CONNIE ZESCH-LUENSE, Complainant,

and

IOWA CIVIL RIGHTS COMMISSION,

vs.

THE CHICKEN HOUSE and ROBERT PLILEY, Respondents,

I. Procedural History:

1A. By a Final Decision and Order and Remand for Determination of Attorney's Fees issued on November 4, 1994, the Commission found that the Respondents had "directed Complainant to deny service to a Native American because of his race and terminated her for her refusal to do so." The order also remanded the case to the Administrative Law Judge for the determination of attorney's fees. (The findings of fact and conclusions of law set forth here have a combined numerical and alphabetical designation in order to distinguish them from the findings of fact and conclusions of law incorporated by reference in the Commission's final decision of November 4, 1994.) After unsuccessful attempts were made by the parties to stipulate to the fees, a Notice of Attorney's Fees Hearing was issued by the Commission on February 8, 1995. That Notice stated, in part:

5. At this point, no response has been made by Respondents Robert Pliley and the Chicken House to the scheduling conference notice [which had been issued in order to arrange a time, date and place for an attorney's fee hearing]. In order to avoid the expense and time of conducting a hearing in Marshalltown in which the Respondents choose not to participate, the Respondents shall notify the undersigned in writing by May 1, 1995 as to whether or not they intend to participate in the hearing. The written communication must be received by the undersigned by May 1, 1995. Any motions for continuance by any party should also be filed by that date unless there are exceptional circumstances which require a continuance. In the event neither Respondent indicates an intent to so participate by that date, an order cancelling the hearing shall be issued. The complainant may then submit her claim for attorney's fees by affidavit filed with the undersigned on or before May 17, 1995. The complainant shall mail copies of the affidavit to all other parties of record.

Notice of Attorney's Fees Hearing.

2A. Respondent Pliley indicated twice in writing that he did not wish to participate in the hearing. Respondent Chicken House did not respond to the Notice of Attorney's Fees Hearing. Therefore, pursuant to the provisions in the Notice, the attorney's fee hearing was vacated by an order issued on May 8, 1995.

3A. The complainant, through her attorney, Barry Kaplan, filed an affidavit setting forth her claim for attorney's fees on May 15, 1995. This affidavit is attached to this decision and incorporated by reference in the decision as if fully set forth herein.

4A. The complainant asks for a total of $1507.50 in attorney fees for 4.5 hours of work at the rate of $80.00 per hour ($360.00) and 13.50 hurs of work at the rate of $85.00 per hour ($1147.50). The complainant makes no request for any enhancement of fees beyond this amount.

II. Factors to Be Considered in Determining Hours Reasonably Expended and a Reasonable Hourly Rate:

A. A Variety of Factors May Be Considered:

5A. 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 (l) 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.

B. The Time Necessarily Spent:

6A. Complainant Zesch-Luense's attorney, Barry S. Kaplan, submitted an affidavit setting forth actions taken by him, the date of the action, and the hours expended. A careful examination of time expended by counsel on this case reveals that all of the time claimed by Complainant was reasonable and necessarily spent on this case.

C. The Difficulty of Handling and Importance of the Issues:

7A. The factual and legal issues in this case were of at least average difficulty. While, in a sense, all civil rights cases are important, this case would be accurately described as one of average importance. One factor which made this case notably more difficult for the complainant, however, was that the Respondent was allowed to present witnesses without prior notice to either the Commission or the Complainant. This was permitted, despite the Respondent's prior representations that he would not be calling any witnesses, because he was not represented by counsel and apparently did not understand procedures. Despite these surprise witnesses, the Complainant and Commission's representatives were able to adequately counter their testimony through cross-examination without any need for a continuance to call further witnesses. See Findings of Fact Nos. 6-7.

D. The Nature and Extent of the Service:

8A. The time records of attorney Kaplan indicate that the nature and extent of the services provided to the Complainant were that which would normally be expected in a civil rights case ranging from conferences with the client to representing her at hearing.

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

9A. In any case requiring the number of hours required by this one, it may be reasonably inferred that the attorney had to forego some other employment for which those hours would have been otherwise expended. The number of hours expended, however, is not sufficient to make this a major factor in this award of attorney's fees.

F. The Standing and Experience of the Complainant's Attorney in the Profession:

10A. Official notice is taken of the following facts derived from page 177 of the 1994 edition of the Iowa Legal Directory and page IA47P of the 1995 edition of the Martindale-Hubbell Legal Directory. Fairness to the parties does not require that they be given an opportunity to contest these facts:

A. Attorney Barry S. Kaplan received his Juris Doctor degree at Drake University in 1975. He was admitted to the Iowa bar in that same year. He is also admitted to practice before the U.S. Court of Appeals for the Eighth Circuit and the U.S. District Courts for the Southern and Northern Districts of Iowa. He is a member of the Marshall County, Iowa State, and American Bar Associations.

B. Mr. Kaplan has a "BV" rating from Martindale Hubbell. The first letter in this rating represents an evaluation, 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 "B" rating is one of "high to very high" legal ability.

C. 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 responsibilities." A "V" rating reflects a "Very High" general recommendation.

11A. The Administrative Law Judge would rate the quality of representation provided by Mr. Kaplan as certainly high enough to warrant the hourly rate requested for him.

G. The Customary Charges for Similar Services:

12A. Official notice is taken of facts given in the firm resume for Mr. Kaplan's firm, Fairall, Fairall, Kaplan & Hoglan, which is set forth in the 1994 Iowa Legal Directory. Mr. Kaplan's firm consists of three partners, including himself, one associate, and one lawyer who is of counsel to the firm. The firm is located in Marshalltown, Iowa. Fairness to the parties does not require that they be given the opportunity to contest these facts.

13A. Official notice is also taken of the following facts derived from the 1990 Economics Survey of the Iowa State Bar Association. Fairness to the parties does not require that they be given the 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. (Survey at 3). 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 median hourly rate for firms with five lawyers was $87.00 for both trial and nontrial work. (Survey at 63).

14A. Given that this survey was taken five years ago, the hourly rate requested for attorney Kaplan's work is not only reasonable, but conservative.

H. Time Limitations Imposed by the Client or Circumstances:

15A. There is no evidence in the record of particular time limitations imposed by the client or circumstances which would affect the attorney's fees.

I. The "Undesirability" of the Client:

16A. There is no evidence in the record that this case resulted in animosity by important elements in the community toward Mr. Kaplan or his firm because he undertook representation of Complainant Zesch-Luense in this civil rights case.

J. Awards in Similar Cases:

17A. The hourly rate requested for the Complainant's attorney is well within the range of fee awards in Iowa in discrimination cases. The Iowa Supreme Court and Iowa Court of Appeals have approved awards of $100.00 per hour in attorney's fees. Lynch v. City of Des Moines, 464 N.W.2d 236, 238 (Iowa 1990); Landals v. George A. Rolfes, Co., 454 N.W.2d 891, 897 (Iowa 1990); Edson v. Chambers, 519 N.W.2d 832 (Iowa Ct. App. 1994). This Commission has approved awards, which were not stipulated to, ranging from a low of $75.00 per hour, Diane Humburd, 10 Iowa Civil Rights Commission Case Reports 13, 14 (1989), to a high of $120.00 per hour. Mike DeVolder, 11 Iowa Civil Rights Commission Case Reports 135, 135-36, 150-51 (1992).

K. Amount Involved, Responsibility Assumed, and Results Obtained:

18A. The Complainant's attorney achieved excellent results in this litigation. Complainant Zesch-Luense prevailed with respect to all her alleged violations of aiding or abetting, retaliation, and race discrimination in public accommodations under the Iowa Civil Rights Act. She obtained a back pay remedy of $1,137.50 and an emotional distress damage award of $10,000.00. Interest on these awards at the rate of ten percent per annum was also awarded. Other remedies obtained included a cease and desist order and the posting of non-discrimination notices at the Chicken House restaurant. The attorney's fees requested are justified in light of these results.

L. Whether the Fee is Fixed or Contingent:

19A. There is no evidence in the record indicating whether the fee agreement between Complainant Zesch-Luense and attorney Kaplan was on a fixed or contingency fee basis.

M. Award of Fees:

20A. Taking into account all the factors previously discussed, the fees requested reflect the product of a reasonable hourly rate multiplied by a reasonable number of hours of work. There is no need for a further adjustment of the fees under these facts. The Complainant has met her burden of establishing a reasonable attorney's fee by documenting the appropriate hours expended and the hourly rates. Complainant Zesch-Luense should be awarded, therefore, a reasonable attorney's fee in the amount of $1507.50.