BEFORE THE IOWA CIVIL RIGHTS COMMISSION

BETH LARRAIN WHENNEN, Complainant,

VS.

MEMORIAL LAWN CEMETERY, INC., ON ATTORNEY FEES PLANNING AND SERVICES CORP., AND JAMES C. PETERSEN, Respondents.

CP# 03-85-12709

PROPOSED DECISION ON ATTORNEY FEES

ON July 15, 1988, at its regular meeting, the Iowa Civil Rights Commission remanded the issue of attorney fees in the above- captioned case to the Hearing Officer. After reviewing the Motion For Award of Attorney's Fees filed on June 15, 1988, and the Final Order of the Commission, the following recommendation is submitted to the Commissioners.

In Ayala v. Center Line, Inc., 415 N.W. 2d 603, 605 (Iowa 1987), the Iowa Supreme Court stated that attorney fees are separate and distinct from the underlying civil rights violation and are incurred only to remedy the harm already done. Therefore, an award of attorney fees is more in the nature of an equitable remedy than an award of actual damages. The assessment of attorney fees, like court costs, cannot be done until liability has been established. In the case at issue, liability has been established in 3 of the 5 issues presented at the Hearing.

Attorney Barrett claims he rendered Complainant Whennen 67.30 hours of professional services and that his legal assistant rendered 18.70 hours in preparation of this case. He requests a rate of $120.00 per hour for his services and $40.00 for the services of his legal assistant.

It is recommended that no award be made for time spent by the legal assistant since most of the services can be categorized as secretarial and pay for such work is generally part of the overhead of a law firm.

The number of hours requested for Attorney Barrett (87.30) should be, reduced as follows: 1.80 hours for reply brief untimely filed; 6.50 hours for post hearing brief untimely filed; 12 hours for excessive time to produce brief-, and 2 hours approximate duplicate trial time with Assistant Attorney General. Of the remaining hours, 65, 2.40 hours occurred prior to filing the complaint and 11.5 hours occurred prior to issuance of the Notice of Hearing. In Dacy v. Burlington Northern Railroad, IOWA CIVIL RIGHTS CASE REPORTS, 1984-86, page 25, this Commission ruled that only services rendered after the Notice of Hearing has been issued would be considered. Therefore, only 51. 10 hours will be considered for this award of attorney fees.

To determine whether or not a party prevailed for purposes of establishing entitlement to attorney's fee, consideration is given to the success on the claims made. In this case, there were five issues. Complainant was successful on three of those five. Therefore, she should be awarded fees for 3/5 or the time spent, a total of 30.66 hours. UVIEDO v. STEVES SASH and DOOR CO., 753 F. 2d 369, 35 EMPL. PRAC. DEC. (CCH) 135, 024 (5th CIR. 1985); HENSLEY v. ECKERHARD, 461 U.S. 424,32 EMPL. PRAC. DEC. (CCH) 233, 618 (1983).

An hourly rate of $120.00 has been requested. A lesser hourly figure is recommended specifically based on the numerous times the Hearing Officer was required to caution and reprimand Attorneys Barrett and Cook for nonprofessional behavior before the Hearing Officer. [See Transcript pages 150-152, I54-155, 186- 187, 190, 206, 223, 228-229, 263-264, 313-316, 337, 353-354 etc.) It is recommended that $60.00 an hour be used under these circumstances.

A total of 30.66 hours at $60.00 an hour results in award of attorney's fee of $1,839.60.

A hearing before the Commissioners may be requested on this proposed decision. This proposed decision will be considered at 9:00 A.M., August 26, 1988, at the Iowa Civil Rights Commission, 211 East Maple Street, Des Moines, Iowa.

IT IS ORDERED that Memorial Lawn Cemetery, Inc. and James C. Petersen pay Beth Whennen $1,839.60, for attorney's fee.

Signed this 22nd day of July 1988.

IONE G. SHADDUCK,

Administrative Law Judge