MIKE DEVOLDER, - Complainant, and IOWA CIVIL RIGHTS COMMISSION,



VS.

FRIEDMAN MOTOR CARS, LTD., MIKE FRIEDMAN, SCOTT HENRY, AND PAT SULLIVAN, Respondents.

FINDINGS OF FACT

Procedural History:

1A. After a five day public hearing, on April 1-5, 1991, concerning three interrelated complaints of race and sex discrimination filed, respectively, by Commissioner Orlando Ray Dial (CP # 06-89-18956), Complainant Cristen Harms (CP # 11-89-19422), and Complainant Mike DeVolder (CP # 12-89-19466), a proposed decision was issued in which the Complainants prevailed on substantially all their allegations. This proposed decision was unanimously adopted in full by the Iowa Civil Rights Commission on February 28, 1992 and was incorporated by reference into the Commission's Final Decision and Order. These Findings of Fact and Conclusions of Law have a combined numerical and alphabetical designation to distinguish them from the Findings of Fact and Conclusions of Law adopted by the Commission on February 28, 1992.

2A. The Final Decision and Order was "final in all respects except for the determination of the amount of attorney's fees." As an alternative to conducting a hearing on the attorney's fee issue, Complainant DeVoider and Respondents Friedman Motorcars, Ltd., Mike Friedman, Scott Henry, and Pat Sullivan entered into a stipulation providing that "the issue of Mr. DeVoider's attorneys' fees and expenses may be heard by the Iowa Civil Rights Commission, pursuant to the written pleadings presented to the Iowa Civil Rights Commission by both parties, and that the information provided in these written pleadings will be substituted and take the place of any hearing on a request by Mike DeVoider for attorney's fees." The stipulation was entered in an order by the Administrative Law Judge on or about June 24, 1992.

Claims for Attorney's Fees November 20, 1989 Through June 30,1992;

3A. Complainant Mike DeVolder's Reply Brief, filed on July 15, 1992, included a detailed, itemized claim of Attorney Fees and Expenses which requested a total of $23,807.50 in fees for attorney and paralegal work performed from November 20, 1989 through June 30, 1992 at rates varying from $45.00 to $120.00 per hour for a total of 221.6 hours of work. One hundred seventy-three (173) hours or seventy-eight percent (78%) of this work was performed by attorney Paul A. Curtis. Thirty-two and three tenths (32.3) hours or fourteen and six tenths percent (14.6%) of this work was performed by attorney Mariclare Thinnes. (Reply Brief - Exhibit A). Billings by these two attorneys account for 92.6% of the hours claimed.

Attorney's Fees Requested for Work on Petition for Judicial Review From Final Order of Commission:

4A. In his itemized claim, Complainant DeVoider includes claims for work on May 7, 11, and 15, 1992 pertaining to the Respondents' petition for judicial review of the final Commission decision. (Reply Brief - Exhibit A). The total amount of fees requested for work pertaining to the petition for judicial review is $16.00 + $120.00 + $32.00 = $168.00. These fees should be denied at this time, because all claims for work done before the district court on a petition for judicial review of a final decision of the Commission should be considered by the agency after remand by the district court and not before. See Conclusion of Law No. 12A. Therefore, the claim for attorney's fees should be reduced by $168.00. After this reduction the amount of attorney's and paralegal's fees through June 30, 1992 is ($23,807.50 -$168.00) or $23639.50.

Enhancement of Attorney's Fees Claimed Through June 30,1992:

5A. In his Reply Brief, Complainant DeVolder has asked for "an enhancement or upward adjustment of the fees awarded [for the period ending June 30,1992] in the amount of 15%" for contingency including both risk of nonpayment (in event the case had been lost) and delay in payment (due to the delay in payment in contingent fee cases under fee-shifting statutes whereby the attorney is not paid until after the completion of litigation, which may include litigation of the fee award itself). This increases the claim by the following amount: ($23639.50 X 15%) = $3545.93. Therefore, the claim for attorney's and paralegal fees through June 30, 1992 is: ($23639.50 + $3545.93) $27185.43.

Claim for Attorney's Fees Incurred in July 1992:

6A. In his Reply Brief, Complainant DeVolder also requests additional fees in the amount of $1320.00 for five hours for attorney Paul Curtis and nine hours for attorney Mariclare Thinnes for preparation, in July of 1992, of the reply brief on the attorney fees issue. Reply Brief at 2 n.1, 9. The request does not state the hourly rate used, but it appears to be $120.00 per hour for work by Paul Curtis and $80.00 per hour for work by Mariclare Thinnes. [(5 hours X $120.00 per hour) + (9 hours X $80.00 per hour)] = [$600.00 + $720.00] = $1320.00. This would be consistent with the $120.00 per hour rate charged for work by Paul Curtis on the rough draft of the initial fees application and brief on March 26, 1992 and the $80.00 per hour charged by Mariclare Thinnes for her work in 1992. This brings the total claim for attorney's fees and paralegal work through July 15, 1992 to ($27185:43 + $1320.00) or $28505.43.

Summary of Attorney's Fees Claims:

7A. Complainant DeVolder's claims for attorney's and paralegal's fees may be summarized as follows:

Amount	Description
$23807.50	Fees through 6/30/92 prior to either (a) elimination of fees for work done with respect to petition for judicial review of final decision or (b) enhancement for contingency.
-168.00	Less fees for work done with respect to petition for judicial review of final decision.
= $23639.50	Fees through 6/30/92 after elimination of fees for work done with respect to petition for judicial review of final decision and prior to enhancement for contingency.
+ 3545.93	Plus 15% enhancement for contingency. ($23639.50*.15)=$3545.93.
=$27185.43	Fees through 6/30/92 after elimination of fees for work done with respect to petition for judicial review of final decision and after enhancement for contingency.
+1320.00	Plus additional fees for work from July 1, 1992 through July 15, 1992.
= $28,505.43	TOTAL ATTORNEY AND PARALEGAL FEES.

(Reply Brief - Exhibit A; Application for Attorney Fees and Expenses hereinafter referred to as

"Application").

Total Expenses: .

8A. Complainant DeVolder also asks for a total of $237.51 in expenses through June 30, 1992. The expenses set forth are reasonable and even low for litigation of this complexity and should be awarded in their entirety. (Reply Brief - Exhibit A; Application).

Factors To Be Considered in Determining Hours Reasonably Expended and a Reasonable Hourly Rate:

9A. A variety of factors may be considered in determining the amount of attorneys fees including: (a) the time necessarily spent, (b) the difficulty of handling and importance of the issues, (c) the nature and extent of the service, (d) the preclusion of other employment by the attorney due to acceptance of the case, (e) time limitations imposed by the client or circumstances, (f) the standing and experience of the attorney in the profession, (g) the customary charges for similar services, (h) the "undesirability" of the case, (i) the nature and length of the professional relationship with the client, (j) awards in similar cases (k) the amount involved, responsibility assumed, and results obtained, and (1) whether the fee is fixed or contingent including delay in payment and risk of nonpayment for contingency fee cases. See Conclusions of Law Nos. 14A-16A.

The Time Necessarily Spent:

10A. Complainant DeVolder's attorney submitted detailed computer printouts of time records which present:

[T]ime entries for time spent on legal matters ... total time and a proposed billing based on normal hourly rates charged by [the] firm to clients of the firm ... The computer printout was not created for purposes of the application [for attorney's fees] but is a normal and regular part of [the] firm's bookkeeping and billing records. The computer printout shows the dates time was spent, the individual attorney or staff member performing the work, the actual time spent on each occasion, the hourly rate applicable to the time and costs by time entry.

(Affidavit of Paul A. Curtis in Support of Application for Attorney fees and Expenses, hereinafter referred to as "Affidavit").

11A. A careful examination of the time expended by counsel and paralegals on this case reveals that all of the time claimed by Complainant was reasonable and necessarily spent on this case. (It should be again noted that time expended on the Respondents' petition for judicial review of the final decision has already been excluded from DeVolder's claims.) Although Respondents have neither stated any objection to any particular items claimed by DeVolder nor disputed the accuracy of the time records submitted, the vast majority of which were originally set forth in DeVolder's application for fees filed on March 27, 1992, they have suggested that the time spent was excessive because, in their view, "the great bulk of legal time required in this action was to resolve legal issues which arose between the Commission; Cristen Harms; and the Respondents. Although extensive pleadings were filed in this matter, the bulk of the pleadings involved discovery issues between Cristen Harms and the Respondents." Respondents' Resistance to Complainant's Application for Attorney's Fees at 2. (hereinafter referred to as "Resistance").

12A. The record does not support Respondents' view for several reasons: First, it neglects the extent of discovery motions concerning DeVoider. On January 22, 1991, when Respondents filed a motion to compel discovery directed toward Cristen Harms, they also filed a motion to compel discovery directed toward Mike DeVoider. These motions were heard and ruled upon simultaneously. The ruling on Respondents' motion for continuance, filed on January 23, 1991, which was based on the need to complete discovery against not only Complainant Harms, but also Complainant DeVolder, affected all three cases.

13A. Second, time spent by Complainant DeVolder's counsel on discovery motions and pleadings concerning Cristen Harms and the Iowa Civil Rights Commission was minimal. It resulted in the generation of less than $2521.50 in fees, which amounts to less than 8.8 per cent of the total fees and less than 10.1 percent of the total fees when the 15% enhancement is excluded. These fees are reflected in the following time expenditures, which are either in whole or in part concerned with such matters (work performed with respect to these matters is underlined):

TOTAL FEES WHICH WERE PARTIALLY OR COMPLETELY DEVOTED TO DISCOVERY MOTIONS AND PLEADINGS CONCERNING COMPLAINANT HARMS AND IOWA CIVIL RIGHTS COMMISSION $2521.50.

(Application; Reply Brief -Exhibit A).

14A. Third, Respondents' position ignores the close relationship between all three complaints. See Findings of Fact Nos. 64, 66-67, 84-85, 102-05, 10709,116. If it had not been for Complainant DeVolder's actions as a secret informant, it is quite likely that there would have been no Commission investigation and no Commission initiated complaint would ever have been filed. See Findings of Fact Nos. 30-40,139. The retaliation DeVoider experienced was due, in part, to his involvement in the Commission's investigation. See Findings of Fact Nos. 107-109. The race and sex discrimination in public accommodations and employment alleged in the Commission's and Cristen Harms' complaints involve essentially the same incidents of discrimination as those which adversely affected the work environment of Mike DeVoider. See Findings of Facts Nos. 23, 29-30, 36-37, 49, 56-61, 64, 66-67, 76, 84-85, 102-105, 136. The retaliation DeVolder experienced was also due to his own internal complaints and actions taken in resistance to these discriminatory practices. See Findings of Fact Nos. 106-07, 109, 111-113. The successful prosecution of the Commission's and Cristen Harms' allegations was important to DeVolder's case and the time expenditures by DeVoider's attorney which were pertinent to those allegations were necessary and proper.

The Difficulty of Handling and Importance of the Issues:

15A. The variety, difficulty, complexity, and importance of the factual and legal issues in this case are as great as any ever heard by the Iowa Civil Rights Commission. Particularly novel or complex issues are underlined below. With respect to DeVolder's complaint, pertinent legal issues included, but are not limited to, the following procedural issues: (a) Whether failure to follow certain procedural rules with respect to the probable cause finding and conciliation required dismissal of DeVolder's complaint, (b) whether service of the Notice of Hearing on Respondent Sullivan's attorney was legally sufficient to effect service on Respondent Sullivan; (c) whether DeVolder had sufficient standing to file a complaint based on the allegations of race and sex discrimination stated therein; (d) whether the maintenance of a racially and sexually hostile working environment as well as the continued retaliatory abuse of Complainant DeVolder constituted continuing violations, (e) whether the Commission was barred, under the doctrine of issue preclusion, from determining whether DeVoider's discharge was due to retaliation, and (f) whether the Respondents' motion for change of venue seeking a Change of Administrative Law Judges was properly denied.

16A. Substantive legal issues included, but are not limited-to: (a) what are the proper orders and allocations of proof in cases relying on direct evidence for proof of various allegations of discrimination as compared to cases relying on circumstantial evidence?; (b) what is the proper order and allocation of proof in sexual harassment cases? (c) what is the proper standard to apply in regard to determining what behavior is reasonably considered to be offensive in sexual harassment cases and whether such conduct is sufficiently severe and pervasive enough to create an abusive working environment?; (d) what are the elements which must be shown to prove a claim of sexual or racial harassment when the harassment is directed at employees of a different race and/or sex than the complainant? (e) what is the proper order and allocation of proof in retaliation cases?, and (f) does employee misconduct resulting directly from illegal retaliation or discrimination constitute a legitimate reason for discharge?

17A. Remedial issues included: (a) what are the proper standards for determination of back pay? (b) what are the proper standards for determination of damages for physical pain and suffering and emotional distress? (c) what are the appropriate legal standards applicable to determining awards of interest? and (d) what remedies are suitable for cases of this nature involving race and sex discrimination in employment and public accommodations and retaliation. This list, of course, does not take into account the variety of issues involving attorney's fees discussed herein.

The Nature and Extent of the Service:

18A. The time records of the Complainant's attorneys indicate that the services provided by his law firm in this matter extended from approximately two weeks before the time the complainant filed a complaint to July 1992. (Reply Brief and Exhibit A). The attorneys provided a full and varied range of services in this case including assistance with completion of the charge, assistance with the investigation and a successful motion for reconsideration, discovery matters, successful resistance to Respondents' petition for judicial review of discovery orders of the administrative law judge, successful prosecution of the case at trial, the filing of briefs, and the litigation of the attorneys fees issues.

The Preclusion of Other Employment by the Attorney Due to Acceptance of the Case:

19A. In a case requiring the number of hours of work which have been expended in this case, it may be reasonably inferred that the Complainant's attorneys had to forego some other employment for which those hours could have been expended. This conclusion is also supported by evidence in the record. (Affidavit).

The Standing and Experience of the Complainant's Attorneys in the Profession:

20A. Official notice is taken of the following facts which are readily capable of certain verification through reference to the 1992 edition of the Martinddale-Hubbell Law Directory, Fairness to the parties does not require that they be given the opportunity to contest these facts:

A. Paul A. Curtis received his Juris Doctor degree at the University of Michigan in 1982. He was admitted to the bar in Iowa in 1983. He is a member of the Polk County, Iowa State and American Bar Associations. He is a member of the Labor and Employment Law and Litigation Sections of the ABA.

B. Mariclare Thinnes received her Juris.Doctor degree with distinction at the University of Iowa in 1990. She was admitted to the bar in Iowa in 1990. She is a member of the Iowa State and American Bar Associations.

C. Although neither Mr. Curtis nor Ms.Thinnes are individually rated in the Directory, "Martindale-Hubbell does not undertake developing ratings for every listed lawyer. The absence of a rating should not be misconstrued. Some lawyers have requested their ratings not be published. In other instances, definitive information has not yet been completely developed."

D. The complainant's law firm of Gamble & Davis is "AV" rated by Martindale-Hubbell. This is the highest attainable rating. The first letter in this rating represents a rating, based on confidential surveys of members of the bar and the judiciary, of legal ability. "[I]t takes into consideration experience, nature of practice and qualifications relevant to the profession." The "A" rating represents a rating of legal ability "from Very High to Preeminent."

E. The second letter in this rating represents the general recommendation rating. This rating "embraces faithful adherence to professional standards of conduct and ethics of the legal profession, professional reliability and diligence, and standards relevant to the attorney's discharge of his professional responsibilities." A "V"rating reflects a "Very High" general recommendation.

21A. The Administrative Law Judge would rate the quality of trial and motion practice of Mr. Curtis as high. The same would be true with respect to the research done by him and other attorneys with Gamble & Davis as reflected in the claims for fees. Of course, not all legal propositions set forth by Complainant's attorneys on brief or in argument were accepted, but that is to be expected in the normal course of events. Some measure of the quality of the performance of the counsel for a prevailing party may be reflected by the quality of his or her opposition. The Respondents' attorney, Patrick W. Brick, is an experienced and highly skilled trial lawyer. Official notice is taken, based on the Martindale Hubbell Law Directory, that both Mr. Brick, and the law firm, Brick, Seckington, Bowers, Swartz & Gentry, are "AV" rated. Fairness to the parties does not require that they be given the opportunity to contest these facts.

The Customary Charges For Similar Services:

22A. The billing submitted by Complainant's attorneys is "based on normal hourly rates charged by our firm to clients of the firm." (Affidavit). Official notice is taken of the 1992 Martindale Hubbell Law Directory listing for Gamble & Davis which indicates 25 attorneys are members of the firm. Official notice is taken of the fact that these rates are not out of line for attorneys of similar experience in law firms of this quality, size, and prominence engaged in the practice of employment discrimination law in the Des Moines area. Fairness to the parties does not require that they be given the opportunity to contest these f acts.

23A. The hourly rates requested for work by attorneys Paul Curtis and Mariclare Thinnes are as follows:

24A. Taking into account the location of Gamble & Davis in a large,metropolitan area, which is the capital of the state, the size of the firm, the relative seniority and experience of the attorneys, and the increase of fees overtime, the hourly rates requested are reasonable. It can be reasonably inferred that the higher-than-average hourly rates of Mr. Curtis are due, in part to his being with a large firm with which he has longer seniority than Ms.Thinnes. Her lower-than average rates may be due to her having less experience and seniority than Mr. Curtis. These conclusions are supported by reference to the following facts which are derived from the 1990 Economics Survey of the Iowa State Bar Association. Official notice is taken of the following facts. Fairness to the parties does require that they be given an opportunity to contest these facts:

A. The survey is a statewide survey of attorneys to obtain economic information relating to the practice of law for the calendar year 1990. It therefore encompasses both metropolitan and rural areas. There is support in the survey for the "common perception that lawyers from the big city earn far more than the rural lawyer." (Survey at 31). The median annual income of attorneys in private practice varies by the size of the cities in which they are practicing: A. Population <10,000 - Income $57,500. B. Population 10,000-100.000 - Income $70,500. C. Population > 100,000- Income $79,500. (Survey at Table 13). An attorney's hourly "rate is a strong factor in relation to income. [M]edian income steadily increases with an increase in hourly rates."(Survey at 36). It can be reasonably inferred that the average statewide hourly rates indicated by the survey are substantially lower than those reflective of the Des Moines market.

 

B. In calendar year 1990 the average hourly rate for trial work statewide was $91.00 per hour. The average hourly rate in 1990 for non-trial work statewide was $89.00 per hour. (Survey at 35) The largest firm category listed in Table 65 is for "eleven or more lawyers." "Larger firms tend to use a higher hourly rate for both trial and non-trialwork." (Survey at 63). In large firms, seniority with the firm is the second most important factor after "revenue generated and collected" in determining individual compensation. (Table 74).

Time Limitations Imposed ty the Client or Circumstances:

25A. There is no evidence in the record of any time limitations imposed by the client or circumstances which would affect the attorney's fees.

The "Undesirability" of the Case:

26A. There is no evidence in the record that this case resulted in animosity by important elements in the community toward the Complainant's attorneys or law firm because they undertook representation of the Complainant in a civil rights case.

The Nature and Length of the Professional Relationship With the Client:

27A. There is no evidence in the record of any professional relationship between the attorneys and Complainant DeVoider prior to this case. If Complainant DeVoider were a long-term client of the law firm at the time this case was initiated, it might be reasonable to infer that such a relationship would result in more favorable treatment of him than newer clients with respect to fees.

Awards in Similar Cases:

28A. Two cases, Lynch v. City of Des Moines and Landalls v. Rolfes. have been brought to the attention of the Commission, through the briefs of the parties, as examples of hourly fee awards in other employment discrimination cases in Iowa. Lynch was cited by Respondents because of the reduction of fees claims by the court while Landalls was cited by the Complainant because of the increase in fees over the Complainant attorney's historical rates by the court. Resistance at 4; Reply Brief at 2-3. Awards of $1 00.00 per hour were made in both of these 1990 cases. This rate is $10.00 per hour less than Complainant's attorney Curtis charged and $35.00 per hour more than Complainant's attorney Thinnes charged. These cases do not establish a rule or presumption that the appropriate attorney's fees rate for all attorneys for all litigation under the Iowa Civil Rights Act in 1990 was $100.00 per hour. As discussed in the Conclusions of Law, the amount of attorney's fees to be awarded depends on the facts of each case. See Conclusion of Law No. 8A. Even if such a presumption had been established, once this hourly rate is applied to the hours worked by both of the Complainant's attorneys in 1990, the end result is very similar:

Amount Involved, Responsibility Assumed, and Results Obtained:

29A. The Complainant's attorneys achieved exceptional and excellent results in this litigation. The Complainant prevailed on every claim he made. In the words of the final decision and order, DeVolder proved (1) "the establishment and/or maintenance of a racially hostile work environment by Respondents;" (2) "the establishment and/or maintenance of a sexually hostile work environment by Respondents;" (3) "DeVolder was subjected to verbal and physical abuse in retaliation for his lawful opposition to discrimination by Respondents;" and (4) "DeVolder was subjected to a retaliatory and discriminatory discharge by Respondent[s]."

30A. The results obtained included awards to Complainant DeVolder for emotional distress and physical pain and suffering in the amount of $15,000.00 and back pay in the amount of $2,500.00. Interest was also awarded. Because of the interrelated nature of these cases, the Complainant's counsel may also take some credit for the award of $22,706.89 in back pay to Cristen Harms.

31A. Of far greater importance, however, are the non- monetary remedies in this case which shall be implemented so as to eliminate past and prevent future discriminatory practices. These remedies include the public exposure of and injunctive relief against widespread practices of race and sex discrimination in employment, race discrimination in public accommodations, and retaliation. The Commission's final order includes the posting of notices at Respondents' place of business to inform employees and the public that Respondents now recognize that equal employment opportunity and equal opportunity in public accommodations are the law of the land. Similar notices are to be placed in Respondents' job advertising. Job Service of Iowa, a nondiscriminatory recruitment source, is to be notified of future job openings.

32A. The final order requires a complete revision of Respondents' hiring practices for salespersons in order to reduce the possibility of race and sex discrimination. This includes the establishment of written job descriptions and written procedures for filling openings, the filing of an annual applicant flow report with the Commission, and the maintenance of application files for the Commission's inspection.

33A. The order requires management personnel to study specified publications concerning job interviewing inquiries and sexual harassment. In addition, Respondents are required to implement educational programs for management personnel on racial and sexual harassment, discrimination in public accommodations, and discrimination in hiring. Non management personnel are to be educated concerning harassment, public accommodations discrimination, and appropriate grievance procedures for harassment complaints. Respondents are required to implement written policies on harassment, including grievance procedures.

34A. The wide and varied responsibilities assumed by Complainant's counsel in this case have already been described. See Finding of Fact No. 18A.

Whether the Fee is Fixed or Contingent Including Delay In Payment and Risk of Nonpayment for
Contingency Fee Cases:

35A. This case was taken by DeVolder's counsel on a contingent fee basis. If DeVolder had lost, no fee would have been recovered. (Affidavit). The contingent fee agreement provided that:

Gamble & Davis [the complainant's attorney's law firm] shall receive only those fees and expenses awarded by the Court should you win your case or one-third of the total award, which ever is greater. If you do not win your case, then no fees shall be received by Gamble & Davis. You agreed that no settlement will be entered into which does not provide for payment of reasonable attorney fees and expenses. In addition, there is no guaranty as to outcome of this case.

(Reply Brief - Exhibit B).

Delay in Payment:

36A. At this point, delay in payment for the earliest fees accrued by Complainant DeVolder's attorneys has stretched to over two and one-half years. The ultimate date on which payment will be made depends on the outcome of the current appeal of the Commission's final decision and order and any appeal made of this decision awarding attorney fees. It may be well over an additional year before attorney's fees in this case are finally paid. The delay in payment has already been great enough to justify an enhancement in the fees to account for the delay in order to provide a reasonable fully compensatory attorney's fee for Complainant DeVolder. This enhancement constitutes no windfall for the Complainant. Once all factors are taken into account, it is clear that the hourly rates claimed by Complainant DeVolder's attorney would be reasonable only if his counsel had been regularly paid throughout this litigation. Failure to take delay in payment into account when finally computing a reasonable attorney's fee would discourage private attorneys from taking these cases.

37A. One way for delay to be taken into account is to increase the hourly rate for fees charged at earlier stages of the case to the rate charged at the end of the case. See Conclusion of Law No. 34A. In this case, however, such an enhancement would not account for any of the delay in payment since January 15, 1991, the date reflecting the last fee increase claimed by Complainant's attorney. An enhancement of 10% to account for delay would be appropriate given (a) the delay in payment at the current hourly rate since January 15, 1991, and (b) the discrepancy between the current hourly rates, for the two attorneys who did over ninety percent of the work, of, respectively, $120.00 for Paul Curtis and $80.00 for Mariclare Thinnes and their hourly rates at earlier stages of the case of, respectively $100.00 and $110.00 for Mr. Curtis, and $65.00 and $75.00 for Ms. Thinnes.

38A. This enhancement does not account for the probable delay which will occur in the event this attorney's fee decision is appealed to district court or any further delay in payment due to the appeal of the final decision which has already been undertaken.

Risk of Nonpayment:

39A. As previously noted, if DeVolder had lost, his attorney would have received no payment. See Finding of Fact No. 35A. Although the contingency fee agreement provides that, in the event DeVolder prevailed, his attorneys would receive either "those fees and expenses awarded by the court ... or one third of the total award, whichever is greater;' there never was any realistic prospect that one-third of the total award would meet or exceed the product of the hours reasonably expended multiplied by e. reasonable hourly rate. (Reply Brief - Ex. B). Complainant admitted in his testimony that the emotional distress damages would not exceed $15,000.00. See Finding of Fact No. 136. Back pay was only $2,500.00. When Mr. DeVolder became a client of Gamble & Davis, on November 20, 1989, he was employed in a position which paid an amount equivalent to that he made at Friedman's, i.e. $2500.00 in six weeks or $21,666.00 per year. Before taking that job, he was unemployed for a six week period commencing on July 31, 1989. See Findings of Fact Nos. 8,135. See Application. Under these facts, it may be reasonably inferred that neither the attorney nor the client were able to mitigate the risk of nonpayment in any way. Some enhancement should, therefore, be granted to compensate for the Complainant's attorney's risk of loss or nonpayment in this case. See Conclusion of Law No. 56A.

40A. There is no evidence in the record of any specific aspects of this case which have aggravated the economic risk of nonpayment beyond that normally present in a contingent fee case. The aspect of delay has already been considered. There is no evidence of greater economic risks because of a particular attorney's circumstances. Although this case has its novel aspects, they do not constitute legal risks which either create an economic disincentive independent of the basic risk present in a contingent fee case or which are not already adequately compensated by the lodestar calculation of a reasonable hourly rate times reasonable number of hours expended.

41 A. Official notice is taken of the facts derived from the Iowa Civil Rights Commission's Annual Reports for the 1989 and 1990 fiscal years which are set forth in attachments to this decision which are designated, respectively, as Exhibit # 1 and Exhibit # 2. These are facts which can be readily ascertained from the report and which are within the specialized knowledge of this agency. Fairness to the parties does not require that they be given the opportunity to contest these facts. The statistics given in the exhibit provide a conservative estimate of the risk of loss in civil rights cases brought before this Commission, if success is defined as at least a probable cause finding of discrimination after a full investigation, or prevailing in public hearing, and/or a settlement of the case. As a class, civil rights cases brought before this Commission present an approximately 60% to 80% risk of loss or nonpayment to attorneys who represent their clients, as Mr. DeVolder was represented here, at all stages of the administrative process. (Reply Brief-Exhibit A). See Finding of Fact No. 18A.

42A. While these statistics cannot perfectly reflect the risk of loss in the market, they at least provide an indication that the risk of loss or nonpayment is substantially greater than the 4% or 5% risk of loss which would be adequately compensated by the five percent enhancement awarded here. See Conclusion of Law No. 65A. In addition, official notice is taken that the majority of complainants whose cases are being processed before the Commission, exclusive of those whose cases are transferred to the judicial system by obtaining a right to sue letter, are not represented by private counsel prior to public hearing. Furthermore, since January of 1989, a majority of complainants have not been represented by private counsel at the public hearing. Therefore, the success rates before the Commission may safely be said to not reflect the incentives or disincentives of current fee award practices. See Conclusions of Law Nos. 63A, 68A.

43A. Official notice is also taken of facts set forth in an attachment to this decision which is designated Exhibit # 3. This is an "Analysis of Determinations of Iowa Civil Rights Act Cases By the Iowa Appellate Courts [from] July 1, 1989 [to] June 30, 1992." These are facts which are readily capable of certain verification through examination of the Iowa appellate court decisions listed therein. Fairness to the parties does not require that they be given the opportunity to contest these facts. These facts indicate that a plaintiff's attorney faces an approximately 64% risk of loss or nonpayment in litigating discrimination cases before the Iowa appellate courts. Although these cases probably reflect the influence of current fee award practices, they still provide an indication that a 5% enhancement is quite conservative.

44A. Official notice is taken of Disciplinary Rule 2106 of the Iowa Code of Professional Responsibility for Lawyers which states, in part:

(B)..... Factors to be considered as guides in determining the reasonableness of a fee include the following:
...

(8) Whether the fee is fixed or contingent.

DR 2-106(B).

45A. Official notice is also taken of the following facts as being within the specialized knowledge of this agency: In Iowa, lawyers charge a premium when their entire fee is contingent on winning. In the Des Moines and Iowa market, a five per cent premium over an attorney's usual hourly rates, which are charged when there is no risk of nonpayment, would represent a reasonable and conservative premium in civil rights cases or any case with a risk of loss or nonpayment of 60% or more. Fairness to the parties does not require that they be given the opportunity to contest these facts.

46A. Given that Complainant DeVolder's counsel had "other paying client work and lawsuits available at our customary and normal hourly rates" throughout their representation of DeVolder in this case, (Affidavit), it may be reasonably inferred that the failure to award some premium for risk of loss or nonpayment will discourage this firm and others of similar quality from representing contingent fee complainants in future civil rights cases in favor of cases where there is no risk of nonpayment.

47A. In light of the facts and circumstances set forth above, a five percent enhancement of attorney's fees to compensate for risk of loss or nonpayment is reasonable and appropriate in this case.

Award of Fees and Expenses:

48A. Taking into account all the factors set forth throughout this decision, Complainant DeVolder should be awarded total attorney and paralegal fees of $28,505.43 Expenses of $237.51 should also be awarded. These constitute, reasonable, appropriate, and fully compensatory awards of fees and expenses.