Top court slices fee award in golf course bias case

By: The Daily Record admin, The Daily Record, May 20, 2005

A woman who won a novel discrimination claim against a golf course/country club but claimed her fee award was considerably under par will have to settle for the $22,440 she was granted by an administrative panel in 2002.

The Court of Appeals concluded last week that the Montgomery County Public Accommodations Panel correctly calculated the amount given to Betty Flaa, using a county code provision as a guide.

Flaa, who filed a claim after being kicked off Rockville's Manor Country Club golf course because she is a woman, was pushing for the lodestar method of calculation, which multiplies hours reasonably expended by the hourly rate.

WHAT THE COURT HELD
Case: Manor Country Club v. Betty Flaa, CA No. 111, Sept. Term 2004. Reported. Opinion by Cathell, J.; dissent by Bell, C.J. Filed May 18, 2005.Issue: Did an administrative panel properly calculate attorney's fees to be paid by a losing party in a discrimination case against a country club - where the award constituted an 89 percent reduction of the hours reportedly worked in a case and the hourly rate was undisputed? Holding: Yes; CSA reversed. The use of the lodestar approach (hours reasonably expended by counsel times the hourly rate) was unnecessary where a county law provided an alternate method of calculation.Counsel: Charles E. Wilson Jr. for petitioner; Linda Hitt Thatcher for respondent.RecordFax: 5-0518-20 (33 pages)

With 1,193.34 hours of work with an undisputed rate of about $170 per hour, her fee award would increase to $202,520.

However, the top court found the lodestar method did not apply because the factors for determining a fee award were written into the statute that authorized the award.

"Mandatory legislative criteria, where they exist, for the setting of fee-shifted awards, are entirely appropriate for determining the award of attorney's fees, and in such circumstances, are to be utilized," Judge Dale R. Cathell wrote.

The lone dissenter, Chief Judge Robert M. Bell, protested that the panel had engaged in an unjust cost-benefit analysis linking the fee award to the minimal monetary judgment Flaa had obtained in the case.

"Like the Court of Special Appeals, I am unable to understand the reason for ... an 89 percent reduction in hours in a case in which the party seeking attorney's fees prevailed on two of its four claims, and one of those claims was a matter of first impression," Bell wrote.

Linda Hitt Thatcher, the Rockville attorney representing Flaa, agreed with Bell - but emphasized that it was the larger issues in the case that mattered.

"Nothing can take away the fact that Betty Flaa won her case," she said, adding that she and her client were able to make changes at the club that will have a ripple effect on other clubs in Maryland.

The victory, she said, was the panel's 2000 conclusion that the club was a place of public accommodation and could not discriminate against women.

"If I had to do it all over again, I would," Thatcher said.

Flaa, a retired school teacher, filed a discrimination claim with Montgomery County's Office of Human Rights in 1993 alleging that an assistant golf pro at the club had ordered her to leave the course while she was playing golf with her husband - stating that women were not allowed. She was not even allowed to finish the hole, she claimed.

In 2000, the county Public Accommodations Panel concluded that the country club was a place of public accommodation - a matter of first impression in the state - and had treated Flaa differently on the basis of sex during the golf course incident.

As a result of Flaa's case, the country club was ordered to cease all activities and conduct discriminating against women; in fact, a painting of a nude woman in the lobby was taken down.

But in monetary compensation, Flaa was awarded just $750 in damages and $3,000 in fees.

The Montgomery County Circuit Court, reviewing the fee award in August 2001, declared that the panel needed to analyze the factors set forth in the §27-7(k)(1) of the Montgomery County Code. Those factors included the time, labor and skill involved; the novelty and complexity of the case; the customary fee in the case; and the experience and reputation of the attorney.

On remand in October 2002, the panel bumped the fee award up to $22,440. Though the circuit court affirmed, the Court of Special Appeals last year agreed with Flaa that the panel should have first determined the lodestar amount and explained any downward deductions.

Ultimately, however, the top court found the lodestar approach unnecessary where a statute such as §27-7(k)(1) existed as a guide. (The provision has since been repealed, and the replacement merely provides for reasonable attorney's fees.)Principles

Washington attorney Stephen Z. Chertkof, who filed an amicus brief in the case on behalf of the Metropolitan Washington Employment Lawyers Association, said fee-shifting statutes are very important to civil rights enforcement because, as in this case, the value of damages received is often dwarfed by the cost of litigation.

"The case was never about money, it was about principles," he said, adding that a $200,000 bill is not unusual for 10 years of hard-fought litigation. "We're not advocating that she get every dollar she claims, but a fair review that starts out with how many hours it took to litigate this case; the fees awarded didn't even cover the first administrative hearing."

Counsel for the club did not return a call for comment by press time.