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Johnson v. Department of Transportation

Court of Appeals of Washington, Division 1

November 12, 2013

Karen Johnson, Appellant,
v.
The Department of Transportation, Respondent

Page 1198

Appeal from Superior Court King County. Superior Court Cause No: 10-2-24681-9.SEA. Date filed in Superior Court: 6/22/12. Superior Court Judge Signing: Bruce Heller.

Mary Ruth Mann and James W. Kytle (of Mann & Kytle PLLC ), for appellant.

Jon R. Morrone (of Williams Kastner ), and Robert W. Ferguson, Attorney General, and Thomas R. O'Neill and Catherine Hendricks, Assistants, for respondent.

AUTHOR: Dwyer, J. We concur: Appelwick, J., Grosse, J.

OPINION

Page 1199

Dwyer, J.

[177 Wn.App. 687] ¶ 1 Karen Johnson accepted a Civil Rule (CR) 68 offer of judgment presented by the Washington State Department of Transportation (DOT), settling her claim against DOT for violations of the Washington Law Against Discrimination (WLAD). [1] After accepting the offer, Johnson petitioned the trial court for an award of attorney fees and costs pursuant to the agreement. The trial court awarded attorney fees and costs to Johnson but first deducted time spent on Johnson's unsuccessful administrative claim; time spent and costs accrued after the date of the offer; reconstructed hours; and amounts billed by Johnson's psychologist, Dr. Timothy Reisenauer, for time spent on litigation-related matters. Johnson appeals, asserting that the trial court erred in every instance in which it awarded an amount less than that requested. Finding that the trial court did not abuse its discretion by excluding the aforementioned fees and costs, we affirm.

I

¶ 2 Karen Johnson was formerly employed as assistant regional human resources manager at the northwest region of DOT. Johnson's supervisor at DOT was Corey Moriyama. In June 2008, Johnson submitted an administrative complaint to DOT, alleging sex discrimination and retaliation on the part of Moriyama. Johnson retained the law firm of Mann & Kytle, PLLC, the following month and continues to retain the firm on appeal. DOT closed the investigation into Johnson's allegations of discrimination in December 2008 and notified her of its adverse decision in January 2009.

¶ 3 In September 2008, Johnson went on medical leave from her position at DOT. Johnson's psychologist, Dr. Reisenauer, diagnosed

Page 1200

her with posttraumatic stress disorder (PTSD), depression, and anxiety caused by her experiences working under Moriyama's supervision at DOT. In November 2008, Dr. Reisenauer provided a Family and [177 Wn.App. 688] Medical Leave Act, 29 U.S.C. § § 2601-2654 certification to DOT, stating that Johnson's " condition continues to not allow her to return to work without it seriously jeopardizing her health." In May 2009, Dr. Reisenauer wrote a follow-up letter to DOT, recommending that Johnson remain off work until November 11, 2009. On July 10, 2009, Dr. Reisenauer completed a DOT disability medical questionnaire, stating that while Johnson was capable of performing the essential functions of an assistant regional human resources manager, any return to the DOT would likely retrigger her PTSD symptoms. Based on these reports from Dr. Reisenauer, DOT disability-terminated Johnson on July 23, 2009.

¶ 4 Johnson appealed her disability-termination to the Personnel Resources Board (PRB) on August 6, 2009. In her appeal, Johnson alleged that DOT's decision to disability-terminate her was done in retaliation for her reporting discrimination by Moriyama and that DOT failed to reasonably accommodate her when it did not attempt to find a position for her at another state agency. On February 18, 2010, the PRB found that DOT had no duty to search for positions at other state agencies and denied Johnson's appeal.

¶ 5 On July 7, 2010, Johnson filed a complaint for damages and injunctive relief against DOT, alleging that DOT violated the WLAD by discriminating against her on the basis of age, sex, and disability. Dr. Reisenauer regularly consulted with counsel for Johnson throughout the course of litigation and prepared supporting documentation for Johnson's response to DOT's motion for a CR 35 examination. However, Dr. Reisenauer was neither retained nor listed as an expert witness.

¶ 6 On October 5, 2011, DOT tendered to Johnson and filed with the court a CR 68 offer of judgment. The offer states, in relevant part:

Under Civil Rule 68, Defendant Department of Transportation, State of Washington offers to allow Plaintiff, Karen Johnson, to take judgment against the State of Washington in [177 Wn.App. 689] this matter pursuant to RCW Ch. 4.92, which judgment shall be Three Hundred and Fifty Thousand dollars ($350,000). Additionally, Defendant State of Washington hereby offers to pay Karen Johnson's awardable costs and reasonable attorney's fees accrued in this lawsuit up to the date/time of this Offer, which sum shall be determined by the King County Superior Court in the event that counsel for the parties cannot agree within 10 days of Plaintiff's timely acceptance. Plaintiff's claimed costs and fees shall be substantiated by billing records attached to Plaintiff's acceptance of this Offer detailing the nature and date of the work performed and hours accrued.

Johnson unequivocally accepted the offer of judgment on October 17, 2011. As requested, Johnson submitted her counsel's billing records along with her acceptance.

¶ 7 On January 20, 2012, Johnson petitioned the court for an award of attorney fees and costs, which she later amended to comply with the court's filing requirements. [2] Johnson also submitted modified billing records, which included reconstructed time that was not contained in the October 17 record. DOT filed a response to Johnson's petition on February 8, 2012, to which Johnson replied on February 16, 2012.

¶ 8 On March 26, 2012, the trial court submitted a letter to both parties, setting forth the following rulings:

(1) The reasonable hourly rate for Ms. Mann and Mr. Kytle is $425.00; for Mr. Rose $225; for their paralegal $125.00;
(2) Plaintiff is not entitled to fees for hours expended after October 5, 2011 pursuant to the terms of the offer of judgment. Guerrero v. Cummings, 70 F.3d 1111, 1113 (9th Cir. 1995);

Page 1201

(3) Plaintiff is only entitled [to] fees based on hours that were contemporaneously billed. Mahler v. Szucs, 135 Wn.2d 398, 434 (1998).
[177 Wn.App. 690] (4) Plaintiff is entitled to fees for all hours expended on this case through October 5, 2011, with the exception of time spent on her administrative ...

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