State Court Action 

On June 5, 2009, Tracy Abernathy, Lawana Shipley and Jennifer 

Brown filed a complaint in the Court of Common Pleas for Franklin 

County, Ohio (“the state court”), against Corinthian Colleges, Inc., 

(“Corinthian”) and William DeFusco, the president of Corinthian’s 

Gahanna, Ohio, location, alleging quid pro quo sexual harassment, 

hostile work environment sexual harassment, negligent supervision and 

negligent retention. Tracy Abernathy, et al. v. Corinthian Colleges, 

Inc., et al., 09CVH 6 8483 (“the state court action” or “09CVH 6 

8483”). Appendix A: Procedural History of State and Federal Court 

Cases, p. 1, attached to First Motion for Fees (“Appendix A”); Answer 

of Defendant Corinthian Colleges, Inc., filed on July 28, 2009, in 09 

CVH 6 8483; Answer of William DeFusco, filed on August 19, 2009, in 09 

CVH 6 8483;1 Defendant’s Memorandum Contra Plaintiff Abernathy’s Motion 

for Attorneys Fees, Expenses, and Costs, ECF 182, p. 14 (“Memo. 

 

1 With one or two exceptions, neither the Appendix nor the parties’ briefs 

provide supporting citations to the state court filings or attach copies of 

these motions, briefs or orders filed in the state court action. Doing so 

would have been helpful to the Court and obviated the need for this Court to 

search through the filings in the state court action to understand the state 

court rulings and events to which the parties refer when litigating the 

request for fees. See Fed. R. Evid. 201(b)(2) (“The court may judicially 

notice a fact that is not subject to reasonable dispute because it . . .can 

be accurately and readily determined from sources whose accuracy cannot 

reasonably be questioned.”); McGehee v. United States Army Corps of 

Engineers, No. 12-5112, 508 F.App’x 368, at *370 (6th Cir. Dec. 10, 2012) 

(taking judicial notice of state court filings, observing that such filings 

“are public records and properly noticed”). 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 2 of 61 PAGEID #: <pageID>
3 

Contra”).2 On May 19, 2010, the state court denied plaintiffs’ motion 

for leave to amend their complaint to add a retaliation claim. 

Decision and Entry Denying Plaintiffs’ Motion for Leave to Amend 

Complaint, Filed April 8, 2010, filed on May 18, 2010, in 09CVH 6 

8483. In reaching this decision, the state court reasoned the 

following: 

Upon review, this Court finds that the plaintiffs have 

already filed retaliation claims in the Southern District 

of Ohio as of February 16, 2010. (Abernathy et al. v. 

Corinthian Colleges, Inc., case 2:10-cv-00131). Because no 

answer has been filed in federal court, the plaintiffs may 

amend their federal complaint without requesting leave of 

court. (Defendants’ memorandum contra, p. 2). 

Additionally, as the defendants note, given the plaintiffs’ 

motion practice in this case and the potential that the 

retaliation conduct arose in Florida, any additional 

discovery necessary would cause undue cost and delay. This 

Court has held three status conferences with the parties 

due to the ongoing discovery and communication issues in 

order to help facilitate judicial economy, however, the 

plaintiffs’ motions practice and the continued lack of 

cooperation constitute bad faith, and therefore, this Court 

finds that the plaintiffs’ motion for leave to amend their 

complaint is not well-taken, and it is hereby DENIED. 

Id. at pp. 2-3. 

 On July 26, 2010, counsel for the state court defendants moved to 

withdraw from representation of defendant DeFusco, contending, inter 

alia, that defendant DeFusco had failed to fully participate in the 

state court action: 

At the onset of this case, Defendant William DeFusco agreed 

to participate fully in the litigation, to appear when 

necessary, and to communicate with counsel throughout. To 

date, he has failed to provide counsel with any address 

 

2 Defendant mistakenly filed the wrong brief in opposition to the First Motion 

for Fees. See Defendant Corinthian College’s Memorandum Contra Plaintiffs’ 

Motion in Limine and Motion for Adverse Inference. ECF 180. Thereafter, 

defendant filed the correct Memo. Contra, ECF 182. For ease of reference, 

the Court will refer to the page numbers at the bottom of the page when 

referring to this brief. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 3 of 61 PAGEID #: <pageID>
4 

other than an email, a cell phone number, and an ExtendedStay hotel. He has promised to appear for deposition on 

several occasions, always cancelling at the last minute, 

due to weather, lack of funds, or alleged health issues. 

In short, Mr. DeFusco has failed to honor his agreement and 

has made it impossible for counsel to offer a defense on 

his behalf. 

Motion of Counsel to Withdraw from Representation of Defendant William 

DeFusco, p. 2, 09 CVH 6 8483 (July 26, 2010). The state court granted 

counsel’s motion to withdraw from the representation of defendant 

DeFusco. Entry, 09 CVH 6 8483 (July 27, 2010). Thereafter, the 

state court granted plaintiffs’ motion to compel the depositions of 

defendant DeFusco and another witness, Barbara Gibson, ordering these 

witnesses to appear for deposition at the times specified by the 

plaintiffs. Order Granting Plaintiffs’ Motion Compelling Depositions 

of William DeFusco and Barbara Gibson, 09 CVH 6 8483 (August 26, 

2010). 

 Defendant Corinthian Colleges, Inc., filed a motion for partial 

summary judgment, which the state court granted in part and denied in 

part on December 10, 2010. Motion for Partial Summary Judgment of 

Defendant Corinthian Colleges, Inc., 09 CVH 6 8483 (September 8, 

2010); Decision and Entry Granting in Part and Denying in Part 

Defendant’s Motion for Summary Judgment, Filed September 8, 2010, 09 

CVH 6 8483 (September 8, 2010). Specifically, the state court granted 

the motion as to the hostile work environment sexual harassment claim, 

but denied the motion as to the claims alleging quid pro quo sexual 

harassment and negligent retention and supervision. Id. The matter 

was scheduled for trial beginning January 31, 2011. Entry, 09 CVH 6 

8483 (January 11, 2011). 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 4 of 61 PAGEID #: <pageID>
5 

The plaintiffs in the state court action filed their final 

pretrial statements in late January 2011, identifying 19 individuals 

who were expected to testify, including Heather Graham, Billie Barz, 

Dineen Merchant, Renee Fall and Pamela LeMaster. Plaintiffs’ Final 

Pretrial Statement, 09 CVH 6 8483 (January 21, 2011). Pursuant to 

Local Rule 9.07 of the Rules of Practice of the Franklin County Court 

of Common Pleas, plaintiffs tendered a security deposit in the amount 

of $300.00 to be applied toward the costs associated with the 

impaneling of a jury in the state court action. Notice of Jury 

Deposit, 09 CVH 6 8483 (January 21, 2011). 

On January 31, 2011, the state court continued the trial date to 

April 4, 2011. See Plaintiffs’ Motion to Continue Trial Date, p. 2, 

09 CVH 6 8483 (March 25, 2011). Approximately one week prior to that 

date, plaintiffs moved to continue the trial date, representing that 

the current date would impose undue financial hardship on plaintiff 

Abernathy. Id. at 2-3. On March 30, 2011, and before the state court 

ruled on plaintiffs’ motion to continue, plaintiffs voluntarily 

dismissed the state court action without prejudice. Notice of 

Voluntary Dismissal, 09 CVH 6 8483 (March 30, 2011). 

B. Procedural History in the Federal Action 

 On February 16, 2010, Tracy Abernathy and Lawana Shipley filed 

this action against Corinthian, asserting claims of sexual harassment 

and retaliation under Title VII, 42 U.S.C. § 2000e-5. Complaint, ECF 

2. Plaintiffs later filed the First Amended Complaint, ECF 11 

(“Amended Complaint”), adding plaintiff Jennifer Brown as a plaintiff 

and asserting a retaliation claim on her behalf. Id. Plaintiffs 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 5 of 61 PAGEID #: <pageID>
6 

alleged, inter alia, that DeFusco had subjected plaintiffs to 

unwelcome sexual harassment in the form of sexual advances and 

requests for sexual favors. Amended Complaint, ¶¶ 9-18. Plaintiffs 

also alleged that, after notifying defendant of DeFusco’s misconduct, 

defendant retaliated against plaintiffs by terminating the employment 

of plaintiffs Abernathy and Brown and by placing plaintiff Shipley on 

a performance improvement plan. Id. at ¶¶ 19-27. 

Following an October 6, 2010, preliminary pretrial conference, 

held pursuant to the provisions of Fed. R. Civ. P. 16, this Court 

issued an order requiring, inter alia, that plaintiffs “provide to 

defense counsel, by December 31, 2010, and quarterly thereafter, a 

statement of attorney fees and expenses incurred to date.” 

Preliminary Pretrial Order, ECF 8, p. 2. The Court also specifically 

noted that a “related case is pending in state court.” Id. 

On April 10, 2012, this Court dismissed the claims of plaintiff 

Shipley after she had abandoned her pursuit of this litigation. 

Report and Recommendation, ECF 61; Order, ECF 63. A final pretrial 

conference and trial were scheduled for December 18, 2012 and January 

7, 2013, respectively. Second Amended Order Setting Trial Date, ECF 

88. On December 9, 2012, plaintiffs identified as witnesses at trial, 

inter alios, Heather Graham and Renee Fall. ECF 95, pp. 1-2. 

The parties engaged in a Court-ordered mediation on August 22, 

2013, Notice, ECF 84, which did not resolve the dispute. Thereafter, 

plaintiffs filed a motion in limine to exclude from evidence, inter 

alia, defendant’s sexual harassment policy as well as the 

investigation and response to plaintiffs’ sexual harassment claims. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 6 of 61 PAGEID #: <pageID>
7 

ECF 89. On December 10, 2012, Defendant also moved in limine to 

exclude, inter alia, former plaintiff Shipley’s testimony. ECF 99, p. 

4. Defendant argued in support of that motion that, although she had 

been deposed in the state court action regarding alleged hostile work 

environment, former plaintiff Shipley had not been deposed regarding 

the facts underlying the quid pro quo claim in the federal case. Id. 

This Court, finding that defendant’s policy and investigation were not 

relevant and that the probative value of such evidence would be 

substantially outweighed by the danger of jury confusion, sustained 

defendant’s motion “to exclude all mention of CCI’s sexual harassment 

policy and the investigation of Plaintiffs’ complaints.” Opinion and 

Order, ECF 116, p. 16. However, this Court rejected defendant’s 

request to exclude former plaintiff Shipley’s testimony, reasoning 

that defendant had been represented at her deposition in the state 

court case and that plaintiffs could not secure her live testimony at 

trial because her whereabouts were then unknown. Id. at 21-22. 

On December 17, 2012, the parties filed proposed pretrial orders. 

ECF 100, 103. Plaintiffs identified as witnesses, inter alios, 

Heather Graham, Billie Barz, Renee Fall and Michelle McCormick. ECF 

103, p. 4. Plaintiffs also filed the depositions of plaintiff Brown 

and former plaintiff Shipley on December 26, 2012. ECF 107, 109, 114. 

On January 5, 2013, i.e., the Saturday before the trial was 

scheduled to commence on Monday, January 7, 2013, at 9:00 a.m., 

defendant filed a motion to dismiss the federal action, taking the 

position that the Court lacked jurisdiction to consider plaintiff 

Abernathy’s quid pro quo claim and asking, in the alternative, to 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 7 of 61 PAGEID #: <pageID>
8 

limit this plaintiff’s claim to the charge presented to the Equal 

Opportunity Commission (“EEOC”). ECF 121.3

 More specifically, 

defendant argued that the Court lacked jurisdiction over the quid pro 

quo claim because plaintiff Abernathy’s EEOC charge, which “served as 

the basis for subject matter jurisdiction for Abernathy’s quid pro quo

claim in this case[,]” id. at 3-4, did not refer to a denial of 

promotion. Id. “Because Plaintiff Abernathy did not fulfill the 

administrative prerequisite for bringing a claim for quid pro quo

sexual harassment in this court,” defendant argued that the Court must 

dismiss her claim. Id. at 4. 

In light of defendant’s motion, the trial did not begin on 

January 7, 2013. Opinion and Order, ECF 127, pp. 3-4. Instead, the 

Court ordered the parties to brief the issues raised by defendant. 

Cf. id. at 3-4. In its reply brief, however, defendant conceded that 

plaintiff Abernathy’s failure to timely or correctly file a charge 

with the EEOC did not call into question the Court’s jurisdiction. 

ECF 126, pp. 1-3. In later denying defendant’s motion, the Court 

noted that defendant had not raised plaintiff Abernathy’s failure to 

exhaust administrative remedies in its answer to the Amended 

Complaint. ECF 127, p. 6. The Court also concluded that defendant’s 

unjustified challenge to jurisdiction less than 48 hours prior to the 

commencement of trial prejudiced plaintiff Abernathy. Id. at 7-9. 

The Court went on to find that defendant’s faulty challenge to the 

 

3 Defendant also represented that plaintiff’s counsel had advised on January 5, 

2013, that plaintiffs would not pursue any retaliation claims, leaving only 

plaintiff Abernathy’s quid pro quo sexual harassment claim. Id. at 2 (citing 

Exhibit 1, attached thereto (email dated January 5, 2012, from plaintiffs’ 

counsel to defense counsel)). See also ECF 125, p. 1 n.1 (notifying Court 

that plaintiffs will not pursue plaintiff Brown’s retaliation claim). 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 8 of 61 PAGEID #: <pageID>
9 

Court jurisdiction “led the Court to postpone the trial when the 

parties, witnesses, and jury were present and prepared to proceed with 

trial.” Id. at 9. The Court ordered defendant to show cause why 

sanctions should not be imposed under Rule 11(b)(1) of the Federal 

Rules of Civil Procedure. Id. Ultimately, the Court declined to 

impose monetary sanctions but admonished defendant and defense 

counsel. Opinion and Order, ECF 131. Plaintiff Abernathy’s quid pro 

quo sexual harassment and retaliation claims were scheduled for trial 

beginning August 5, 2013. Order, ECF 133. 

On August 1, 2013, the Court held a final pretrial conference, 

Order, ECF 137, p. 3, during which defendant verbally opposed 

plaintiffs’ written motion to introduce the deposition transcripts of 

Billie Barz and Dineen Merchant and to introduce the affidavit of 

Pamela King in lieu of live testimony at trial, ECF 139. Order, ECF 

145, pp. 2-4. Invoking Rules 404(b) and 403 of the Federal Rules of 

Evidence, defendant also asked the Court to exclude the testimony of 

Billie Barz, Dineen Merchant, Lawana Shipley, Jennifer Brown and Renee 

Fall. Id. Defendant also asked the Court to reconsider its previous 

ruling regarding the investigation into plaintiff Abernathy’s 

complaint. Id. at 5. The Court denied plaintiff’s motion to admit 

the depositions and affidavit in lieu of live trial testimony and 

granted defendant’s oral motion to exclude the testimony of Billie 

Barz, Dineen Merchant, Lawana Shipley, Jennifer Brown and Renee Fall 

to the extent that their testimony pertained to sexual harassment 

against individuals other than plaintiff Abernathy. Id. at 4, 6. The 

Court also denied defendant’s request to reconsider its prior ruling 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 9 of 61 PAGEID #: <pageID>
10 

regarding the investigation into plaintiff Abernathy’s complaint. Id. 

at 5 (“The Court stated from the bench it stands by its previous 

rulings on this subject.”). 

Plaintiff Abernathy’s quid pro quo sexual harassment and 

retaliation claims proceeded to trial before a jury beginning on 

August 5, 2013. Opinion and Order, ECF 131, p. 7; Minute Entry, ECF 

151, 152, 154, 155, 156, 162. On the first day of trial, the Court 

granted defendant’s request to exclude evidence of its sexual 

harassment policy and investigation of DeFusco. ECF 145, p. 5. 

The jury returned a verdict against plaintiff Abernathy on her 

claim of quid pro quo sexual harassment but found in her favor on the 

retaliation claim and awarded $3,500 in compensatory damages. Jury 

Verdict Forms, ECF 157. On August 14, 2013, the Clerk entered 

judgment in favor of plaintiff Abernathy in the amount of $3,500 with 

interest at the rate of 12%. Clerk’s Judgment, ECF 162. Plaintiff 

Abernathy appealed this judgment, ECF 165, and defendant filed a 

cross-appeal, ECF 166. 

 While the appeals were still pending, plaintiff Abernathy filed 

her First Motion for Fees pursuant to 42 U.S.C. § 1988, seeking 

attorney’s fees in the amount of $178,750.00, expenses in the amount 

of $11,621.55.00, and prejudgment interest on the $3,500.00 jury 

verdict. First Motion for Fees, p. 16. Shortly thereafter, she filed 

her Second Motion for Fees, revising her request for expenses to 

$15,363.88. Id. at 2. Defendant concedes that plaintiff Abernathy, 

as a prevailing party, is entitled to some award of fees and expenses, 

but opposes this plaintiff’s present demand as excessive. Memo. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 10 of 61 PAGEID #: <pageID>
11 

Contra. Plaintiff thereafter filed her Reply Memorandum in Support of 

Motion for an Award of Attorney’s Fees, Costs and Prejudgment 

Interest, ECF 186 (“Reply”). The Court stayed consideration of 

plaintiff Abernathy’s First Motion for Fees and Second Motion for Fees

pending resolution of the parties’ appeals. Order, ECF 189. 

 On July 23, 2014, the United States Court of Appeals for the 

Sixth Circuit rejected defendant’s cross-appeal on the retaliation 

claim and affirmed the judgment of this Court. USCA Opinion, ECF 192;4

Mandate, ECF 194. On August 7, 2014, the assigned District Judge 

referred the First Motion for Fees and Second Motion for Fees, to the 

undersigned for report and recommendation. Order, ECF 193. Following 

that referral, plaintiff Abernathy filed the Third Motion for Fees, 

which defendant opposes. ECF 197.5

 

II. STANDARD 

 Plaintiff Abernathy seeks attorney’s fees and expenses under 42 

U.S.C. § 1988. This statute provides that a court has discretion to 

award a prevailing party, other than the United States, a reasonable 

attorney’s fee. 42 U.S.C. § 1988(b). “Congress enacted the statute 

as an exception to the general rule in our legal system that parties 

are required to pay their own attorney’s fees ‘in order to ensure that 

federal rights are adequately enforced.’” Binta B. v. Gordon, 710 

F.3d 608, 627 (6th Cir. 2013) (quoting Perdue v. Kenny A. ex rel. 

Winn, 559 U.S. 542, 130 S. Ct. 1662, 1671 (2010)). A “reasonable” 

attorney’s fee is therefore a fee that is “adequately compensatory to 

 

4 Plaintiff voluntarily dismissed her appeal. Id. at PAGEID#:3815. 5 Although defendant, without explanation or justification, filed its response 

after the deadline ordered by the Court, see Order, ECF 196, the Court will 

nevertheless consider defendant’s belated filing. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 11 of 61 PAGEID #: <pageID>
12 

attract competent counsel yet which avoids producing a windfall for 

lawyers.” Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 (6th 

Cir. 2000). Determination of an appropriate fee award, however, 

“should not result in a second major litigation.” Hensley v. 

Eckerhart, 461 U.S. 424, 437 (1982). Accordingly, where a moving 

party has an opportunity “to provide a detailed explanation of costs,” 

a court need not provide that party with additional opportunities to 

provide documentation in support of a fee request. See, e.g., Ohio 

Right to Life Soc’y, Inc. v. Ohio Elections Comm’n, No.: 2:08-cv00492, 2014 U.S. Dist. LEXIS 8303, at *5-6 (S.D. Ohio Jan. 22, 2014) 

(overruling objection that plaintiff should have had an additional 

opportunity to provide documentation to substantiate its fee request). 

 “Although § 1988 uses permissive language regarding fee awards, 

‘the Supreme Court has read [§ 1988] as mandatory where the plaintiff 

prevails and special circumstances are absent.’” Hescott v. City of 

Saginaw, Nos. 12-2103/2153, 2014 U.S. App. LEXIS 12489, at *8 (6th 

Cir. July 2, 2014) (quoting Déjà Vu v. Metro. Gov’t of Nashville & 

Davidson Cnty., Tenn., 421 F.3d 417, 420 (6th Cir. 2005)). 

“‘Prevailing party’ is a legal term of art designating ‘one who has 

been awarded some relief by the court. . . .’” Binta B., 710 F.3d at 

620 (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of 

Health and Human Res., 532 U.S. 598, 603 (2001)). See also Green 

Party of Tenn. v. Hargett, Nos. 13-5975/6280, 2014 U.S. App. LEXIS 

16207, at *38 (6th Cir. Aug. 22, 2014) (“To be considered a prevailing 

party, a litigant must have “‘receive[d] at least some relief on the 

merits of his claim’ amounting to ‘a court-ordered change in the legal 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 12 of 61 PAGEID #: <pageID>
13 

relationship between the plaintiff and the defendant.’”) (quoting 

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human 

Res., 532 U.S. 598, 603-04 (2001)). “Success on a single claim is 

sufficient to become a prevailing party.” Id. (citing McQueary v. 

Conway, 614 F.3d 591, 603 (6th Cir. 2010)). 

“Reasonable” attorney’s fees are calculated in light of the 

prevailing market rates in the relevant community. Binta B., 710 F.3d 

at 627. In determining a reasonable fee award, a court begins by 

calculating the movant’s “lodestar,” “which is the proven number of 

hours reasonably expended on the case by an attorney, multiplied by a 

reasonable hourly rate.” Id. (quoting Isabel v. City of Memphis, 404 

F.3d 404, 415 (6th Cir. 2005)). It follows that hours that are 

“excessive, redundant, or otherwise unnecessary,” i.e., hours that are 

not “reasonably expended,” should be excluded from the initial fee 

calculation. Id. at 627-28 (internal quotation marks and citations 

omitted). Once the initial lodestar calculation is determined, the 

district court may modify the award in light of “relevant 

considerations peculiar to the subject litigation.” Adcock-Ladd, 227 

F.3d at 349 (citations omitted). 

 Finally, a district court must “provide a concise but clear 

explanation of its reasons for the fee award.” Hensley, 461 U.S. at 

437. While a district court’s discretion in determining a statutory 

fee award under Section 1988 is not absolute, it is entitled to 

substantial deference. Binta B., 710 F.3d at 628. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 13 of 61 PAGEID #: <pageID>
14 

III. DISCUSSION 

 In the case presently before the Court, defendant does not 

dispute the reasonableness of the requested hourly rate, see Memo. 

Contra, pp. 1-3, but argues that plaintiff Abernathy’s demand for 

attorney’s fees and for costs is nevertheless unreasonable. The Court 

will address both the requested hourly rate and defendant’s challenges 

to the hours expended. 

A. Reasonable Hourly Rate 

Plaintiff Abernathy’s counsel argues that his hourly rate of 

$250.00 is a reasonable rate for legal counsel with similar experience 

in central Ohio. First Motion for Fees, pp. 8-9 (citing Affidavit of 

John S. Marshall, attached thereto as Exhibit G (“Marshall 

Affidavit”)). See also Affidavit of Rayl L. Stepter, Esq., ¶ 4, 

attached as Exhibit A to First Motion for Fees (“Stepter Affidavit”). 

Defendant concedes that a $250.00 hourly rate is reasonable. Memo. 

Contra, p. 1. 

This Court agrees with the parties that an hourly rate of $250.00 

is reasonable in this case. As noted supra, it is the prevailing 

market rates in the relevant community that determine the 

reasonableness of a requested hourly rate. See Binta B., 710 F.3d at 

627. Plaintiff’s counsel has practiced employment law for 

approximately twenty (20) years. Stepter Affidavit, ¶ 2. He is a 

certified specialist in this area of law and has received statewide 

recognition of his peers. Id. Attorney Stepter’s hourly rate during 

this litigation was $250.00. Id. at ¶ 4. In support of his position 

that the requested hourly rate is reasonable, Attorney Stepter offers 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 14 of 61 PAGEID #: <pageID>
15 

the Marshall Affidavit. Attorney Marshall,6 who has an hourly billing 

rate of $450.00, is familiar with the hourly rates charged by lawyers 

in Columbus and the rates charged by counsel litigating in Ohio 

federal courts. Marshall Affidavit, ¶¶ 6, 9. He has previously 

testified as to the market rates for attorneys in central Ohio. Id. 

at ¶ 5. Attorney Marshall, having reviewed Attorney Stepter’s 

curriculum vitae and the docket in this case, avers that Attorney 

Stepter’s hourly rate of $250.00 is below market rates for counsel 

with similar levels of skill and experience in central Ohio. Id. at 

¶¶ 7, 9. Similarly, a survey of other awards in attorney’s fees cases 

in this district indicates that a $250.00 hourly rate falls within the 

range of billable rates previously approved in civil rights actions. 

See Ohio Right to Life Soc’y, Inc. v. Ohio Elections Comm’n, No. 2:08-

cv-00492, 2014 U.S. Dist. LEXIS 151691, at *17-21 (S.D. Ohio Oct. 22, 

2013)(recommending, inter alia, a $250.00 hourly rate for experienced 

counsel), sustained in part and overruled in part by Ohio Right to 

Life Soc’y, Inc. v. Ohio Elections Comm’n, No. 2:08-cv-00492, 2014 

U.S. Dist. LEXIS 8303, at *6-7 (S.D. Ohio Jan. 22, 2014) (approving 

and adopting, inter alia, a recommended hourly rate of $250.00 for 

counsel); ABC v. Brunner, No. 1:04-cv-750, 2008 U.S. Dist. LEXIS 

 

6 Attorney Marshall has practiced primarily in the area of civil rights 

and employment litigation since he was licensed to practice law in the 

State of Ohio in November 1983. Marshall Affidavit, ¶¶ 1-2. He was 

one of the first lawyers in Ohio to be certified by the Ohio State Bar 

Association as a specialist in Labor and Employment Law and is 

currently serving a four-year term on the Ohio State Bar Association 

Employment Law Specialty Board. Id. at ¶ 2. Attorney Marshall has 

extensive litigation experience in the areas of civil rights and 

employment discrimination and has been recognized for his legal 

accomplishments and expertise. Id. at ¶¶ 3-4. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 15 of 61 PAGEID #: <pageID>
16 

119364, at *36-37 (S.D. Ohio Sept. 30, 2008) ($380.00 hourly rate for 

a 20 year litigation partner); Cook v. City of Norwood, 2005 U.S. 

Dist. LEXIS 46038, at *22-23 (S.D. Ohio Sept. 27, 2005) (finding an 

hourly rate of $225.00 reasonable for an attorney who practiced 

primarily employment law for nearly 30 years). This evidence and 

authority persuade the Court that Attorney Stepter’s $250.00 hourly 

rate is reasonable in this case. Accordingly, it is RECOMMENDED that 

$250.00 be accepted as an appropriate market rate for Attorney 

Stepter’s legal work. 

B. Reasonableness of the Hours Billed 

 Having determined the appropriate hourly rate, the Court now 

considers the number of hours reasonably expended, excluding from the 

lodestar calculation hours that are “excessive, redundant, or 

otherwise unnecessary,” i.e., hours that are not reasonably expended. 

See Binta B., 710 F.3d at 627-28. The party moving for an award of 

fees has the burden of establishing entitlement to the requested 

award. Reed v. Rhodes, 179 F.3d 453, 472 (6th Cir. 1999). A “fee 

applicant (whether a plaintiff or a defendant) must . . . submit 

appropriate documentation to meet ‘the burden of establishing 

entitlement to an award.’” Fox v. Vice, _ U.S. _, 131 S. Ct. 2205, 

2216 (2011) (quoting Hensley v. Eckerhart, 461 U.S. at 437). See also

Imwalle v. Reliance Med. Prods., 515 F.3d 531, 552 (6th Cir. 2008) 

(“Attorneys who seek fees have an obligation ‘to maintain billing time 

records that are sufficiently detailed to enable courts to review the 

reasonableness of the hours expended’ on the case.”) (quoting 

Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 16 of 61 PAGEID #: <pageID>
17 

1990), abrogated on other grounds by Buckhannon Bd. & Care Home, Inc. 

v. W. Va. Dep’t of Health & Human Resources, 532 U.S. 598, 121 S. Ct. 

1835, 149 L. Ed. 2d 855 (2001)). Therefore, “‘[w]here the 

documentation of hours is inadequate, the district court may reduce 

the award accordingly.’” Reed, 179 F.3d at 472 (quoting Hensley, 461 

U.S. at 433). In making this determination, “[t]he essential goal in 

shifting fees (to either party) is to do rough justice, not to achieve 

auditing perfection. So trial courts may take into account their 

overall sense of a suit, and may use estimates in calculating and 

allocating an attorney’s time.” Fox, 131 S. Ct. at 2216. 

1. Required quarterly disclosure of fees and expenses 

Defendant first argues that the Court should deny the request for 

fees because plaintiff Abernathy failed to provide quarterly fee and 

expense statements. Memo. Contra, pp. 10-12. On October 6, 2010, 

this Court directed plaintiffs to “provide to defense counsel, by 

December 31, 2010, and quarterly thereafter, a statement of attorney 

fees and expenses incurred to date.” Preliminary Pretrial Order, ECF 

8, p. 2. Attorney Stepter apparently provided summaries of fees and 

expenses to defendant on February 14, 2012 and on June 8, 2012. See

Exhibit A-2 (“[F]rom the period of September 1, 2011 through December 

31, 2011, 10.1 hours of time was spent at the rate of two hundred 

fifty dollars ($250.00) per hour. For the entire case, 281.4 hours of 

time have been spent in pursuit of all claims, including the Title VII 

claims.”), attached to Memo. Contra; Exhibits A-3, A-4 (letter and 

invoice reflecting “326 hours spent to date @ $250 an hour” and 

expenses of $5766.03) as well as estimates of damages suffered by 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 17 of 61 PAGEID #: <pageID>
18 

plaintiffs Brown and Abernathy), attached to Memo. Contra. The 

parties apparently disagreed as to the appropriate level of detail in 

the quarterly statements required by the Preliminary Pretrial Order, 

but did not contact the Court to resolve any such disagreement. See 

Exhibits A-5, A-6, A-7; Exhibit 1, attached to Reply. 

Defendant filed a motion in limine seeking to exclude, inter 

alia, “evidence of damages not detailed and disclosed to defendant.” 

Defendant’s Motion In Limine, ECF 99, pp. 2-3. In that motion, 

defendant argued that plaintiffs had provided only “two generalized 

damage summaries during the entire pendency of this case.” Id. 

Defendant contended that plaintiffs’ failure to provide appropriate 

summaries prevented defendant from fully assessing its risk in this 

case. Id. at 3. Plaintiff takes the position that the information 

previously provided satisfied the requirements of the Preliminary 

Pretrial Order. ECF 101. Plaintiff also represents that she offered 

to submit documentation in camera to the undersigned or to the United 

States Magistrate Judge who mediated the case, but that defendant did 

not respond to that offer. Id. at 6. 

On January 2, 2013, the Court noted that Attorney Stepter had 

submitted a certified summary of attorney’s fees and expenses to the 

Court. Opinion and Order, ECF 116, p. 22. “The Court, therefore, 

views this matter as moot and denies Defendant’s motion to exclude 

evidence of damages.” Id. In now opposing plaintiff Abernathy’s 

request for fees and expenses on this basis, defendant argues that she 

“unreasonably refused to provide any detail to Defendant for the 

purpose of evaluating risk in the context of settlement, and because 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 18 of 61 PAGEID #: <pageID>
19 

the billing records were not accurate or made concurrently with 

billable time incurred.” Memo. Contra, p. 12. See also id. at 11 

(arguing that the billing information provided to defendant was 

inaccurate because, inter alia, Attorney Stepter represented on 

February 14, 2012 that he had incurred 281.4 hours while “billing 

summaries,” presumably those offered in support of the First Motion 

for Fees, reflect a total of only 264.4 hours by that date). In the 

alternative, defendant argues, the Court should deny recovery of fees 

incurred prior to February 14, 2012, and after September 8, 2012, 

because of plaintiff’s failure to provide the quarterly statements 

required by the Preliminary Pretrial Order. Id. at 12. 

As it did previously, see Opinion and Order, ECF 116, p. 22, this 

Court regards this issue as resolved in light of the denial of 

defendant’s motion to exclude evidence of damages. Moreover, to the 

extent that defendant’s argument in this regard may be construed as a 

request for a denial of fees based on “special circumstances,” i.e., a 

failure to provide quarterly statements, “[t]he Sixth Circuit has not 

found an instance where special circumstances justify denying fees 

under § 1988.” Contract Design Group, Inc. v. Wayne State Univ., No.: 

2:10-cv-14702, 2014 U.S. Dist. LEXIS 112474, at *7-8 (6th Cir. Aug. 

14, 2014). In short, defendant’s request to deny the three motions 

for fees because of a failure to provide detailed quarterly fee 

statements is not well-taken. 

2. Fees related to the claims of Jennifer Brown and 

Lawana Shipley 

 Plaintiff Abernathy’s request for fees includes billings related 

to the claims of Jennifer Brown and Lawana Shipley. See, e.g., 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 19 of 61 PAGEID #: <pageID>
20 

Stepter Affidavit, ¶¶ 5, 10; Exhibit B, pp. 1-2, 10-12, attached to 

Motion for Fees (“Billing Records”). Defendant seeks to exclude these 

fees because Ms. Brown and Ms. Shipley voluntarily elected not to 

pursue their claims. Memo. Contra, pp. 12-13. Defendant also argues 

that fees related to the depositions of Renee Fall, Pamela LeMaster, 

Billie Barz and Deneen Merchant, who had no knowledge relevant to 

plaintiff Abernathy’s claims, should likewise be denied. Id. at 12, 

16. 

 Section 1988 authorizes an award of fees to a prevailing party. 

42 U.S.C. § 1988(b). “‘Prevailing party’ is a legal term of art 

designating ‘one who has been awarded some relief by the court . . . 

.’” Binta B., 710 F.3d at 620 (quoting Buckhannon Bd. & Care Home, 

Inc., 532 U.S. at 603). The “magnitude of the relief obtained” does 

not alone determine whether or not a party qualifies as a prevailing 

party. Farrar v. Hobby, 506 U.S. 103, 114 (1992). “‘A plaintiff 

crosses the threshold to ‘prevailing party’ status by succeeding on a 

single claim, even if he loses on several others and even if that 

limited success does not grant him the ‘primary relief’ he sought.’” 

McQueary v. Conway, 614 F.3d 591, 603 (6th Cir. 2010) (quoting Texas 

State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790-

91 (1989)). Nevertheless, if 

a plaintiff has achieved only partial or limited success, 

the product of hours reasonably expended on the litigation 

as a whole times a reasonable hourly rate may be an 

excessive amount. This will be true even where the 

plaintiff's claims were interrelated, nonfrivolous, and 

raised in good faith. 

Hensley v. Eckerhart, 461 U.S. at 436. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 20 of 61 PAGEID #: <pageID>
21 

 In the case presently before the Court, Ms. Shipley’s claims were 

dismissed on April 10, 2012, after she abandoned her pursuit of this 

litigation. Report and Recommendation, ECF 61; Order, ECF 63. Ms. 

Brown ultimately decided not to proceed to trial on her claim. See

ECF 121, p. 2; ECF 125, p. 1; Opinion and Order, ECF 127, p. 1, n.1. 

It was only plaintiff Abernathy’s claims of quid pro quo sexual 

harassment and retaliation that proceeded to trial. Opinion and 

Order, ECF 131, p. 7; Minute Entry, ECF 151, 152, 154, 155, 156, 162. 

The jury returned a verdict against plaintiff Abernathy on her claim 

of quid pro quo sexual harassment, but awarded her $3,500 in 

compensatory damages on the retaliation claim. Jury Verdict Forms, 

ECF 157. On July 23, 2014, after considering defendant’s cross-appeal 

on the retaliation claim, the Sixth Circuit affirmed that judgment. 

USCA Opinion, ECF 192; Mandate, ECF 194. Based on this record, Ms. 

Shipley and Ms. Brown are not prevailing parties, i.e., the Court has 

awarded them no relief and they have not prevailed on the merits of 

any of their claims, see Binta B., 710 F.3d at 620; Hanrahan, 446 U.S. 

at 758. 

 Insisting that she is entitled to fees incurred in connection 

with the claims abandoned by Ms. Shipley and Ms. Brown, plaintiff 

Abernathy raises a number of arguments, all of which are unavailing. 

First, plaintiff Abernathy’s counsel has no idea why Ms. Shipley 

abandoned this litigation and notes that Ms. Brown did not abandon her 

claim until shortly before trial. Reply, p. 8. These observations 

miss the mark. It is irrelevant why and when these plaintiffs 

abandoned their claims; the fact remains that Ms. Shipley and Ms. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 21 of 61 PAGEID #: <pageID>
22 

Brown were awarded no relief, did not prevail on any claim, and are 

not entitled to recover fees under § 1988. See Binta B., 710 F.3d at 

620; Hanrahan, 446 U.S. at 758. 

Second, and noting that “[t]he initial claims in the case 

involved a hostile working environment theory,” Reply, p. 4,7

plaintiff Abernathy contends that the work related to the claims of 

Ms. Shipley and Ms. Brown offer “other acts” evidence admissible in 

connection with a hostile work environment claim. Id. at pp. 4-5. 

According to plaintiff Abernathy, work performed in connection with 

those claims before they were dismissed by the state court on summary 

judgment is therefore properly billable. This argument again misses 

the mark. Plaintiff Abernathy concedes that the hostile work 

environment claim was dismissed and, as noted supra, all the state 

court plaintiffs voluntarily dismissed the remaining claims asserted 

in that action. Plaintiff Abernathy has not established that work 

related to the claims of Ms. Shipley and Ms. Brown also relates to her 

retaliation claim, i.e., the only claim upon which she prevailed. 

 Third, plaintiff Abernathy contends that the work related to the 

claims of Ms. Shipley and Ms. Brown and performed after the dismissal 

of the hostile work environment claim by the state court is properly 

compensable to her because defendant did not move to exclude such 

“other acts” evidence until August 1, 2013, i.e., four days before 

trial. Reply, p. 4. According to plaintiff Abernathy, this evidence 

was not “per se excludable,” although she acknowledges that this Court 

 

7

 In making this argument, plaintiff Abernathy referred to the complaint filed 

in the state court action but failed to provide a copy of that pleading. 

This Court was unable to independently retrieve the complaint. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 22 of 61 PAGEID #: <pageID>
23 

ultimately ruled on August 5, 2013 that this evidence was 

inadmissible. Id. at 4-5; Opinion and Order, ECF 145. Moreover, 

plaintiff Abernathy contends that defendant should not be rewarded for 

filing a last-minute motion, particularly when it had notice earlier 

in the litigation of plaintiff’s intent use this “other acts” 

evidence. Reply, pp. 4-5, 7. However, nothing in this argument 

alters the fact that this Court ruled that such evidence was 

inadmissible in support of plaintiff’s claims at trial. In short, the 

time spent developing these claims is not properly includable in the 

initial fee calculation. See Binta B., 710 F.3d at 627-28. 

 Plaintiff Abernathy speculates that work on the “other acts” 

evidence related to the claims of Ms. Shipley and Ms. Brown could have 

been necessary at trial. See Reply, pp. 6 (arguing that such evidence 

was necessary as “rebuttal evidence . . . [i]f evidence of Defendant’s 

[sexual harassment] policy was introduced then instances where the 

policy was not followed would be admissible to refute its position”), 

6-7 (“Thus, even though Plaintiffs did not do so, arguably, Plaintiff 

Abernathy could have requested that evidence of the sexual harassment 

investigations be submitted as evidence in order to rebut Defendant’s 

attempts to go around the Court’s ruling by hinting at an 

investigation”). What is clear is that this evidence was ruled 

inadmissible and was not admitted at trial. Plaintiff’s speculation 

does nothing to change those facts. See Binta B., 710 F.3d at 627-28. 

 Finally, plaintiff Abernathy argues that defendant “waived its 

right” to challenge time spent developing “other acts” evidence “when 

it introduced evidence of its ‘high standards’ at trial.” Reply, p. 6 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 23 of 61 PAGEID #: <pageID>
24 

(emphasis in the original). According to plaintiff Abernathy, she 

“would have needed to have the evidence it acquired to rebut 

Defendant’s testimony should she have chosen to do so. Even though 

evidence is acquired but not used does not render the time spent in 

acquiring it as non-compensable.” Id. This Court disagrees. 

Plaintiff Abernathy cites no authority for this proposition. Instead, 

the Sixth Circuit has held that only hours “reasonably expended,” 

i.e., hours that are not “excessive, redundant, or otherwise 

unnecessary,” should be included in the initial fee calculation. See, 

e.g., Binta B., 710 F.3d at 627-28. By her own admission, this 

evidence was not used at trial. In short, plaintiff Abernathy’s 

request for fees related to the claims of Ms. Brown and Ms. Shipley, 

including the depositions of individuals who had no knowledge relating 

to plaintiff Abernathy’s claims, i.e., Renee Fall, Pamela LeMaster, 

Billie Barz and Deneen Merchant, is not well-taken. Accordingly, as 

it relates to the request for fees relating to the claims abandoned by 

Ms. Shipley and Ms. Brown, it is RECOMMENDED that the three motions 

for fees be DENIED. 

 3. Fees related to local travel time 

Plaintiff Abernathy also seeks reimbursement for fees related to 

her counsel’s local travel time, which was initially billed at his 

regular hourly rate. See, e.g., Billing Records, pp. 2, 12-13 (billing 

for, inter alia, travel to a status conference, final pretrial 

conference and commute each day of trial). Defendant opposes this 

request as well. Memo. Contra, p. 15 (complaining of local travel 

time billed, but providing no authority as to proper rate, if any, 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 24 of 61 PAGEID #: <pageID>
25 

billed for such time). At least one court in this district, 

considering a fee request under Section 1988, has concluded that it is 

inappropriate to charge the regular hourly rate for attorney time 

spent traveling. See, e.g., Hickman v. Valley Local Sch. Dist. Bd. of 

Educ., 513 F. Supp. 659, 663 (S.D. Ohio 1981) (“We also noted a rather 

large number of hours spent in traveling, for which we do not consider 

it entirely appropriate for counsel to charge their full regular 

rate.”). But see Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991) 

(refusing to reverse award for travel time billed at the regular 

hourly rate because “[w]e believe that matters of this sort are within 

the discretion given the district court, which has greater familiarity 

with local practice than does this court”). 

 In the present case, plaintiff Abernathy - who bears the burden 

of supporting her request for fees — later took the position that 

travel time should be awarded at one-half of counsel’s regular hourly 

rate and represented that her counsel “will revise the total amount of 

the award requested in order to account for this reduction.” Reply, 

p. 13 (citing BD v. DeBuono, 177 F. Supp.2d 201, 204 (S.D. N.Y. 

2001)). However, no such revision was ever submitted to the Court. 

In any event, the Court is not persuaded by plaintiff’s citation to 

authority from outside this Circuit. First, the case relied upon by 

plaintiff relates – not to an award of attorney’s fees - but to the 

reimbursement of expert fees. Second, whether or not to compensate 

for local travel time is determined by the local practice in that 

regard. See, e.g., Perotti, 935 F.2d at 764. Yet plaintiff Abernathy 

relies on the purported local practice of New York, not this area. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 25 of 61 PAGEID #: <pageID>
26 

Because plaintiff Abernathy has failed to present any evidence upon 

which the Court can meaningfully determine how much, if any, of this 

local travel time is reasonably billable, it is RECOMMENDED that the 

three motions for fees be DENIED as to local travel time. 

 4. Fees related to state court action 

 Plaintiff Abernathy seeks to recover fees incurred in connection 

with the state court action. See, e.g., Stepter Affidavit, ¶ 5; 

Billing Records, pp. 1-5. Defendant asks that these fees be excluded 

from any award. Memo. Contra, pp. 14-15. Plaintiff Abernathy 

contends that she should recover for work performed in the state court 

case because both cases share the same common core of facts. Reply, 

pp. 8-10. 

 “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.” Deja Vu of 

Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 421 

F.3d 417, 423 (6th Cir. 2005). Because counsel will reasonably spend 

time on the entire litigation, which may have several claims arising 

from a common core of facts, it would be “difficult to divide the 

hours expended on a claim-by-claim basis. Such a lawsuit cannot be 

viewed as a series of discrete claims.” Hensley, 461 U.S. at 435. 

 In the case presently before the Court, defendant apparently does 

not disagree that the state court action and plaintiff Abernathy’s 

claims in this litigation arise from a common core of facts. See 

Memo. Contra, pp. 14-15. Instead, defendant seeks to exclude fees 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 26 of 61 PAGEID #: <pageID>
27 

arising from the state court action because plaintiffs purportedly 

acted in bad faith in that litigation and because plaintiff Abernathy 

chose to file two separate actions, “apparently for the sole purpose 

of generating more attorney fees.” Id. (citing, inter alia, Exhibit 

C-3, Decision and Entry Denying Plaintiffs’ Motion for Leave to Amend 

Complaint Filed April 8, 2010, 09CVH 6 8483 (May 18, 2010)). Defendant 

goes on to argue that “Plaintiff gave no indication that she intended 

to seek fees in connection with this case until February 14, 2012.” 

Id. at 15 (emphasis in original). Defendant’s arguments are not welltaken. Other than its unsupported speculation, defendant offers no 

evidence that plaintiff Abernathy filed two separate actions in two 

separate courts simply to generate more attorney’s fees. Although the 

state court, in denying plaintiffs’ request to amend their state court 

complaint, did comment that plaintiffs’ “lack of cooperation 

constitutes bad faith[,]” Exhibit C-3, p. 3, this comment does not 

justify the complete denial of fees arising from a common core of 

facts. Cf. Wikol v. Birmingham Pub. Schs. Bd. of Educ., 360 F.3d 604, 

611 (6th Cir. 2004) (“But this court has rejected the argument that a 

plaintiff’s bad acts are special circumstances warranting the denial 

of attorney fees.”) (citations omitted). Moreover, as was 

demonstrated by the procedural history set forth supra, DeFusco’s 

refusal to cooperate throughout the state court litigation also 

prolonged that litigation. See, e.g., Motion of Counsel to Withdraw 

from Representation of Defendant William DeFusco, p. 2, 09 CVH 6 8483 

(July 26, 2010); Entry, 09 CVH 6 8483 (July 27, 2010) (granting motion 

to withdraw); Order Granting Plaintiffs’ Motion Compelling Depositions 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 27 of 61 PAGEID #: <pageID>
28 

of William DeFusco and Barbara Gibson, 09 CVH 6 8483 (August 26, 

2010). Under these circumstances, defendant’s request to exclude the 

fees generated in the state court action is not well-taken. 

Accordingly, as it relates to the request for fees arising from the 

state court action, to the extent that those fees arise from a common 

core of facts with the present litigation, it is RECOMMENDED that the 

three motions for fees be GRANTED in accordance with the exclusions 

and reductions discussed supra and infra. 

5. Deficiencies in Billing Records 

Defendant also asks that the fee award be reduced because the 

Billing Records do not provide sufficient detail for this Court to 

determine the reasonableness of the entries. Memo. Contra, pp. 15-16. 

Plaintiff Abernathy disagrees, arguing that her counsel “has 

demonstrated adequate billing judgment” and that defendant “nit-picks” 

her billing statements. Reply, pp. 11-12. She also defends 

redactions contained in the Billing Records as well as those entries 

that contain the names of unknown persons, arguing that those entries 

are “relatively small” or “relatively minimal.” Id. at 12. 

Plaintiff Abernathy’s arguments are not well-taken. The party 

moving for an award of fees bears the burden of establishing 

entitlement to the requested award. Reed v. Rhodes, 179 F.3d 453, 472 

(6th Cir. 1999). Therefore, “‘[w]here the documentation of hours is 

inadequate, the district court may reduce the award accordingly.’” 

Id. (quoting Hensley, 461 U.S. at 433). In the case presently before 

the Court, plaintiff Abernathy’s evidence in support of her 

substantial request for fees is shockingly deficient. As discussed 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 28 of 61 PAGEID #: <pageID>
29 

infra, the lack of documentation and ambiguous billing entries require 

a significant reduction in order to reach a total of hours “reasonably 

expended.” Although the Court will highlight a few of these 

egregious defects, it must be emphasized that multiple defects appear 

throughout the Billing Records. 

a. Entries containing multiple tasks, vague 

descriptions and undefined abbreviations 

The Billing Records are replete with block entries containing 

multiple tasks in a single billing entry. While some of these tasks 

appearing in a single entry may be reasonably expended, other tasks 

are not, and the block entry makes it impossible to determine how much 

time was spent on each activity. The Billing Records also contain 

entries that are simply so general or undefined that it is impossible 

for this Court to determine whether or not the request for fees 

related to those tasks is reasonable. By way of illustration, these 

types of deficiencies are reflected in the following entries: 

1/30/10 Conference with Client re: Mediation 1.0 

1/30/10 Draft Discovery & Deposition Questions 1.5 

 * * * * 

5/18/10 Deposition Fall – Conference with Clients 0.58

 * * * * 

1/17/11 Conference with Tracy, Jenny, Email to Opposition 

0.7 

 * * * * 

3/25/11 Conference with Clients; File Motion to Continue; 

 Review File 2.0 

 

 

8 This entry – including the same description, date and time billed - appears 

twice. See Billing Records, p. 3. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 29 of 61 PAGEID #: <pageID>
30 

* * * * 

1/30/12 RF – Disc Rsps; Call to Ct; Clnt 1.0 

 * * * * 

1/30/12 RF; Discovery Responses; Call to Ct, Client 1.0 

* * * * 

10/30/12 Review File; Cross Ehrenberg; Review Depo 3.0 

 Notes – Ehrenberg; RF-update subpoena list 

* * * * 

12/5/12 Revise Motion; Review Witness + Exhibits 2.7 

Lists, Motion to Amend, Jury Instr; Depo 

Designations 

* * * * 

12/9/12 RF; Review Witness List, Conf w/Clnts 3.0 

* * * * 

1/5/13 LR: Scope of EEOC investigations; 1.5 

read defense motion to dismiss 

* * * * 

7/23/13 Review files confirm filing of transcripts; 4.0 

 Contact court reporter; review opening and 

 finalize list of demonstratives 

Billing Records, pp. 2-3, 5-9, 11.9

 This Court has already recommended 

that the fees related to the claims of Ms. Shipley and Ms. Brown be 

denied. The multiple block-billed entries present substantial hurdles 

when attempting to excise such hours in order to calculate the number 

of hours “reasonably expended” in pursuit of plaintiff Abernathy’s 

retaliation claim. 

 

9 For ease of reference, these citations to the Billing Records omit the 

reference to the client / case, i.e., plaintiff Abernathy. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 30 of 61 PAGEID #: <pageID>
31 

 The Billing Records also contain entries with limited detail or 

undefined abbreviations. By way of example only, the Court notes the 

following vague entries: 

2/1/11 Revise 1.0 

* * * * 

3/24/11 Conference 1.0 

* * * * 

5/11/11 Plaintiff’s Response 0.9 

5/12/11 Plaintiff’s Response 0.5 

* * * * 

7/28/11 Review P.O. 0.3 

* * * * 

7/7/12 Review 1.0 

* * * * 

10/27/12 Subpoenas 0.5 

10/29/12 Subpoenas RF 2.0 

* * * * 

12/11/12 LR – Objection 1.5 

* * * * 

12/14/12 RF 1.1 

* * * * 

12/14/12 Review 1.5 

* * * * 

7/6/13 LR; review legal issues 2.0 

* * * * 

7/13/13 Subpoenas 2.0 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 31 of 61 PAGEID #: <pageID>
32 

Id. at 5, 7-10. This limited detail prevents the Court from 

determining “with a high degree of certainty that such hours were 

actually and reasonably expended in the prosecution of the 

litigation.” See Imwalle, 515 F.3d at 552-53 (internal quotation 

marks and citation omitted). 

 Additionally, as plaintiff Abernathy concedes, seven different 

entries contain redactions. Although redactions may be necessary to 

protect privileged information in some instances, plaintiff 

Abernathy’s redactions in certain entries prevent the Court from 

determining if that time is properly billable. See Billing Records, 

pp. 8-9, 11-13. Providing only abbreviations or only a portion of a 

name as a way of identifying individuals is equally unhelpful. See, 

e.g., id. at 7-8 (listing “DB” and “Kelvin”). Although plaintiff 

Abernathy generally replies that “[t]hese are the names of persons 

such as investigators, law clerks, paralegals and administrative help 

with whom Plaintiff’s counsel communicated regarding the case[,]” 

Reply, p. 12, this explanation is not contained in the sworn Billing 

Records and does little to justify to the Court that time spent with 

“DB” and “Kelvin” is properly billable. Plaintiff Abernathy also 

contends that all of these entries are, in any event, “relatively 

limited” or “relatively minimal[.]” Id. This Court disagrees. For 

example, the redacted entries and entries referencing unidentified 

persons total, at the very least, several thousand dollars and are 

therefore not “relatively minimal[.]” See, e.g., Billing Records, pp. 

8-9, 11-13 (containing seven redacted entries totaling 9.1 hours 

billed at an hourly rate of $450.00 for a total of $4095.00). 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 32 of 61 PAGEID #: <pageID>
33 

 b. Entries demonstrating poor billing judgment 

 In addition, the Billing Records include at least three entries 

relating to essentially clerical tasks. See, e.g., Billing Records, 

pp. 7 (7.3 hours billed on July 26, 2012 to “[f]ile Trial Docs”), 11 

(2.5 hours billed on January 6, 2013 to “[o]rganize files and prepare 

boxes for court”), 13 (3.0 hours billed on August 4, 2013 “[o]rganize 

files and boxes” and 0.5 hours billed on August 5, 2013 to “[p]ick up 

graphics”). These entries are troubling for at least two reasons. 

First, a “‘purely clerical or secretarial’ activity is not billable at 

a paralegal’s rate, or at any rate at all, because such tasks are 

included in office overhead.” Gibson v. Scott, No. 2:12-cv-1128, 2014 

U.S. Dist. LEXIS 20576, at *10-11 (S.D. Ohio Feb. 19, 2014) 

(addressing request for fees under Section 1988) (citations omitted). 

See also Hensley, 461 U.S. at 437 (“Hours that are not properly billed 

to one’s client also are not properly billed to one’s adversary 

pursuant to statutory authority.”). 

 Second, the time billed for this clerical activity appears to be 

grossly overstated. For example, on July 26, 2012, 7.3 hours were 

billed for the activity “[f]ile Trial Docs[.]” Billing Records, p. 7. 

However, the Court’s docket reflects that six (6) separate filings on 

plaintiff Abernathy’s behalf were filed on July 25, 2012 between the 

period of 7:34 p.m. and 8:03 p.m. See ECF 65, 66, 67, 68, 69, 70. 

Stated differently, the docket reflects that plaintiff’s six filings 

were completed in less than 30 minutes. The request for 7.3 hours for 

“Fil[ing] Trial Docs,” whether billed as attorney or clerical time, is 

therefore unsupported by the record. Not only is such time not 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 33 of 61 PAGEID #: <pageID>
34 

properly included in a fee award, but the decision to include it 

undermines the overall credibility of the Billing Records. 

c. Billing one-tenth of an hour per email 

communication 

 In her Third Motion for Fees, plaintiff Abernathy also seeks an 

additional 205.9 hours spent on email communications, billed at an 

hourly rate of $250.00, for an additional fee of $51,475.00. Third 

Motion for Fees, p. 2. Adding this to her prior request for 

$178,750.00 plaintiff’s total fee request now amounts to $230,225.00. 

Id. Although plaintiff explains that she inadvertently omitted these 

205.9 hours, the Court notes that she identified email communications 

in her First Motion for Fees. Id. (citing Stepter Affidavit). 

Defendant opposes the inclusion of these additional fees, arguing, 

inter alia, that the list of email communications lacks sufficient 

detail to determine if the communications are properly billable; 

defendant also argues that the list confirms that Attorney Stepter 

failed to keep accurate, concurrent track of hours billed for such 

communications. ECF 197, p. 2. 

 Defendant’s arguments are well-taken. The Stepter Affidavit

identifies 2059 email communications, id. at ¶ 11, each of which 

Attorney Stepter bills at one tenth of one hour: 

As is my usual and customary practice, each of these emails 

is being billed at one tenth of an hour (0.1). I went 

through the emails in these folders and removed ones from 

the attorney’s fees total where it was not apparent that 

the information was used in the case, where a credible 

argument could be made that it should not be included or 

for other reasons. The total number of emails submitted 

was then revised downward. Redactions were made for 

attorney-client communications and communication with 

Assistants, Law Clerks, and Paralegals. Redactions for 

names or last names were made where including the name was 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 34 of 61 PAGEID #: <pageID>
35 

not necessary. Emails with redactions are still being 

considered in the total submitted to the Court. 

Id. at ¶ 9. 

As an initial matter, plaintiff Abernathy offers no authority or 

justification for billing one tenth of an hour for each email. 

Moreover, while Attorney Stepter reviewed and removed certain emails 

from the fee request, the reliability of this screening process is 

questionable at best. 

In addition, this email list apparently serves as plaintiff 

Abernathy’s only record of billing for these communications, id.;

Stepter Affidavit, ¶¶ 6-9, 11, a fact that is problematic for at least 

two reasons. First, the practice of using an email list instead of 

separately recording time billed for an email communication 

establishes that Attorney Stepter failed to keep contemporaneous time 

records. This failure warrants a reduction in hours reasonably 

expended. See, e.g., Hensley, 461 U.S. at 439 n.13 (affirming 

reduction of hours “by 30 percent to account for [counsel’s] 

inexperience and failure to keep contemporaneous time records”); 

Imwalle, 515 F.3d at 553 (“Courts in this circuit have reduced 

attorney fees on the basis of insufficient billing descriptions where 

the attorney did not ‘maintain contemporaneous records of his time or 

the nature of his work[.]’”) (citations omitted). Second, the email 

list provides only the email’s author, the date received and the 

subject, which is often only a word or two. See Exhibits C, D, E, 

attached to First Motion for Fees (collectively, “the email list”). 

The email list does not provide sufficient information to enable the 

Court to determine whether or not certain email communications are 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 35 of 61 PAGEID #: <pageID>
36 

properly billable. Additionally, multiple entries are also redacted, 

exacerbating the difficulty of making this determination. For 

example, in some entries Attorney Stepter redacted all of the 

information in a particular entry (i.e., the author, the subject and 

the date received), see, e.g., Exhibit C, p. 1,10 or redacted the name 

of the author, see, e.g., Exhibit C, pp. 1-8. It is simply 

impossible, based on this record, to determine whether or not 

particular emails are properly billable. 

Moreover, the record suggests that time spent on at least some of 

these email communications has been double-billed, i.e., billed twice 

for the same activity. Again, as noted supra, this practice 

undermines the propriety of including the fees requested in the Third 

Motion for Fees in a final award. As noted supra, plaintiff Abernathy 

does not purport to include in the Billing Records the 2059 email 

communications contained in the email list. See Stepter Affidavit, ¶¶ 

6-9, 11; Exhibits C, D, E, attached to First Motion for Fees. 

However, the Billing Records reflect several entries for what appear 

to be the same email communications. For example, the Billing Records

contain an entry dated June 7, 2010, billing 1.0 hour, regarding 

“Draft Motion for NJ Court; Depo Notice – DeFusco; E-mail,” id. at 4, 

while the email list reflects three emails on the same day, including 

one with the subject “Abernathy, et al. v. CCI and DeFusco.” Exhibit 

D, p. 15. Similarly duplicative entries appear on other dates 

throughout the record. Compare Billing Records, p. 5 (entry dated 

 

10 In referencing the exhibits comprising the email list, the Court refers to 

the numbers at the bottom of the page. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 36 of 61 PAGEID #: <pageID>
37 

January 17, 2011, billing 0.7 hours for “Conference with Tracy, Jenny, 

Email to Opposition), with Exhibit D, p. 6 (listing 9 email 

communications on the same date from Attorney Stepter or Attorney 

Reash, and one unidentified author, regarding trial witnesses and 

preparation); Billing Records, p. 9 (entry dated November 14, 2012, 

billing 0.6 hours for “Email to TA re: [REDACTED]”), with Exhibit C, 

p. 10 (listing an email from Attorney Stepter on the same date with a 

redacted subject). For all of these reasons, plaintiff Abernathy has 

failed to establish that an award of $51,475.00 for 205.90 hours 

expended on email communications was reasonably expended. 

 d. Fees arising from the pursuit of fees 

Finally, plaintiff Abernathy also seeks a fee award for 59.50 

hours expended related to pursuing fees in this case. First Motion 

for Fees, p. 15; Billing Records, pp. 13-14. “[T]he recovery of fees 

for time spent preparing a party’s request for attorney’s fees is 

legitimate.” Auto Alliance Int’l, Inc. v. United States Customs 

Serv., No. 04-1764, 155 Fed. Appx. 226, at *229 (6th Cir. Nov. 23, 

2005) (citing Weisenberger v. Huecker, 593 F.2d 49, 53-54 (6th Cir. 

1979)). However, “[i]n the absence of unusual circumstances, the 

hours allowed for preparing and litigating the attorney fee case 

should not exceed 3% of the hours in the main case when the issue is 

submitted on the papers without a trial[.]” Coulter v. Tennessee, 805 

F.2d 146, 151 (6th Cir. 1986). Here, excluding the 205.9 hours sought 

for the 2059 email communications and the 59.50 hours preparing and 

pursuing a request for fees, Attorney Stepter expended 655.50 hours. 

Cf. Billing Records, pp. 13-14 (representing that Attorney Stepter 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 37 of 61 PAGEID #: <pageID>
38 

spent 2.0 hours on August 23, 2013 engaging in “RF – attorney’s fees; 

file motion” and 57.50 hours between September 5, 2013 and September 

29, 2013 pursuing a fee request). Because three percent (3%) of these 

655.50 hours amounts to 19.67 hours, plaintiff Abernathy’s request for 

59.50 hours in pursuit of fees exceeds the maximum amount permitted in 

this circuit. See Coulter, 805 F.2d at 151. Any amount over 3% of 

the total hours expended, i.e., 19.67 hours, is not reasonably 

complensated. 

Accordingly, as it relates to block billing, vague entries with 

insufficient detail, entries with undefined terms and names, billings 

exceeding the maximum amount permitted in this circuit, activities 

that are double-billed and 205.90 hours represented billing at a tenth 

of an hour for 2059 email communications, it is RECOMMENDED that the 

three requests for fees be REDUCED. 

6. Reasonableness of hours expended on the litigation in 

relation to the value of plaintiff Abernathy’s claims 

and the degree of success achieved 

The jury returned a verdict against plaintiff Abernathy on her 

claim of quid pro quo sexual harassment but in her favor on the 

retaliation claim in the amount of $3,500 in compensatory damages. 

Jury Verdict Forms, ECF 157. Excluding (a) the 205.90 hours for time 

spent on email communications as set forth in the Third Motion for 

Fees, and (b) 39.83 hours in excess of the maximum allowed for “fees 

for fees” in the Sixth Circuit, Attorney Stepter spent 675.17 hours in 

this litigation and the state court action. Billing Records, pp. 13 

(2.0 hours expended on fee request) 14 (57.50 hours spent on fee 

request and 715 hourly total); Third Motion for Fees (seeking fees for 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 38 of 61 PAGEID #: <pageID>
39 

205.90 hours for 2059 emails billed at one tenth of one hour each). 

Multiplying 675.17 hours by an hourly rate of $250.00 yields a 

lodestar fee of $168,792.50. First Motion for Fees, p. 14; Stepter 

Affidavit, ¶ 5; Billing Records. Defendant urges this Court to reduce 

the fee award in light of the modest amount of plaintiff Abernathy’s 

damages, the modest jury award, defendant’s prior settlement offers 

and counsel’s poor judgment and disregard for economy in litigation. 

Memo. Contra, pp. 16-17 (citing Exhibit A-4, plaintiff Abernathy’s 

estimated damages dated June 8, 2012). Plaintiff Abernathy opposes 

any reduction on these bases, contending that there is no requirement 

that the size of the jury award be proportional to the amount of 

attorney’s fees and arguing that defendant acted in bad faith during 

the settlement negotiations. Reply, pp. 13-14. 

“If . . . a plaintiff has achieved only partial or limited 

success, the product of hours reasonably expended on the litigation as 

a whole times a reasonable hourly rate may be an excessive amount. 

This will be true even where the plaintiff’s claims were interrelated, 

nonfrivolous, and raised in good faith.” Hensley, 461 U.S. at 436. 

Accordingly, the district court may use “relevant considerations 

peculiar to the subject litigation” to determine either “the basic 

lodestar amount and/or adjustments thereto[.]” Adcock-Ladd, 227 F.3d 

at 349 (citations omitted). These factors may include the following: 

(1) the time and labor required by a given case; (2) the 

novelty and difficulty of the questions presented; (3) the 

skill needed to perform the legal service properly; (4) the 

preclusion of employment by the attorney due to acceptance 

of the case; (5) the customary fee; (6) whether the fee is 

fixed or contingent; (7) time limitations imposed by the 

client or the circumstances; (8) the amount involved and 

the results obtained; (9) the experience, reputation, and 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 39 of 61 PAGEID #: <pageID>
40 

ability of the attorneys; (10) the ‘undesirability’ of the 

case; (11) the nature and length of the professional 

relationship with the client; and (12) awards in similar 

cases. 

Id. at 349 n.8 (quoting Reed, 179 F.3d at 469 n.2 (citing Johnson v. 

Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)). See 

also Binta B., 710 F.3d at 628 (“The factors which the district court 

may consider in determining such adjustments include the twelve listed 

in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th 

Cir. 1974).”). The Sixth Circuit has recognized that the degree of 

success obtained is “the most critical factor [in the adjustment 

calculation][.]” Id. (citations omitted). “Where a plaintiff has 

obtained excellent results, his attorney should recover a full 

compensatory fee; if a plaintiff obtains ‘limited success, the 

district court should award only that amount of fees that is 

reasonable in relation to the success obtained.’” Isabel v. City of 

Memphis, 404 F.3d 404, 416 (6th Cir. 2005) (citations omitted). 

Therefore, “[a]n award based on the total number of hours reasonably 

expended on the litigation might, however, result in an excessive 

amount if the claimant has achieved only partial success.” Imwalle, 

515 F.3d at 552 (citing Hensley, 461 U.S. at 435). 

 The Sixth Circuit, however, has “‘repeatedly rejected mechanical 

reductions in fees based on the number of issues on which a plaintiff 

has prevailed.’” Id. at 554 (quoting Deja Vu of Nashville, 421 F.3d at 

423). Instead, where only partial success has been achieved, a court 

must consider: 

(1) whether the claims on which the plaintiff failed to 

prevail were or were not related to the claims on which he 

or she succeeded, and (2) whether the plaintiff achieved a 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 40 of 61 PAGEID #: <pageID>
41 

sufficient degree of success to render the hours reasonably 

expended a satisfactory basis for awarding attorney fees. 

Id. at 552. 

Turning to the first consideration under Imwalle, defendant does 

not appear to dispute that plaintiff Abernathy’s dismissed and/or 

abandoned claims in state court and the quid pro quo claim in this 

action arise from a core of facts common with her successful 

retaliation claim in this case. Cf. Memo. Contra, pp. 14-17. See 

also Imwalle, 5515 F.3d at 555 (“This court has in fact held that 

discrimination and retaliation claims are related for the purpose of 

awarding attorney fees.”). Proceeding with the analysis under 

Imwalle, this Court is not persuaded, however, that plaintiff 

Abernathy achieved a sufficient degree of success justifying more than 

700 hours expended pursuing plaintiff Abernathy’s and the related 

claims. In making this determination, the Court does not simply 

compare the requested attorney’s fee with the $3500.00 jury award, nor 

can it conclude that plaintiff Abernathy’s victory on one of her two 

claims at trial dictates a reduction in the award. Instead, the Court 

reviews this litigation and the state court action as a whole. Having 

done so, however, the Court finds that this litigation history reveals 

only a modest degree of success despite multiple years of litigation 

on several claims. 

As set forth in detail supra, plaintiff Abernathy initiated the 

state court action in June 2009, alleging quid pro quo sexual 

harassment, hostile work environment sexual harassment, negligent 

supervision and negligent retention. She filed the federal litigation 

in February 2010 and engaged in discovery in this Court. On December 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 41 of 61 PAGEID #: <pageID>
42 

10, 2010, i.e., approximately a year and a half later, the state court 

granted defendant Corinthian’s motion for summary judgment as to the 

hostile work environment sexual harassment claim, but denied the 

motion as to the claims alleging quid pro quo sexual harassment, 

negligent retention and negligent supervision. As of that date, 

Attorney Stepter had expended over 185 hours, or, billed at an hourly 

rate of $250.00, incurred more than $46,000.00 in attorney’s fees. 

See Billing Records, pp. 1-6.11 

Thereafter, Attorney Stepter expended over 40 hours preparing for 

a trial in the state court action set for January 31, 2011. Id. at 4-

5. Although the state court later continued the trial date to April 

4, 2011, plaintiffs voluntarily dismissed the action without prejudice 

on March 30, 2011. Combined with work on, inter alia, discovery in 

the federal action, Attorney Stepter had expended over 240 hours by 

the end of March 2011, incurring approximately $60,000.00 in 

attorney’s fees. Id. at 1-5. Stated differently, counsel expended 

$60,000.00 to prevail, in part, on summary judgment in the state court 

action, to prepare for trial in that court only to later dismiss the 

action, and to obtain discovery in this litigation. 

The federal litigation proceeded with extensive discovery, 

including multiple depositions and discovery motions. Nevertheless, 

Ms. Shipley abandoned her pursuit of this litigation, resulting in the 

 

11 In reaching the total number of hours for this period, the Court added the 

subtotals that appear on each page. For example, for the period January 14, 

2009 through November 24, 2009, the eight subtotals listed for that period 

were added together for a total of 31.7 hours. Id. at 1. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 42 of 61 PAGEID #: <pageID>
43 

dismissal of her claims on April 10, 2012.12 As of June 8, 2012, 

Attorney Stepter calculated plaintiff Abernathy’s back pay loss to be 

$36,000.00. Exhibit A-4, attached to Memo. Contra. (estimating back 

pay loss “[f]rom March 2010 to April 2010 when she began employment 

with her current employer is approximately $3500.00 (one month of loss 

at $43,000.00)”). He also sought front pay “of 2-5 years [totaling 

$86,000.00 to $215,000.00].” Id. (representing that plaintiff’s 

yearly salary was $43,000.00).13 

On January 5, 2013, Ms. Brown decided not to proceed to trial14 

and the Court continued the trial to August 5, 2013. The record 

reflects that Attorney Stepter expended over 212 hours between 

December 29, 2012 and August 2013, incurring approximately $53,000.00 

in attorney fees. Prior to trial, plaintiff Abernathy demanded 

$135,000.00; defendant’s highest offer was $30,000.00. Memo. Contra, 

p. 16; Reply, p. 16. See also Balsley v. LCP, Inc., No. 1:08-cv-491, 

2011 U.S. Dist. LEXIS 40152, at *16 (N.D. Ohio Mar. 31, 2011) 

(“Further, the court can consider Plaintiffs’ settlement demand with 

the jury award to evaluate Plaintiffs' overall success.”). Following 

a five-day trial, the jury returned a verdict against plaintiff 

Abernathy on her claim of quid pro quo sexual harassment, but in her 

 

12 For the period of January 26, 2012 to December 18, 2012, the Billing Records

provide no subtotals for each month. Billing Records, pp. 7-9. The Court 

declines to expend judicial resources examining each entry in the voluminous 

billings for this period in order to calculate the hours expended and fees 

incurred. Instead, the Court simply notes that the hours expended in the 

year between the voluntary dismissal of the state court action and the 

dismissal of Ms. Shipley’s claims in this litigation are significant. Id. at 

5-7. 

13 The front pay sought therefore amounts to $86,000.00 to $215,000.00. Id. 14 The record reflects that, as of December 18, 2012, Attorney Stepter had 

expended over 444 hours, amounting to over $111,000 in fees. Billing 

Records, p. 9. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 43 of 61 PAGEID #: <pageID>
44 

favor on the retaliation claim in the amount of $3,500 in compensatory 

damages. In sum, after more than four years of litigation in two 

different courts, plaintiff Abernathy lost on summary judgment as to 

one of her claims in state court, voluntarily dismissed the remaining 

state court claims, achieved modest evidentiary gains prior to trial 

in this action and prevailed on one of two claims at trial, resulting 

in a $3,500.00 jury award. This limited success warrants a reduction 

in the hours reasonably expended and fee award. See Imwalle, 515 F.3d 

at 552; Isabel, 404 F.3d at 416. 

Plaintiff Abernathy nevertheless urges this Court to award the 

full amount of fees sought, contending that her discrimination and 

retaliation claims are interrelated and that the Sixth Circuit has 

rejected a reduction in a fee award where a plaintiff has prevailed on 

only some of her interrelated claims. First Motion for Fees, pp. 6-8 

(citing, inter alia, Waldo v. Consumers Energy Co., 726 F.3d 802 (6th 

Cir. 2013)). In Waldo, however, the plaintiff sought and received 

damages in the amount of $300,000.00, the maximum award possible under 

Title VII. Waldo, 726 F.3d at 812, 824. The jury also awarded 

$7,500,000.00 in punitive damages. Id. at 812. While the plaintiff 

in Waldo did not prevail on all of her claims, the Sixth Circuit 

concluded that this damages award was an “excellent result,” 

justifying a full fee award. Id. at 824-25. Conversely, in the case 

presently before this Court, plaintiff Abernathy voluntarily dismissed 

her state court claims and proceeded to trial on her claims of quid 

pro quo sexual harassment and retaliation. While she sought 

$36,000.00 in backpay and $86,000.00 to $215,000.00 in front pay, see 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 44 of 61 PAGEID #: <pageID>
45 

Exhibit A-4, attached to Memo. Contra, the jury awarded her only 

$3,500.00 in compensatory damages on only her retaliation claim. In 

short, the circumstances of this case establish that plaintiff 

Abernathy’s damages award was not an “excellent result.” Waldo is 

therefore inapposite. Accordingly, this Court cannot conclude that 

plaintiff Abernathy enjoyed a degree of success sufficient to justify 

an award of attorney’s fees in the amount of $178,500.00. Stated 

differently, awarding the requested amount of fees in this case would 

result in a windfall to counsel, which this Court has been cautioned 

to avoid. See, e.g., Adcock-Ladd, 227 F.3d at 349 (“A ‘reasonable’ 

attorney’s fee should therefore be ‘adequately compensatory to attract 

competent counsel yet which avoids producing a windfall for 

lawyers.’”) (internal citations omitted); Binta B., 710 F.3d at 612 

(“Congress and the Supreme Court have made it abundantly clear that 

the aim of . . . § 1988 is not for the purpose of aiding lawyers.”) 

(internal quotation marks omitted). For all of these reasons, it is 

RECOMMENDED that the award be reduced as discussed infra to reflect 

plaintiff Abernathy’s partial success in this action. 

7. Calculation of fee award 

As set forth supra, in determining a reasonable fee award, a 

court begins by calculating the movant’s “lodestar,” “which is the 

proven number of hours reasonably expended on the case by an attorney, 

multiplied by a reasonable hourly rate.” Binta B., 710 F.3d at 627 

(quoting Isabel v. City of Memphis, 404 F.3d 404, 415 (6th Cir. 

2005)). A court must eliminate from the initial lodestar calculation 

hours that are “excessive, redundant, or otherwise unnecessary[.]” 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 45 of 61 PAGEID #: <pageID>
46 

Id. at 627-28 (internal quotation marks and citations omitted). 

“Where reductions to the requested number of hours reasonably expended 

on the litigation are appropriate, a court has the discretion to 

utilize a simple across-the-board reduction by a certain percentage as 

an alternative to line-by-line reductions, particularly when fee 

documentation is voluminous.” Project Vote v. Blackwell, No. 1:06-CV1628, 2009 U.S. Dist. LEXIS 34571, at *20-21 (N.D. Ohio Mar. 31, 2009) 

(collecting cases). See also Hensley, 461 U.S. at 436-37 (stating 

that trial courts “may simply reduce the award” instead of 

“attempt[ing] to identify specific hours that should be eliminated”); 

United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Industrial 

and Service Workers Inter’l Union v. Kelsey-Hayes Co., 750 F.3d 546, 

560 (6th Cir. 2014) (affirming fee award imposing an across the board 

reduction); Auto Alliance Intern., Inc. v. United States Customs 

Serv., No. 04-1764, 155 F. App’x 226, at *228 (6th Cir. Nov. 23, 2005) 

(approving the use of across the board reductions) (citing Coulter v. 

Tenn., 805 F.2d at 151); Hudson v. Reno, 130 F.3d 1193, 1209 (6th Cir. 

1997) (affirming across-the-board reduction of 25% for duplicative 

hours), overruled on other grounds by Pollard v. E.I. du Pont de 

Nemours & Co., 532 U.S. 843 (2001); Northeast Coalition of the 

Homeless v. Brunner, No. 2:06-cv-896, 2010 U.S. Dist. LEXIS 131009 

(S.D. Ohio Nov. 30, 2010) (“[I]f reductions to the requested number of 

hours are appropriate, a court has the discretion to utilize a simple 

across-the-board reduction by a certain percentage as an alternative 

to line-by-line reductions.”); Hisel v. City of Clarksville, 3:04-

0924, 2007 U.S. Dist. LEXIS 71766, at *15 (M.D. Tenn Sept. 26, 2007) 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 46 of 61 PAGEID #: <pageID>
47 

(“While cutting hours may appear ‘arbitrary,’ it is an ‘essentially 

fair approach,’ and an across-the-board percentage cut is ‘a practical 

means of trimming the fat from a fee application.’”) (internal 

citations omitted). In short, courts have no obligation to expend 

judicial resources in examining billing records on an entry-by-entry 

basis: 

But trial courts need not, and indeed should not, become 

green-eyeshade accountants. The essential goal in shifting 

fees (to either party) is to do rough justice, not to 

achieve auditing perfection. So trial courts may take into 

account their overall sense of a suit, and may use 

estimates in calculating an attorney’s time. 

Fox v. Vice, _ U.S. _, 131 S.Ct. 2205, 2216 (2011). 

In using an across-the-board reduction, courts have reduced the 

number of hours reasonably expended in various percentages in light of 

excessive billing and other considerations unique to that case. See, 

e.g., United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied 

Industrial and Service Workers Inter’l Union, 750 F.3d at 560 

(affirming fee award imposing an across-the-board reduction in the 

number of hours by 10% where the number of hours claimed was 

unreasonably excessive); Auto Alliance Intern., Inc., 155 F. App’x 

226, at *228 (recognizing “the propriety of an across the board 

reduction based on excessive or duplicative hours” and affirming 

reduction of fee award by 25% for “general excessiveness in billing”); 

Ohio Right to Life Soc’y, Inc. v. Ohio Elections Comm’n, No.: 2:08-cv00492, 2014 U.S. Dist. LEXIS 151691, at *29 (recommending a 90% 

reduction in light of deficiencies in billing records), adopted in 

part by Ohio Right to Life Soc’y, Inc. v. Ohio Elections Comm’n, 2:08-

cv-00492, 2014 U.S. Dist. LEXIS 8303, at *5-6 (using an across the 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 47 of 61 PAGEID #: <pageID>
48 

board reduction of 85% instead of 90% in light of, inter alia, 

deficient billing records, overbilling and a majority of the hours 

expended were unrelated to the pursuit of successful claims). 

As with the number of hours expended, courts may impose an 

across-the-board reduction of the lodestar amount in order to adjust 

the fee award in light of limited success on the merits or in light of 

other considerations. See, e.g., Ky. Rest. Concepts Inc. v. City of 

Louisville, No. 03-5748, 117 Fed. App’x. 415, at *421-422 (6th Cir. 

Dec. 1, 2004) (affirming across the board lodestar reduction of 35% 

where movants “were not successful on all of their claims”); Saieg v. 

City of Dearborn, No. 09-12321, 2012 U.S. Dist. LEXIS 31705, at *13 

(E.D. Mich. Jan. 27, 2012) (“‘[T]he district court has the authority 

to make across-the-board percentage cuts either in the number of hours 

claimed or in the final lodestar figure as a practical means of 

trimming the fat from a fee application.’”) (quoting Gates v. 

Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992)). In calculating an 

across-the-board reduction, there is “‘no precise rule or formula for 

making these determinations.’” Ky. Rest. Concepts Inc., 117 Fed. 

App’x. at *421 (quoting Hensley, 461 U.S. at 436-37). 

In the case presently before the Court, a reduction of the hours 

expended and fee award is warranted. However, as the discussion supra

demonstrates, a line-by-line analysis to determine the appropriate 

reductions for each deficiency throughout the lengthy Billing Records

is not just impractical, but is indeed impossible. Accordingly, the 

Court concludes that a 75% across-the-board reduction should apply to 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 48 of 61 PAGEID #: <pageID>
49 

the 675.15 hours15 for which plaintiff Abernathy seeks compenation. As 

set forth in more detail supra, the following findings support this 

across-the-board reduction: (1) some of the time itemized was related 

to only the claims of Ms. Shipley and Ms. Brown, including multiple 

depositions of various individuals; (2) the Billing Records are 

replete with block entries totaling hundreds of hours containing 

multiple tasks, which makes it impossible to calculate time spent on 

activity reasonably expended in support of plaintiff Abernathy’s 

claims; (3) numerous billing entries contain insufficient descriptions 

of activities, undefined abbreviations and extensive redactions, which 

preclude evaluation as to whether those hours were reasonably 

expended; (4) multiple entries reflect poor billing judgment, such as 

excessive time for simple activities and double-billing; and (5) 

plaintiff Abernathy achieved only limited success on her claims. 

After applying this 75% across-the-board reduction to the 675.17 hours 

billed, the number of hours reasonably expended totals 168.81. Under 

the lodestar method of calculation, the Court applies this multiplier 

(168.81 hours) to a reasonable hourly rate of $250.00, resulting in a 

fee award of $42,202.50. 

In reaching this fee amount, the Court concludes that this award 

effects “rough justice.” See Fox, 131 S. Ct. at 2216. Although this 

across-the-board reduction is significant, the fee award is 

nevertheless substantial in light of the extensive billing 

 

15 For the reasons discussed supra, it is recommended that plaintiff 

Abernathy’s request for an additional 205.9 hours for 2059 email 

communications, each billed at one tenth of an hour, be rejected and that 

plaintiff Abernathy recover no more than 19.67 hours for time spent pursuing 

her fee request. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 49 of 61 PAGEID #: <pageID>
50 

deficiencies and modest success at trial. Cf. City of Riverside v. 

Rivera, 477 U.S. 561, 574 (1986) (plurality op.) (upholding an 

attorney fee award that was more than seven times greater than the 

damages awarded to plaintiffs); Bldg. Serv. Local 47 Cleaning 

Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1401 (6th 

Cir. 1995) (“In the civil rights area, there is no requirement that 

the amount of an award of attorneys’ fees be proportional to the 

amount of the underlying award of damages.”); McHenry v. Chadwick, 896 

F.2d 184, 189 (6th Cir. 1990) (affirming an attorney fee award more 

than five times the damages award). The fee award adequately 

compensates counsel based on the evidence in the record, yet avoids 

the windfall that would result if the Court awarded fees totaling 

nearly $180,000.00. Moreover, the Court is not convinced that this 

reduction will undermine the goal of attracting competent counsel, see

Adcock-Ladd, 227 F.3d at 349, because the decision to impose a 

substantial reduction is based in large part on the gross deficiencies 

in billing documentation reflected in the record. 

C. Reasonableness of Requested Expenses 

 Plaintiff Abernathy also seeks $15,363.88 expenses. Second 

Motion for Fees and exhibits attached thereto.16 In support of her 

request, she provides the following itemization: 

1. Parking- $100.00 

2. Postage- $48.07 

3. Copies- $1,479.14 

 

16 Plaintiff’s initial expense request totaled $11,621.55. See First Motion 

for Fees. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 50 of 61 PAGEID #: <pageID>
51 

4. Investigation- $1,674.63 

5. Delivery- $33.20 

6. Notary- $25.00 

7. Depositions- $7,672.05 

8. Courier- $240.61 

9. Depositions 2- $1,977.50 

10. Court Fees- $138.00 

11. Jury- $300.00 

12. Travel Expenses (Jan. 2013)- $708.64 

13. Travel Expenses (Aug. 2013)- $967.04 

 TOTAL $15,363.88 

Exhibit A, attached to Third Motion for Fees. See also Exhibits 1-13

(receipts, invoices and calculations of total expenses), attached to 

Third Motion for Fees. 

 Section 1988 authorizes an award of “incidental and necessary 

expenses incurred in furnishing effective and competent representation 

as part of the award of attorney fees.” Waldo, 726 F.3d at 827 

(internal quotation marks omitted). A moving party may recover outof-pocket expenses, including expenses “‘incurred by the attorney 

which are normally charged to a fee-paying client, in the course of 

providing legal services,’ such as ‘[r]easonable photocopying, 

paralegal expenses, and travel and telephone costs.’” Id. (quoting 

Northcross v. Bd. of Educ. of Memphis City Sch., 611 F.2d 624, 639 

(6th Cir. 1979)). The district court may use its “best judgment” to 

determine what expenses are “reasonable and necessary[.]” Id. 

(internal quotation marks and citation omitted). 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 51 of 61 PAGEID #: <pageID>
52 

 In the case presently before the Court, defendant challenges four 

categories of expenses for which plaintiff Abernathy seeks 

reimbursement. Memo. Contra, pp. 15-16. First, defendant challenges 

plaintiff’s reimbursement of a jury deposit for the state action, 

“which was most certainly refunded upon dismissal.” Id. at 15. 

Plaintiff Abernathy responds that she will adjust her total if she can 

confirm that the jury deposit was refunded. Reply, p. 12. As an 

initial matter, the Court notes that neither party has provided the 

receipt or invoice reflecting the total amount of the jury deposit. 

After sifting through plaintiff Abernathy’s supporting documentation, 

the Court understands that the jury deposit in the state court action 

totaled $300.00. See Exhibit 11, attached to Second Motion for Fees. 

However, the record also includes a document from the Franklin County 

Clerk of Court reflecting $100.00 for “Clerk Fee Fund” and $351.00 for 

“Refund of Balance of Security Deposit.” Exhibit 10, PAGEID#:3109, 

attached to Second Motion for Fees. It is not immediately clear to 

the Court that a jury deposit, in any amount, has been reimbursed to 

plaintiff Abernathy. As the party seeking reimbursement of costs, 

plaintiff has the burden of establishing her right to reimbursement. 

Cf. Potter v. Blue Cross Blue Shield of Mich., No. 10-14981, 2014 U.S. 

Dist. LEXIS 44720, at *55-56 (E.D. Mich. Jan. 30, 2014) (stating that 

the party seeking reimbursement for costs has the burden of showing 

that the costs were necessary). Accordingly, plaintiff Abernathy has 

failed to demonstrate her entitlement to a $300.00 reimbursement for a 

jury fee. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 52 of 61 PAGEID #: <pageID>
53 

Next, defendant challenges the request for reimbursement for 

plaintiff Abernathy’s travel, noting that some of the supporting 

documentation “does not identify her as the person who incurred the 

cost.” Memo. Contra, p. 15. Plaintiff Abernathy complains that 

defendant “nit-picks” her travel receipts and that, “[i]rrespective of 

who paid for Ms. Abernathy’s travel, that person(s) would have to be 

reimbursed by Ms. Abernathy thus a valid claim for travel expenses has 

been made.” Reply, pp. 12-13. Again, neither party cites to the 

record or otherwise provides a total amount for these expenses. 

However, in light of the record and the parties’ arguments, the Court 

understands defendant to specifically challenge plaintiff Abernathy’s 

request for reimbursement for air travel that purportedly lacks 

sufficient documentation. Documents supporting the expense request 

include a one-page document entitled, “TRAVEL EXPENDITURES FROM 

JANUARY 2013 TRIAL,” which provides the following breakdown: 

1. Gas - $33.52 

2. Rental Car & Insurance- $290.12 

3. Luggage Fee- $20.00 

4. Air Fare- $200.00 (1/2/13) 

5. Air Fare- $165.00 (1/7/13) 

 TOTAL: $708.64 

Exhibit 12, PAGEID#:3118, attached to Second Motion for Fees. 

 Similarly, another one-page summary entitled, “TRAVEL 

EXPENDITURES FROM AUGUST 2013 TRIAL,” provides the following 

itemization: 

1. Air Fare- $259.30 (8/4/13) 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 53 of 61 PAGEID #: <pageID>
54 

2. Air Fare- $182.80 (8/10/13) 

3. Rental Car & Insurance- $524.94 

 TOTAL: $967.04 

Exhibit 13, PAGEID#:3125. 

 The documents supporting both of these itemizations include 

receipts for gas; rental car receipts with plaintiff Abernathy listed 

as the driver; a US Airways receipt reflecting a round-trip flight 

from Florida to Ohio in August 2013 for plaintiff Abernathy; and two 

documents (one dated January 2, 2013 and one dated January 7, 2013) 

reflecting “Payment Sent” from a PayPal Account with the subject line 

“Litigation Travel Expense; AirFare – Abernathy, et. al. v. 

Corinithinan Colleges” with the recipient and email address redacted. 

See Exhibits 12 and 13. Although plaintiff Abernathy’s expenses for 

airfare could have been more thoroughly documented, the Court finds 

that the present record adequately establishes her right to 

reimbursement for travel expenses. Cf. Waldo, 726 F.3d at 827 

(stating that the district court may use its best judgment in 

determining whether claimed expenses are reasonable and necessary). 

Third, defendant challenges expenses related to “local mileage 

and local parking expenses that any litigant would incur.” Memo. 

Contra, p. 15. Plaintiff Abernathy does not address this challenge. 

See generally Reply; Third Motion for Fees. As detailed supra, 

plaintiff seeks $100.00 for parking, Exhibit A and Exhibit 1, attached 

to Second Motion for Fees, and $33.52 for gas, Exhibit 12, 

PAGEID#:3118 - PAGEID#:3120, attached to Second Motion for Fees. The 

Court agrees with defendant that any litigant would incur such fees. 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 54 of 61 PAGEID #: <pageID>
55 

Accordingly, the Court concludes that its discretion is better 

exercised in denying the request for these expenses, which total 

$133.52. Cf. Tinch v. City of Dayton, 199 F. Supp. 2d 758, 771 (S.D. 

Ohio 2002) (denying a request to recover, inter alia, expenses 

incurred at a local parking garage because the cost was not one listed 

as recoverable under 28 U.S.C. § 1920). 

 Finally, defendant challenges the request for reimbursement of 

costs associated with the depositions of individuals who had no 

knowledge of and were irrelevant to the claims of plaintiff Abernathy, 

namely, the depositions of Jennifer Brown, Lawana Shipley, Renee Fall, 

Pamela LeMaster, Billie Barz and Deneen Merchant. Memo. Contra, pp. 

15-16. For the reasons discussed supra, defendant’s argument is welltaken. In wading through the deposition-related invoices, the Court 

notes that plaintiff Abernathy appears to have submitted the same 

invoice more than once. Compare, e.g., Exhibit 7, PAGEID#:3073 

(invoice dated February 2, 2011 for $350.00 for costs associated with 

proofreader charges for the deposition of Renee Fall), with

PAGEID#:3075 (same). See also id. at PAGEID#:3056 (listing both 

expenses in a list of deposition expenses). To the extent that the 

Court can reconstruct these matters, these impermissible deposition 

expenses total $2862.55. See Exhibit 7, PAGEID#:3068 (Pamela 

LeMaster’s deposition costs totaling $178.80), PAGEID#:3069 

(deposition costs of Billie Barz, Pam LeMaster and Deneen Merchant 

totaling $165.00), PAGEID#:3070 (Pamela LeMaster’s deposition costs 

totaling $212.50), PAGEID#:3071 (deposition costs of Billie Barz and 

Deneen Merchant totaling $254.35), PAGEID#:3072 (Renee Fall’s 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 55 of 61 PAGEID #: <pageID>
56 

deposition costs totaling $695.65), PAGEID#:3073 (Renee Fall’s 

deposition costs totaling $350.00), PAGEID#:3074 (Renee Fall’s 

deposition costs; reporter attendance; totaling $247.50), PAGEID#:3075 

(Renee Fall’s deposition costs totaling $350.00), PAGEID#:3078 (Renee 

Fall’s deposition costs totaling $96.25), PAGEID#:3079 (Renee Fall’s 

deposition costs totaling $312.10). Accordingly, as it relates to the 

request for reimbursement for expenses, it is RECOMMENDED that the 

three motions for fees be GRANTED in part and DENIED in part. 

Specifically, the request for reimbursement for the following expenses 

should be denied: (1) $300.00 for a jury fee; (2) $133.52 for local 

mileage and local parking; and (3) $2862.55 for the costs associated 

with the depositions of Jennifer Brown, Lawana Shipley, Renee Fall, 

Pamela LeMaster, Billie Barz and Deneen Merchant. Subtracting these 

amounts (totaling $3,296.07) from plaintiff Abernathy’s request for 

expenses totaling $15,363.88 results in an expense award of 

$12,067.81. It is therefore RECOMMENDED that plaintiff Abernathy be 

awarded $12,067.81 in expenses. 

D. Prejudgment Interest 

 The jury awarded plaintiff Abernathy $3,500.00 in compensatory 

damages on her retaliation claim. Jury Verdict, pp. 2-3. In moving 

for an award of attorney’s fees and expenses, plaintiff Abernathy also 

asks for prejudgment interest on the jury award. However, apart from 

referring to the request in the caption of a motion, Plaintiff’s 

Motion for an Award of Attorneys Fees, Costs and Prejudment [sic]

Interest,” ECF 167, and a single sentence in that motion, Id. at 16. 

(“Plaintiff also requests prejudgment interest on the jury verdict 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 56 of 61 PAGEID #: <pageID>
57 

award of three thousand five hundred dollars ($3500.00)”), plaintiff 

offers no support for that request. Defendant does not address the 

request for prejudgment interest. 

 An award of prejudgment interest “serves to compensate for loss 

of use of money due as damages from the time the claim accrues until 

judgment is entered, thereby achieving full compensation for injury 

those damages are intended to redress.” West Virginia v. United 

States, 479 U.S. 305, 311 n.2 (1987). In this circuit, courts 

typically award prejudgment interest on an award of back pay. See, 

e.g., EEOC v. Kentucky State Police Dep’t, 80 F.3d 1086, 1098 (6th 

Cir. 1996) (“Indeed, it is ordinarily an abuse of discretion not to 

include pre-judgment interest in a back-pay award.”) (citations and 

internal punctuation omitted); EEOC v. Wilson Metal Casket Co., 24 

F.3d 836, 842 (6th Cir. 1994) (“This court commonly awards prejudgment 

interest on back pay awards.”). Otherwise, “awards of prejudgment 

interest in Title VII cases are within the discretion of the trial 

court ‘in the absence of a statutory provision to the contrary.’” 

JPMorgan Chase Bank, N.A. v. First Am. Title Ins. Corp., Nos. 12-2094; 

13-1172, 2014 U.S. App. LEXIS 12519, at *25 (6th Cir. July 2, 2014) 

(quoting EEOC v. Wooster Brush Co. Emps. Relief Ass’n, 727 F.2d 566, 

579 (6th Cir. 1984)). See also Lentz v. City of Cleveland, Nos. 07-

4385/07-4386, 333 Fed. Appx. 42, at *51 (6th Cir. June 4, 2009) (“But 

awarding prejudgment interest is at the discretion of the district 

court . . . and the court did not deem it necessary.”); Scales v. J.C. 

Bradford & Co., 925 F.2d 901, 909 (6th Cir. 1991) (“The award or 

denial of pre-judgment interest is within the sound discretion of the 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 57 of 61 PAGEID #: <pageID>
58 

trial judge.”). In the present case, the Court is unable to conclude 

that the $3500.00 jury award qualifies as back pay and finds that an 

award of prejudgment interest on that amount is unwarranted. 

 First, plaintiff Abernathy does not argue, and presents no 

evidence, that the $3500.00 jury award constitutes a back pay award. 

The verdict form simply awards compensatory damages in that amount 

with no characterization of the award as back pay. See Verdict Forms, 

ECF 157, PAGEID#:2838. Similarly, the judgment entered in this case 

does not specifically reference prejudgment interest. Clerk’s 

Judgment, ECF 162 (“IT IS ORDERED AND ADJUDGED that pursuant to the 

August 9, 2013 jury verdict, Plaintiff recover of the Defendant the 

sum of $3,500.00 with interest thereon at the rate of 0.12% as 

provided by law, and her costs of action.”). See also 28 U.S.C. § 

1961 (requiring district courts to award post-judgment interest “on 

any money judgment in a civil case”). Finally, plaintiff Abernathy’s 

closing argument, which sought a very different amount of back pay 

loss, further undermines any argument that the compensatory damages 

was actually awarded as back pay: 

You heard testimony from Tracy [Abernathy] about her 

damages. She should have been awarded the position. The 

position paid more than what she was making and she 

assessed her damages from the denial of the promotion at 

about $36,000. That’s her back pay loss. We’re asking 

that you award that to her as back pay. 

Transcript of Trial Proceedings, ECF 178, PAGEID#:3454. Based on this 

record, the Court cannot conclude that the $3500.00 jury award 

constitutes back pay. 

 Second, the Court notes that the Amended Complaint, ECF 11, 

contains no request for prejudgment interest. See id. at 6 (asking 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 58 of 61 PAGEID #: <pageID>
59 

the Court to grant, inter alia, “such other and further relief as may 

be just and equitable”). See also, e.g., Silge v. Merz, 510 F.3d 157, 

160 (2nd Cir. 2007) (“We now hold, to the extent it was previously 

unclear, that the conventional additional demand for ‘such other and 

further relief as the Court deems just and proper’ does not constitute 

a demand for prejudgment interest.”). Likewise, plaintiff Abernathy’s 

attorney’s fee statements and damage calculations provided to 

defendant are silent on the issue of prejudgment interest. See 

Exhibits A-2, A-3 and A-4. Instead, on the record presently before 

the Court, it appears that plaintiff’s first request for prejudgment 

interest surfaced on September 30, 2013, more than two and a half 

years after this action was filed, as a conclusory sentence in the 

First Motion for Fees. Stated differently, neither defendant nor this 

Court had any notice of plaintiff Abernathy’s intent to seek 

prejudgment interest. Where a party has failed to assert a request 

for prejudgment interest, the district court has the discretion to 

deny a request for the award of such interest. Cf. Scales, 925 F.2d 

at 909 (“Because Scales did not request any prejudgment interest in 

her damage calculation, we find no abuse of discretion in this 

case.”); Grant v. Shaw Envtl., Inc., No.: 3:08-CV-350, 2012 U.S. Dist. 

LEXIS 44219, at *6-8 (E.D. Tenn Mar. 28, 2012) (refusing to deny award 

of prejudgment interest, even though the defendant argued that it was 

“surprised” by the request, where, inter alia, the plaintiff had pled 

a claim for prejudgment interest in the complaint). Considering the 

present record as a whole, including plaintiff Abernathy’s wholly 

deficient conclusory request, the Court concludes that its discretion 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 59 of 61 PAGEID #: <pageID>
60 

is better exercised in denying the request for prejudgment interest. 

Accordingly, as it relates to prejudgment interest, it is RECOMMENDED

that the three motions for fees be DENIED. 

WHEREUPON, it is RECOMMENDED that Plaintiff’s Motion for an Award 

of Attorneys Fees, Costs and Prejudment [sic] Interest, ECF 167, 

Plaintiff’s Motion for Leave to Supplement Instanter Motion for 

Attorney’s Fees, Costs and Prejudgment Interest, ECF 169, and Third 

Motion for Leave to Supplement Instanter Motion for Attorney’s Fees, 

Costs and Prejudgment Interest, ECF 195, be GRANTED in part and DENIED 

in part consistent with the foregoing. In summary: 

 It is RECOMMENDED that $250.00 is an appropriate hourly 

rate; 

 It is RECOMMENDED that the request for an award of fees 

relating only to the claims abandoned by Ms. Shipley and 

Ms. Brown be DENIED; 

 It is RECOMMENDED that the request for an award of fees 

relating to the state court action be GRANTED;

 It is RECOMMENDED that the request for an award of fees 

relating to local travel time be DENIED; 

 It is RECOMMENDED that the request for an award of fees for 

205.9 hours expended on 2059 email communications be 

DENIED; 

 It is RECOMMENDED that plaintiff Abernathy recover, in 

connection with time spent pursuing the requests for 

attorney’s fees, no more than 3% of the total hours 

expended on this litigation, i.e., 19.67 hours; 

 It is RECOMMENDED that an across-the-board reduction of 75% 

be applied to reflect deficiencies in the Billing Records

as well as plaintiff Abernathy’s limited success in order 

to reflect hours “reasonably expended”; 

 It is RECOMMENDED that plaintiff Abernathy be awarded 

$42,202.50 in attorney’s fees; 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 60 of 61 PAGEID #: <pageID>
61 

 It is RECOMMENDED that the request for reimbursement for 

the following expenses be DENIED: (1) $300.00 for a jury 

fee; (2) $133.52 for local mileage and local parking; and 

(3) $2862.55 for the costs associated with the depositions 

of Jennifer Brown, Lawana Shipley, Renee Fall, Pamela 

LeMaster, Billie Barz and Deneen Merchant; 

 It is RECOMMENDED that plaintiff Abernathy be awarded 

$12,067.81 in expenses; and 

 It is RECOMMENDED that the request for prejudgment interest 

be DENIED. 

If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b).

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

August 29, 2014 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

Case: 2:10-cv-00131-MHW-NMK Doc #: 198 Filed: 08/29/14 Page: 61 of 61 PAGEID #: <pageID>