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v.
USAG
Marin v . USAG 05-DS-247-SM 10/10/07 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Carmen Marquez Marin, Plaintiff N.H. Civil N o . 05-ds-247-SM v. P.R. Civil N o . 05-cv-1619-HL Opinion N o . 2007 DNH 124 Peter D. Keisler, Acting United States Attorney General 1 , Defendant
O R D E R
Following a seven day civil trial, the jury returned a verdict in favor of plaintiff, Carmen Marquez Marin (“Marquez”), concluding that her employer, the United States Department of Justice (the “DOJ”), unlawfully retaliated against her (i.e., terminated her employment) because she engaged in protected activity. It awarded Marquez $136,325.00 in compensatory damages. Interestingly, however, although the parties stipulated that Marquez’s lost pay, properly calculated, amounted to $180,420.00, the jury declined to award her any back pay as part of the compensatory award.
issue (or any other) to the jury for an advisory verdict, instead reserving to itself any necessary decisions regarding the equitable remedies of front pay and/or reinstatement.
exactly why the jury decided not to award Marquez back pay damages, one plausible explanation is that the jury decided that Marquez, a probationary employee, would likely have been let go anyway, for legitimate reasons, even absent the found discriminatory animus. Marquez disputes that interpretation, pointing out that this was not a “mixed motive” case and, given its verdict, the jury necessarily rejected the government’s assertion that Marquez was fired for entirely non-discriminatory reasons. Both points are correct. But, the fact that the jury was not instructed on mixed motive did not prevent it from concluding, for the purpose of awarding damages, that Marquez, a probationary employee, was not likely to have been retained as a permanent employee. In other words, the jury could have reasonably concluded that even if the DOJ had not unlawfully discriminated against her, it likely would have still terminated her employment for the legitimate reasons argued by the government throughout the trial. Accordingly, the jury could reasonably have awarded substantial compensatory damages for the undeserved emotional harm inflicted on Marquez by the DOJ’s discriminatory action, but also declined to award damages for lost pay.
The jury’s verdict in favor of Marquez on her retaliation claim reflects its considered judgment that there was a causal connection between her having engaged in protected activity and the DOJ’s decision to terminate her employment. But, given the evidence introduced at trial, the jury could also have reasonably concluded that, for good reasons, senior managers in the office did not like Marquez’s attitude, were not impressed with her work or work ethic, and/or concluded that she was not a good “fit” for the office. Consequently, the jury could have reasonably concluded that her probationary status simply would not have matured into permanent employee status. The evidence presented supports an inference that the DOJ would have let Marquez go before her probationary period expired, even absent the unlawful discrimination against her.
Here, the jury’s intent is fairly evident. It was fully and properly instructed on the issue of back pay damages. Moreover, when the jury returned its verdict awarding no back pay damages, the court submitted a special question inquiring about its verdict in that respect. The court also provided the jury with supplemental instructions on the issue before resubmitting the question of back pay damages. The jury confirmed its verdict. Given that the jury was properly instructed on the issue, that it reconsidered the question, that it is presumed to have followed the court’s instructions, and that it’s verdict is consistent with a reasonable assessment of the import of the evidence presented at trial, Marquez has failed to carry her burden with regard to overturning that verdict.
court of appeals for this circuit has noted, “reinstatement is the ‘overarching preference’ among all equitable remedies under the [Act], as it most efficiently furthers ‘the dual goals of providing full coverage for the plaintiff and of deterring such conduct by employers in the future.’” Quint v . A.E. Staley Mfg. Co., 172 F.3d 1 , 19 (1st Cir. 1999) (quoting Selgas v . American Airlines, Inc., 104 F.3d 9, 12 (1st Cir. 1997)).
Reinstatement, even to a probationary status, serves the important function of negating the DOJ’s unlawful and injurious conduct in a practical as well as theoretical way. The court trusts that the current United States Attorney and her administration will proceed in a lawful, fair, non-vindictive, and non-discriminatory manner with regard to Marquez’s employment and future career.
demanding (though that is hardly an unusual trait among successful litigators). But, on the other hand, she seemingly enjoyed unqualified and enthusiastic support among the federal and commonwealth law enforcement personnel with whom she worked. Indeed, law enforcement officers testified persuasively and emphatically that it was the new and inexperienced Marquez who quickly established a reputation as a “go-to” prosecutor, while her more experienced supervisors seemed content to let their cases languish unattended. Marquez worked long hours, was always available, and in at least one important case, she revived a dormant investigation, organized i t , reinvigorated i t , and successfully obtained numerous indictments. She was enthusiastically credited with having made the case and she received a special invitation from the DEA to go to Washington, D.C., as part of the team that earned a prestigious national award from the Attorney General of the United States that recognized outstanding law enforcement work on that very case.
demonstrate “cause” to terminate her employment. Those charges were not only unwarranted and unfair, but certainly professionally devastating and no doubt personally devastating as well.
community for similar services provided by lawyers of reasonably comparable skill, experience, and reputation. The DOJ also asserts that Attorney Berkan and Attorney Mendez spent an inordinate amount of time on some aspects of case preparation. And, finally, the DOJ says some of the costs and expenses incurred by Marquez’s counsel were inadequately documented, unnecessary, and/or generally not recoverable. The court disagrees.
Urban v . Jefferson Cty. Sch. Dist., 89 F.3d 7 2 0 , 729 (10th Cir. 1996) (citing Hensley, 461 U.S. at 4 3 6 ) .
light of the complexity of this case, the special qualifications, expertise, and experience of counsel, the volume of work performed by counsel, the substantial economic risk assumed by counsel in taking this case, the length of time between the filing of plaintiff’s complaint and the jury’s resolution of her claim (during which time counsel received no compensation), and the ultimate successful resolution of this matter. See generally Hensley, 461 U.S. at 448-49.
always translates into far more legal effort being required than does litigating against entities who also have to pay legal bills. And, this particular case predictably required a long time to complete, during which period counsel not only were not being paid for any of their work, but were also expending tens of thousands of dollars of their own funds to cover unavoidable litigation expenses that Marquez could not afford to pay in advance.
termination, as well as the termination letter itself, from her Official Personnel File and from any other government files into which those documents might have been placed.
Plaintiff’s motion for attorneys’ fees and costs i s , for the reasons set forth above, as well as those articulated in plaintiff’s memorandum and supporting documentation, granted. Marquez i s , then, awarded a total of $427,491.80 as reasonable costs and attorneys’ fees, which includes the following sums:
1. $320,025.00 in attorneys’ fees for the work of Attorney Judith Berkan;
2. $74,573.80 in attorneys’ fees for the work of Attorney Mary Jo Mendez; and 3. $32,893.00 in litigation costs and expenses.
The Clerk of Court shall enter judgment in accordance with this order and close the case.
SO ORDERED.