      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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CINDI BRIGHT,                                           No. 72663-3-1                «*:

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                      Respondent,                       DIVISION ONE                 ~Xm       COfi'i




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FRANK RUSSELL INVESTMENTS and                           PUBLISHED
BRIAN GOLUB, individually and as its
agent,                                                  FILED: November 2, 2015

                     Appellants.




       Cox, J. — In a civil rights case that provides for attorney fees, a court may

award a prevailing plaintiff reasonable attorney fees on multiple claims where

there is a "common core of facts" or where there are "related legal theories" at

issue.1 Here, Cindi Bright obtained a jury verdict of $475,000 in damages

against Frank Russell Investments based on her failure to accommodate claim

under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW.

But the jury did not find Frank Russell liable for her unlawful retaliation claim

under the WLAD. Nevertheless, the trial court awarded reasonable attorney fees

to her on the basis that there was both a "common core of facts" for her asserted

claims as well as "related legal theories" at issue. The court did not abuse of its

discretion in doing so. We affirm.



       1 Henslev v. Eckerhart. 461 U.S. 424, 435, 103 S. Ct. 1933, 76 L. Ed. 2d 40
(1983) (applying the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988).
No. 72663-3-1/2



       Bright formerly worked for Frank Russell Investments in its human

resources department. During her employment, Frank Russell investigated

several employees, including her, for allegedly violating its code of conduct and

code of ethics.


       In September 2012, while the investigation was ongoing, Bright took a

medical leave of absence. In November 2012, Bright commenced this action,

claiming violations of the WLAD. Specifically, she alleged racial discrimination

and unlawful retaliation arising from the ethics investigation. She alleged that

Frank Russell was treating her more harshly than her colleagues in its

investigation.

       Later that month, Bright requested disability accommodations. She

supported this request with information from her psychologist, who

recommended certain accommodations. On December 13, 2012, Frank Russell

informed Bright that it denied her request for accommodations and terminated

her employment. The company informed her that it terminated her employment

due to her "serious misconduct."

       In March 2013, Bright amended her complaint to add a failure to

accommodate claim to this action.

       On summary judgment, the court dismissed Bright's racial disparate

treatment claim. It concluded that because she was on medical leave at the

relevant time, she was unable to prove that she was performing satisfactory work

at the time of the allegedly adverse employment action. The court also
No. 72663-3-1/3



dismissed Bright's racial discrimination claim against one of Frank Russell's

senior executives.


         The retaliation claim and the failure to accommodate claim went to trial.

At the conclusion of a lengthy trial, the jury found that Frank Russell had failed to

accommodate Bright's disability and awarded her $475,000 in damages. But the

jury did not find Frank Russell liable on her unlawful retaliation claim.

         Bright sought an award of reasonable attorney fees and costs pursuant to

RCW 49.60.030(2). Frank Russell opposed her request, arguing that Bright

failed to segregate time spent on unsuccessful racial discrimination claims.

         After a hearing, the trial court gave its oral ruling, explaining its conclusion

that Bright demonstrated that there was both a "common core of facts" and

"related legal theories" in this case. Accordingly, there was no requirement to

segregate attorney fees based on successful and unsuccessful claims, as Frank

Russell argued. Thereafter, the court prepared and entered its findings of fact

and conclusions of law, and entered a judgment regarding the award of fees and

costs.


         Frank Russell appeals.

                             ATTORNEY FEES AT TRIAL

         Frank Russell argues that the trial court abused its discretion by failing to

require segregation of time spent on Bright's successful failure to accommodate

claim from her unsuccessful race-based claim. We hold that segregation of time

on this basis was not required in this case.
No. 72663-3-1/4



          The WLAD entitles prevailing plaintiffs to "reasonable attorneys' fees."2

          Under Bowers v. Transamerica Title Insurance Co., the first step of

deciding what is reasonable is to determine the lodestar amount.3 To calculate

the lodestar amount, a court multiplies the number of hours reasonably expended

by the reasonable hourly rate.4 "The court should discount hours spent on

unsuccessful claims, duplicated or wasted effort, or otherwise unproductive

time."5

          We review for abuse of discretion whether the amount of an attorney fee

award is proper.6 "A trial court abuses its discretion ifa decision is manifestly

unreasonable or based on untenable grounds or untenable reasons."7

          Here, the awardability of reasonable attorney fees is not at issue. RCW

49.60.030(2) clearly authorizes this award to Bright, the successful plaintiff in this

case.



          Rather, Frank Russell challenges the amount of fees awarded. In doing

so, it does not challenge the trial court's findings of fact regarding fees.

Accordingly, these findings are verities on appeal.8


          2 RCW 49.60.030(2).

          3100 Wn.2d 581, 597, 675 P.2d 193 (1983).

          4Jd

          5 Chuonq Van Pham v. Seattle City Light. 159 Wn.2d 527, 538, 151 P.3d 976
(2007).

          6]d

          7 Skagit County Pub. Hosp. Dist. No. 304 v. Skagit County Pub. Hosp. Dist. No.
1, 177 Wn.2d 718, 730, 305 P.3d 1079 (2013).

          8 In re Welfare of A.W.. 182 Wn.2d 689, 711, 344 P.3d 1186 (2015).

                                                 4
No. 72663-3-1/5


       When interpreting the WLAD, Washington courts frequently look to federal

authority on the question of fees.9 Hensley v. Eckerhart,10 a United States

Supreme Court case construing the federal Civil Rights Attorney's Fees Awards

Act, supplies reasoning consistently applied to our state cases.11

       "The amount of the fee, of course, must be determined on the facts of

each case."12

       Here, the focus of our inquiry is whether the reasonably expended hours

component of the lodestar calculation is proper. Hensley contains useful

analysis on this issue.

       There, the petitioners argued that "'an award of attorney's fees must be

proportioned to be consistent with the extent to which a plaintiff has prevailed,

and only time reasonably expended in support of successful claims should be

compensated.'"13 The respondents in that case argued that the proper focus is

on "'whether the time spent prosecuting [an unsuccessful] claim in any way

contributed to the ultimate results achieved.'"14 The United States Supreme




       9 Blair v. Wash. State Univ.. 108 Wn.2d 558, 570, 740 P.2d 1379 (1987).

       10 461 U.S. 424, 103 S. Ct. 1933, 76 L Ed. 2d 40 (1983).

       11 See Chuong Van Pham. 159 Wn.2d at 539-40; Blair, 108 Wn.2d at 572; Wash-
State Commc'n Access Project v. Regal Cinemas, Inc., 173 Wn. App. 174, 220, 293
P.3d 413, review denied. 178 Wn.2d 1010 (2013).

       12 Hensley, 461 U.S. at 429.

       13 id at 432.

       14 Id.
No. 72663-3-1/6


Court took the opportunity to "clarify the proper relationship of the results

obtained to an award of attorney's fees."15

       The Court stated:

              It may well be that cases involving [] unrelated claims are unlikely to
       arise with great frequency. Many civil rights cases will present only a
       single claim. In other cases the plaintiff's claims for relief will involve a
       common core of facts or will be based on related legal theories.
       Much of counsel's time will be devoted generally to the litigation as a
       whole, making it difficult to divide the hours expended on a claim-by-claim
       basis. Such a lawsuit cannot be viewed as a series of discrete claims.
       Instead the 0 court should focus on the significance of the overall
       relief obtained by the plaintiff in relation to the hours reasonably
       expended on the litigation.^

       The Supreme Court went on to state:

             Where a plaintiff has obtained excellent results, his attorney should
       recover a fully compensatory fee. Normally this will encompass all hours
       reasonably expended on the litigation, and indeed in some cases of
       exceptional success an enhanced award may be justified. In these
       circumstances the fee award should not be reduced simply because the
       plaintiff failed to prevail on every contention raised in the lawsuit. Litigants
       in good faith may raise alternative legal grounds for a desired outcome,
       and the court's rejection of or failure to reach certain grounds is not a
       sufficient reason for reducing a fee. The result is what mattersP7]

       Notably, the Supreme Court made the following observation while

rejecting an argument very similar to the one Frank Russell now makes:

              We agree with the District Court's rejection of "a mathematical
       approach comparing the total number of issues in the case with those
       actually prevailed upon." Such a ratio provides little aid in determining
       what is a reasonable fee in light of all the relevant factors. Nor is it
       necessarily significant that a prevailing plaintiff did not receive all the relief
       requested. For example, a plaintiff who failed to recover damages but
       obtained injunctive relief, or vice versa, may recover a fee award based on

       15 Id,

       16 Id. at 435 (emphasis added).

       17 Id, (emphasis added) (citation omitted).

                                                6
No. 72663-3-1/7


       all hours reasonably expended if the relief obtained justified that
       expenditure of attorney time.[18]

       Similarly, in this case Frank Russell argues that "Ms. Bright's attorneys

recorded work in progress with a stated value of $1 million towards recovery of a

judgment of less than half that amount."19 Likewise, it uses various percentages

as measures of what it characterizes as "success as a whole."20 But these

mathematical measures are not controlling.

       Instead, because "there is no precise rule or formula," the trial court has

discretion in determining the plaintiff's degree of success.21

       In this case, the court determined that the trial was "a win" for Bright,

rejecting the notion that it was a partial success. The substantial jury verdict

supports the trial court's determination. The court noted that Bright received

considerably more in damages than the severance packages of her colleagues

who were also terminated for allegedly violating ethical rules. The jury's verdict

also substantially exceeded Frank Russell's settlement offers.

       The trial court also explained in its oral ruling why segregation of time was

not required under the circumstances of this case:

               I think that this [case] is clearly from a common core of facts.
       I don't think these were discrete severable claims that were
       unrelated in that nature under the Hensley case. I think that these
       are related legal theories.



       18 id, at 435-36 n.11 (citation omitted).

       19 Brief of Appellant Frank Russell Investments at 13.

       20 Id, at 18-21.

       21 Hensley. 461 U.S. at 436-37.
No. 72663-3-1/8


              The evidence as to each of the theories was related to
       defense's were in large part, I think, related—I think [counsel] has
       got a good argument—that part of the facts that were trying to paint
       the plaintiff in an unfavorable light related to whether or not there
       was truly a need to accommodate her or whether or not she
       actually had been fired or the decision to fire her had been made in
       August. And that's—that was why I didn't grant plaintiff's summary
       judgment on their failure to accommodate, was because I said
       there's an issue of fact as to whether or not the decision to fire her
       had been made in August.

             Well, because of that, that necessarily makes all the
       evidence regarding the decision to fire her relevant to the failure to
       accommodate. That makes this a common core of facts.

              So the texts that she sent deal with the decision to fire her;
       the relationship, the one-night stand that she apparently had relates
       to the decision to fire her. All those facts that we heard now relate
       to the decision to fire her, which in my view was Russell's only
       defense to a failure to accommodate; because Russell was
       otherwise admitting we did not accommodate.

              And so that's what brings these facts together, as I see
       them. So because of that, I don't think there was an obligation to
       segregate the fees on some kind of claim-by-claim basis. And I
       don't view them as a series of discrete claims.[22]

       Thus, there was a common core of facts in both her discrimination claims,

challenging Frank Russell's decision to terminate.

       We also note that Bright raised two legal theories for why her discharge

was discriminatory and prevailed on only one. But "[l]itigants in good faith may

raise alternative legal grounds for a desired outcome."23 The legal theories were

sufficiently related to justify the award.

       The trial court prepared and entered findings of fact and conclusions of

law consistent with its oral ruling. As we previously stated, the findings are


       22 Report of Proceedings (September 26, 2014) at 56-58.

       23 Hensley. 461 U.S. at 435.

                                              8
No. 72663-3-1/9


verities because they are unchallenged on appeal. And they support the

conclusions of law. Thus, the trial court did not abuse its discretion.

       Frank Russell makes several additional arguments. None is persuasive.

       First, it argues that the trial court abused its discretion under Hensley

because Bright's claims could have been filed as separate lawsuits. Not so.

       As Hensley noted, courts should treat claims as separate lawsuits when

they "are based on different facts and legal theories."24 Thus, courts should treat

claims as separate lawsuits when they are both factually and legally unrelated.

Conversely, when a plaintiff prevails and the claims "involve a common core of

facts or. . . related legal theories," the court should not view the lawsuit "as a

series of discrete claims."25

        Here, Bright's claims shared a factual core. Additionally, while Bright

brought her claims under two distinct legal theories, they were related. Both

claims alleged unlawful discrimination under the WLAD. Thus, the court was not

required to treat her claims as separate lawsuits.

       Second, Frank Russell relies on Chuonq Van Pham v. Seattle City Light.26

But that reliance is misplaced.

       In that case, the trial court reduced the fee award by some hours,

concluding that they were "unnecessarily expended, unproductive, or not




       24 id, at 434 (emphasis added).

       25 Id, at 435 (emphasis added).

       26 159 Wn.2d 527, 151 P.3d 976 (2007).
No. 72663-3-1/10



sufficiently related to the successful claim."27 The supreme court affirmed, noting

its deference to the trial court, which "is in the best position to determine which

hours should be included."28

       Here, the trial court did not conclude that the hours Bright spent on her

racial discrimination claims were unnecessary. Rather, the trial court determined

that the failure to accommodate claim "necessarily" involved evidence of Frank

Russell's motive for terminating her employment. There simply is no support for

the argument that Chuong Van Pham is analogous to this case.

       Third, Frank Russell argues that the trial court abused its discretion by

awarding Bright fees for all her claims merely because they all arose under the

WLAD. This mischaracterizes the trial court's decision.

       As explained earlier in our quotation of the trial court's oral decision, the

court relied on the fact that Bright's claims shared a common factual core. It did

not, as Frank Russell argues, rely simply on the fact that the claims arose under

the WLAD.

       Similarly, Frank Russell argues that the trial court abused its discretion

because it determined that Frank Russell's litigation strategy created a common

core of facts. This also mischaracterizes the trial court's decision.

       Frank Russell's litigation strategy for both claims was similar. In essence,

it argued that Bright "had committed dischargeable acts that justified denying her




       27 Id. at 540.

       28 Id.


                                              10
No. 72663-3-1/11


accommodation and terminating her [employment]."29 But the underlying facts,

not Frank Russell's defense strategy, created the common core of facts. When

Frank Russell terminated Bright, it noted that it was doing so because of her

misconduct. Thus, its motive for this decision formed part of the common core of

facts.


         Fourth, Frank Russell argues that Bright "needlessly increased the cost of

adjudicating this case by up to 80%" by bringing her racial discrimination

claims.30

         As we previously noted in discussing Hensley, mathematical formulae are

not dispositive in determining what fee is reasonable. Thus, reliance on this

mathematical measure is not helpful.

         In any event, the evidence about Frank Russell's motive to fire Bright was

relevant to her failure to accommodate claim.

         Fifth, Frank Russell argues that the court abused its discretion by failing to

take into account Bright's degree of success. The company argues that the court

should have considered the fact that the jury awarded Bright considerably less in

damages than she requested.

         This argument is unpersuasive. As noted earlier, the trial court explicitly

took Bright's degree of success into account. The court called the result a "win"
for Bright. It determined that Bright had been successful and rejected the notion

that Frank Russell had partially succeeded.



         29 Clerk's Papers at 1639.

         30 Brief of Appellant Frank Russell Investments at 14.
                                                 11
No. 72663-3-1/12



       While Frank Russell disagrees with the trial court's assessment of Bright's

success, the court has discretion in determining the degree of success.31 As

Chuong Van Pham states, "it is the trial judge who has watched the case unfold

and who is in the best position to determine which hours should be included in

the lodestar calculation."32

       Here, the court determined that in light of Frank Russell's proposed

settlement, and the amount of damages that Bright received compared to the

amount of her colleagues' severance packages, Bright had succeeded. This was

not an abuse of discretion. And Frank Russell fails to cite any authority indicating

that the court must reduce an award of attorney fees merely because a plaintiff is

awarded less in damages than requested.

       Finally, Frank Russell argues that Bright should not have received fees for

her claim against one of Frank Russell's senior executives. But while her claim

against this executive as an individual was dismissed, his actions as Frank

Russell's representative formed part of her claims' common factual core.

       In reply, Frank Russell contends counsel's billing rates were excessive.

We disagree.

       The trial court entered unchallenged findings of fact 9 and 10, which note

the high quality of counsel's representation and the reasonability of the hourly

rates of those who worked on the case. While Frank Russell disagrees with this

result, it fails to show that the finding is unsupported by substantial evidence.



       31 Hensley, 461 U.S. at 436-37.

       32159Wn.2dat540.

                                             12
No. 72663-3-1/13



       Bright also argues that Brand v. Department of Labor & Industries33 further

supports the trial court's decision. That case discusses the award of reasonable

attorney fees under RCW 51.52.130, a provision of the Industrial Insurance Act.

Because we have resolved this case on the bases already discussed, we need

not decide whether, or to what extent, Brand also supports the trial court's

decision in this case.

                                      COSTS


       Frank Russell finally argues that the court should not have awarded Bright

costs for her racial discrimination claims. But Frank Russell presents no

meaningful analysis of this claim. Accordingly, we reject the argument.34
                         ATTORNEY FEES ON APPEAL

       Bright requests an award of reasonable attorney fees and costs on

appeal. We hold that she is entitled to both.

       Under RCW 49.60.030(2), a successful plaintiff who also prevails on

appeal is entitled to an award of reasonable attorney fees and costs on appeal.35
       Here, because Bright prevails on appeal, she is entitled to an award of

attorney fees, subject to compliance with RAP 18.1. Likewise, she is also

entitled to an award of costs on appeal.




       33 139 Wn.2d 659, 989 P.2d 1111(1999).

       34 See Darkenwald v. Emp't Sec. Dep't.. 183 Wn.2d 237, 248, 350 P.3d 647
(2015); RAP 10.3(a)(6).

       35 Martini v. Boeing Co.. 137 Wn.2d 357, 377, 971 P.2d 45 (1999).

                                              13
No. 72663-3-1/14



      We affirm the trial court's order granting Bright attorney fees and costs.

Likewise, we award her reasonable attorney fees and costs on appeal, subject to

compliance with RAP 18.1.

                                                       iV/KjJ.
WE CONCUR:




    /AiM )




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