Court upholds discrimination verdict for employee but remands for new decision on attorneys fees and costs

Michael Hester sued the Department of Corrections, arguing that his supervisor at the Ryan Correctional Facility engaged in a pattern of discrimination that made his working conditions so hostile as to be untenable.  Hester presented evidence that he was repeatedly forced to do work that his white co-workers refused to perform; that the supervisor was condescending and demeaning; that the supervisor repeatedly made racial references; that he would force Hester to work while the white workers took leisurely meal breaks; and that he was repeatedly forced to work the hardest and most menial tasks.  About the best that the supervisor and Department of Corrections could offer was the claim that "while there was a mean-spirited atmosphere directed at [Hester], it was not based on race."

It would not be a shock to learn, then, that jurors ruled in favor of Hester and awarded him compensatory damages.  The trial judge then granted him payment of his attorneys' fees and certain taxable costs.  The DOC appealed, arguing that the verdict was inappropriate and that fees and costs were awarded inappropriately.  The Court of Appeals rejected the DOC"s suggestion that the testimony of Hester and his four co-workers was inadequate because it was "subjective."  The judges pointed out that the DOC was simply attacking the credibility of the witnesses, and that their credibility was an issue for jurors to assess.

The higher court did, however, reverse the award of fees and costs.  It noted that the judge had not made adequate findings with regard to why he approved the hourly rates for the attorneys, given that the rates approved were at the 95th percentile according to recent Bar Surveys.  The Court also reversed the taxation of certain costs, including some medical consultation expenses, certain trial exhibit enlargement expenses, and copying fees.  Although these costs were rightfully incurred, they are not among the costs which the prevailing litigant can tax to the losing party.