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) 6/12/2017
Plaintiff, ) Greene County Circuit Court
v. ) Division 1
) Case No.: 1531-CC00465
Defendant. )



Pending before the Court is Plaintiffs Motion to Amend Judgment to Include

Attorneys Fees, Litigation Costs and Promotion or Other Equitable Relief. Plaintiff has

filed suggestions in support of his motions, and Defendant has filed suggestions in

opposition to Plaintiffs motions. In addition the Court has heard the capable argument

of counsel on the issues joined.

The Court now grants Plaintiffs Motion to Amend the Judgment to Include

Attorneys Fees and Litigation Costs, and denies Plaintiffs Motion for Promotion or

Other Equitable Relief.

Motion to Amend Judgment to Include Attorneys Fee and

Litigation Costs.

Plaintiffs application for attorneys fees and costs was presented to the Court and

supported by evidence consisting of affidavits, exhibits, and testimony. Upon

consideration of the evidence presented, and the law applicable to the issues, the Court

awards Plaintiff an additional amount of damages as attorney fees in the amount of

$118,233.00, together with costs in the amount of $2,321.24, for a total additional

award of $120,554.34. The Court will issue an Amended Judgment to reflect this

additional award of damages.

The parties have each capably briefed the law pertaining to the award of post-

judgment attorneys fees, and it would serve no ultimate purpose for the Court to repeat

that in this context. In short, Missouri law provides that a court may award court costs

and reasonable attorney fees to the prevailing party. Section 213.111.2 RSMo.

Plaintiff claims that he is the prevailing party and that he is entitled to a post-

judgment award of attorney fees. The Court is satisfied that Plaintiff is the prevailing

party as against the Defendant. Alhalabi v. Missouri Dept of Natural

Resources, 300 S.W.3d 518 (Mo. Ct. App. E.D. 2009) A prevailing party is one that

succeeds on any significant issue in litigation which achieved some of the benefit the

parties sought in bringing suit. Id. At 530.

In consideration of a just fee that should be awarded, the Court must use its own

experience and presumed expertise in the analysis of attorney fee applications. In

addition the Court considers a number of factors in the analysis of a reasonable attorney

fee, including: 1) the rates customarily charged by the attorneys involved in the case and

by other attorneys in the community for similar services; 2) the number of hours

reasonably expended on the litigation; 3) the nature and character of the services

rendered; 4) the degree of professional ability required; 5) the nature and importance of

the subject matter; 6) the amount involved or the result obtained; and 7) the vigor of

the opposition. See Gilliland v. Mo. Athletic Club, 273 S.W.3d 523 (Mo. banc

The Court, having considered the detailed time records of Plaintiffs attorneys,

the affidavits of Plaintiffs attorneys, the affidavit of [another] local attorney with

expertise in employment litigation and the Courts own observation of the pre-trial and

trial work of Plaintiffs counsel finds as follows: 1) The rate charged by Plaintiffs

counsel, while perhaps higher than that charged by counsel for Defendant, was in fact

contingent on an uncertain outcome. The rate is similarly slightly higher than what may

be charged by experienced attorneys in the immediate venue of the case. However, the

Court finds it not unreasonable that Plaintiff would seek counsel out of the immediate

locale in effort to pursue this litigation against this particular employer. Therefore, the

Court finds the rate charged by Plaintiffs counsel is reasonable in all respects; 2) The

number of hours charged by Plaintiffs counsel is reasonable in all respects, with the

exception of travel time discussed below; 3) The nature and character of the service

provided Plaintiff by his counsel was superior in all respects and evidenced by an

unwavering dedication to the pursuit of Plaintiffs claims; 4) Plaintiffs counsel, while

not previously known to the Court, are nonetheless experienced and capable in the

handling and trial of employment cases; 5) The Court is satisfied the nature of Plaintiffs

claims are important, and the jurys verdict in his favor merely confirms that conclusion;

6) The result obtained on behalf of Plaintiff was based on the jurys evaluation of

Plaintiffs special and general damages and presumably was awarded in an amount so as

to fully compensate Plaintiff for his damages; and 7) The attorneys for the Defendant are

experienced, skilled, capable, and did vigorously represent and defend Defendant in

response to all aspects of Plaintiffs claims. Based on this analysis, the Court does not

hesitate in awarding Plaintiff his reasonable attorney fees and costs.

Plaintiff seeks at total fee award of $150,27o.00 together with expenses of

$2,321.34. Defendant has suggested that the fee award sought is excessive based on,

inter alia, excessive number of hours expended, excessive hourly rate, limited skill level

required, limited damage award and excessive billing. The Court has carefully reviewed

the billing records of Plaintiffs counsel in light of the analysis of Defendant. While the

Court is generally satisfied as analyzed above, the Court does remove travel time from

the hours billed at the full rate as that activity does not merit the skilled billing

component. In addition, the Court is mindful that a substantial portion of the Plaintiffs

effort was in pursuit of persuading the jury that the Defendant should be responsible for

punitive or exemplary damages. Plaintiff did not prevail on that claim. Therefore some

reduction in the overall fee is required to account for that issue.

After removing the travel time (admittedly somewhat difficult as the time records

were not kept for this purpose, 36 hours at $400; and 12 hours at $375) and reducing

the remaining statement by 10% based on the punitive damage issue, the Court will

award Plaintiff the additional amount of $118,233.00 together with expenses of


Motion to Amend Judgment to Include Promotion of Other

Equitable Relief.

In addition to the compensatory damages awarded by the jury, and the post-

judgment award of attorneys fees and expenses to be awarded by the Court, Plaintiff

suggests to the Court that it [has] [should exercise] equitable power to order Defendant

to promote Plaintiff in rank [from current rank of corporal to the higher rank of

sergeant.] In addition, or in alternative to, the request for promotion, Plaintiff suggests
the Court exercise its equitable power to order Defendant to award Plaintiff front pay

(calculated as the difference between sergeant pay and corporal pay for the applicable

period) and additional pension benefits that would have accrued had Plaintiff been

earning at the higher sergeant pay level.

Each of these equitable requests are based upon Plaintiffs conclusion stated in

his suggestions as:

It is clear from the jurys verdict that plaintiff was denied a promotion

due to his race. In other words, absent race discrimination, he would be a

Sergeant today at the top of the pay scale.

This Court can draw no such clarity or conclusion from the jurys verdict. Simply

put, given the state of the law in Missouri, the jury was not asked whether or not

Plaintiff should have been promoted. Nor was the jury asked whether or not, absent his

race, Plaintiff would have been promoted. Nor was the jury asked whether or not

Plaintiffs race was a substantial, or important, or motivating, or even a significant factor

in Plaintiffs lack promotion.

The only query made of the jury was to determine whether or not Plaintiffs race

was a contributing factor in such failure to promote. See: Instruction No. 6. Plaintiff

was free to, and did argue to the jury, and properly so, that his race need only have

contributed in the smallest amount in the decision not to promote in order for him to

obtain a verdict. Plaintiff was never required to persuade the jury that had it not been

for his race he would have been promoted, nor was the jury required to make such a


Given the law as submitted to the jury [the Court does not suggest the jury was

not properly instructed in compliance with MAI] it is perhaps equally likely that the jury
concluded that the Defendants decision not to promote Plaintiff was entirely proper

based on all the circumstances then under consideration, but that indeed his race

contributed in some [small] manner. Without doubt the Court cannot know what was in

the mind of the jury when they considered the evidence, applied the law, and rendered

the verdict. Neither can the Court purport to grant equitable relief based on a

conclusion the jury was never asked to render.

This Court must conclude, and be guided by the proposition that the jury applied

the law they were given and did in fact award Plaintiff such sum as they believed would

fairly and justly compensate him for any damages they believe Plaintiff sustained and is

reasonably certain to sustain in the future as a direct result of the occurrence mentioned

in the evidence. See: Instruction No. 7.

Plaintiffs motion for equitable relief is denied.

Dated: _________ _______________________
Michael J. Cordonnier, Circuit Judge
Greene County Circuit Court, Div. 1