Source: Montana Law Week

During a series of egregious acts of sexual harassment and retaliation by NorVal Electric Cooperative and its GM Craig Herbert, Shalaine Lawson was forced to go on medical leave 11/3/17 and unpaid leave 12/14/17. She began seeking counsel in 11/14. Due to Glasgow’s small size and limited number of attorneys and because NorVal is one of its main employers she was reluctant to retain local counsel and reached out to attorneys in Havre, Billings, and the Bitterroot Valley but none was willing to take her case. An attorney in Havre agreed to take it but only if the HRB entered favorable findings, which did not occur. She started looking in Bozeman and eventually retained Todd Shea who specializes in employment litigation. He began representing her in 11/17 on an hourly basis — $250/hr for him and $110/hr for paralegal services. It soon became clear that Lawson could not pay on an hourly basis and because of this and her untenable predicament at NorVal, Shea’s firm reluctantly agreed to represent her on a contingency in 2018.

Lawson filed an HRB complaint 11/24/17 alleging employment discrimination based on sexual harassment & retaliation. NorVal has tenaciously disputed her complaint throughout this proceeding.
Caroline Holien issued an HOD 10/22/19 which held that Lawson was subject to sexual harassment & retaliation and awarded $192,384.89 backpay, $13,635.51 interest on lost wages, $50,000 for emotional distress, and front pay capped at 4 years which totaled $415,786.06. It also held that Lawson was prevailing party for purposes of fees & costs and granted affirmative relief. Both parties appealed to the HRC.

While the appeals were pending, Shea began corresponding with an attorney for the EEOC, which filed an independent claim against NorVal based on the same conduct that gave rise to this proceeding, and after unsuccessful attempts to settle, filed an enforcement action in Federal Court in which Lawson moved
to intervene.

On 2/13/20 the HRC affirmed Holien’s findings that Lawson was subjected to sexual harassment & retaliation and left undisturbed her affirmative relief, her emotional distress award, her holding that Lawson is prevailing party, and her decision to cap front pay at 4 years. Due to math errors it modified all the damages except for emotional distress, awarding $189,094.30 back pay $13,402.30 interest on lost wages, and $505,957.92 front pay. Both parties petitioned for judicial review. This Court on 2/26/21 affirmed the holdings that Lawson was subjected to sexual harassment & retaliation and the $50,000 for emotional distress, but held that application of the 4-year cap to front pay was arbitrary & capricious and modified her front pay to the $1,379,338 that she originally sought. On 9/24/21 the Court awarded prejudgment interest on all damages awarded upon judicial review which began to accrue 10/22/19 when the HOD was issued.

On 11/5/21 the Court awarded $568,095.44 fees & costs, finding that Shea’s rates of $325 for himself and $125 for his paralegals are reasonable based on their knowledge & skill, Shea’s reputation, and the prevailing rates in the community. (It held that Montana is one community and thus it is reasonable to apply the prevailing rates in Bozeman.)

On 8/16/21 both parties filed proposed findings & conclusions on Lawson’s motion for fees & costs. NorVal asserted that her costs memorandum was untimely, which forced her to file a motion to strike which was briefed and denied 9/27/21.

The order found that NorVal’s assertion was objectively false and that Lawson was entitled to costs, and noted that its conduct was sanctionable. Lawson filed a motion for sanctions 10/4/21 which the Court granted and ordered NorVal’s counsel to pay reasonable fees & costs incurred as a result of the false assertion.

The Court issued its Consolidated Final Judgment 11/16/21, awarding Lawson $1,631,834.60 damages, prejudgment interest at 8%, post-judgment interest at 6.25%, and declaratory relief. Both parties appealed.

NorVal obtained an appeal bond in the amount of $2,698,743.06 and moved to stay enforcement. Lawson opposed the motion, citing deficiencies in the bond. On 1/19/22 the Court found the bond deficient and denied NorVal’s motion. NorVal moved the Supreme Court for relief and on 3/29/22 it overruled the Court’s holding regarding the sureties on the bond but affirmed on other grounds. Lawson then submitted a proposed writ of execution. Following a status hearing 4/4/22 the Court determined that NorVal could cure the defects in the bond and gave it to 4/11/22 to filed a renewed motion to stay with a bond that conforms with the Supreme Court opinion.

On 4/7/22 NorVal obtained a 2nd bond in the amount of $2,748,743.06 and filed a 2nd motion to stay enforcement which the Court granted 5/5/22. NorVal filed its Supreme Court appeal brief 2/23/22 challenging the HOD’s findings of sexual harassment & retaliation and this Court’s holding on front pay. It alleged that the transcripts of the contested case hearing were not part of the record on judicial review which prompted Shea to undertake a timeconsuming effort to locate and confirm submission of the transcript. On 3/18/22 Lawson filed a motion to supplement the record which clarified that the transcript was transmitted.

The motion was briefed and granted by the Supreme Court 5/5/22. Following an unsuccessful mediation, the Supreme Court 12/20/22 affirmed the liability findings for sexual harassment & retaliation by NorVal and reversed this Court’s increase of Lawson’s front pay. It affirmed the Court’s decision not to apply a multiplier to Lawson’s fees which was the sole issue raised by Lawson’s cross-appeal.

On 3/10/23 Lawson filed a Motion for Entry of Consolidated Final Judgment and Additional Attorney Fees and Costs incurred as a result of NorVal’s appeal and requesting the Court to adjust its calculation of interest to reflect current rates. NorVal responded 3/23/23, attempting to relitigate whether Lawson is
entitled to prejudgment interest on various damages and asserting that she was not entitled to additional fees.

On 4/18/23 the Court issued an amended judgment awarding Lawson $758,454.52 damages and leaving undisturbed its prior holdings as to affirmative relief and interest and holding that Lawson is prevailing party for additional fees. On 4/27/23 she filed declarations of Shea and his fees expert Bridget LeFeber
and a detailed invoice setting forth the additional fees sought.

At the hearing 5/1/23 the Court heard testimony from Shea and LeFeber on the reasonableness of Lawson’s requested fees. Lawson requests $109,915 in fees incurred as a result of NorVal’s appeal plus $650 for the 2 hours necessary for the 5/1/23 hearing, for a total of $110,565 plus $2,610 costs. The Court has previously held that she is prevailing party since the holding on liability for her claims of sexual harassment & retaliation were affirmed. It has also held that she is not entitled to a multiplier and she has not requested one in the pending motion. Thus the only issues presently before the Court are whether her requested hours, hourly rates, and costs are reasonable. Lawson requests fees for 298.8 hours of Shea’s time and 111.8 hours of paralegal time expended as a result of NorVal’s appeal. Excluded from her request are hours expended in the federal proceeding, her cross-appeal, and her petition for rehearing, as well as time for which she was paid by sanctions on NorVal’s attorney.

Shea’s skill & performance, quality of his representation, and result obtained all show that Lawson’s claimed hours are reasonable. His advocacy has been exemplary. He is very diligent and thorough, demonstrated excellent attention to detail, and clearly values the quality of his work product. By every metric, the results he obtained for Lawson are excellent. The affirmative relief granted by the HOD is sufficiently robust and harsh to ensure that NorVal’s discriminatory conduct is not repeated.

Additionally, the $758,454.52 judgment ultimately awarded is significant and will provide an excellent deterrent going forward. Other factors show that Lawson’s requested hours are reasonable. While this arguably should have been a simple routine sexual harassment case, it has been significantly complicated
by NorVal’s own conduct, which in turn demanded a greater degree of skill and experience to adequately represent Lawson. Its numerous unsupported factual arguments and overall uncompromising tenacity with which it has prosecuted its defense increased the time & labor required to maintain Lawson’s claims.
A defendant “cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.” Jacobs (1st Cir. 1987).

Testimony at hearing established that Shea’s requested $325/hr is substandard in the community given his reputation & experience. The Court previously found it to be reasonable based on these factors as well as the contingency risk and delayed payment he incurred throughout the proceeding. Since Lawson is not requesting an increased rate for Shea, the Court finds that the requested rate is reasonable.

Additionally, given the Court’s prior findings and the testimony at hearing, the Court finds that the requested $125/hr for Shea’s paralegals is reasonable given the market rate in the community and their skill & competence. Since NorVal raised no argument at to costs, the Court finds that the costs listed in Lawson’s memorandum are reasonable.

Lawson is awarded her requested fees including fees incurred in pursuit of fees totaling $110,565. She is awarded her requested costs totaling $2,610.