Opinion
Civil Action No. 99-S-1047
June 21, 2000
ORDER re: Motion for Attorney Fees
In this employment case, orders under 28 U.S.C. § 636(b)(1)(A) and (B) referred pretrial case management and recommendation on dispositive motions to the undersigned magistrate judge. On January 20, 2000, the magistrate judge recommended that Defendants City of Aurora and St. Vincent's Motion to Dismiss Pursuant to F.R.C.P. 12(b)(1) and 12(b)(1)[sic] [filed August 31, 1999] be granted in its entirety. The recommendation was upheld by the District Judge on February 17, 2000, and the judgment of dismissal entered on February 23, 2000.
The matter now before the court is Defendants' Motion for Award of Attorneys' Fees [filed March 7, 2000]. The motion was fully briefed and the court heard oral arguments on April 14, 2000. Defense counsel also submitted supplemental fee affidavits, to which plaintiff responded.
I. Background
Plaintiff alleged that he was employed by the City of Aurora Police Department as a detective or agent. He claimed that he was constructively discharged, effective June 24, 1996. Against the City of Aurora, plaintiff alleged age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq., and violation of his constitutional rights to due process and equal protection of the laws. In a separate claim, plaintiff also contended that Defendant St. Vincent ("St. Vincent" or "Chief"), the Aurora Chief of Police, intentionally caused plaintiff emotional distress. Plaintiff sought declaratory and injunctive relief, "make whole relief," attorney and expert fees and costs, and punitive damages against defendant St. Vincent.
II. Analysis
Defendant St. Vincent seeks an award of attorney fees under the Colorado Governmental Immunity Act, which provides in pertinent part:
In any action against a public employee in which exemplary damages are sought based on allegations that an act or omission of a public employee was willful and wanton, if the plaintiff does not substantially prevail on his claim that such act or omission was willful and wanton, the court shall award attorneys fees against the plaintiff or the plaintiffs attorney, or both, and in favor of the public employee.
COLO. REV. STAT. § 24-20-110(5)(c).
In his complaint, plaintiff alleged an intentional infliction of emotional distress claim against St. Vincent, in which he set forth conclusory allegations against St. Vincent, accusing him of engaging in willful and wanton extreme and outrageous conduct allegedly entitling plaintiff to exemplary damages. See Complaint, ¶¶ 44-52, prayer for relief ¶ F. It is undisputed that plaintiff did not substantially prevail on his claim because the claim was dismissed in its entirety.
In response to defendant's motion for attorney fees, plaintiff argues only that St. Vincent does not meet the definition of "public employee" in Colo. Rev. Stat. § 24-10-110(1)(b), because the allegations against him were for activities outside the scope of his official duties. Pl. counsel's statement at oral argument April 14, 2000; Pl. 3-23-00 Resp. at 1-2; Pl. 5-8-00 Resp. at 1-3. Plaintiff contends that while St. Vincent's actions occurred in the course of his employment, they were not within the scope of his employment. In addition, plaintiff argues, willful and wanton actions were not within the scope of St. Vincent's official duties. Defendants respond that plaintiff has not proven that the alleged conduct was outside the scope of St. Vincent's duties as Chief of Police.
§ 24-10-110(1)(b), COLO. REV. STAT. (1999) states:
Defense of public employees-payment of judgments or settlements against public employees. (1) A public entity shall be liable for . . . (b)(1) The payment of all judgments and settlements of claims against any of its public employees where the claim against the public employee arises out of injuries sustained from an act or omission of such employee occurring during the performance of his duties and within the scope of his employment, except where such act or omission is willful and wanton or where sovereign immunity bars the action against the public entity, if the employee does not compromise or settle the claims without the consent of the public entity.
To determine whether an act is within the scope of an individual's employment, the operative inquiry is whether the employee is engaged in an activity that bears some relationship to the employer's business. See Pham v. OSP Consultants, 992 P.2d 657, 659 (Colo.App. 1999) (internal citations omitted). Here, all of the allegations in the complaint concerned St. Vincent's activities as chief of police in investigating the sexual harassment complaint against plaintiff, the internal affairs investigation, and his part in complying with the Cites disciplinary policies with respect to plaintiff's predisciplinary hearing. The same allegations were repeated with respect to the intentional infliction of emotional distress claim. See Complaint, ¶ 43.
Plaintiff did not allege in his complaint that St. Vincent acted outside the scope of his employment. Indeed, plaintiff contended that the acts and omissions by the Chief of Police "constituted state action." Id., ¶ 24. In his claim of age discrimination, plaintiff alleged that St. Vincent was "acting as the Chief of Police," and that "[t]he acts and omission of the City of Aurora and the Chief of Police are intentional." Id., ¶¶ 28, 29. In his second claim for relief, plaintiff alleged that St. Vincent, "by way of a policy, practice and custom, while serving as the Chief of Police . . ." ( Id., ¶ 37) deprived him of his constitutional rights to due process and equal protection of the laws and that he "acted under color of authority by recreating the policy and the law and misshaping operations." Id., ¶ 38. Plaintiff's intentional infliction of emotional distress claim against St. Vincent is devoid of any factual allegations other than those previously stated in the complaint. Id., ¶¶ 43-52. Accordingly, the court condudes that plaintiff has not stated any claim that St. Vincent was acting outside the scope of his employment.
The issue then becomes whether plaintiffs allegations of willful and wanton conduct are sufficient to remove the complained-of actions from the scope of St. Vincent's employment so that St. Vincent is no longer a "public employee" as contemplated by COLO. REV. STAT. § 24-10-110(5)(c).
"Willful and wanton" conduct is not defined the Colorado Governmental Immunity Act. However, courts addressing the issue have applied the definition in Colorado's exemplary damages statute, § 13-21-102(1)(b), C.R.S. (1999): Willful and wanton conduct is "conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to the consequences, or the rights and safety of others, particularly the plaintiff[s]." See King, et al v. United States, 53 F. Supp.2d 1056, 1073 (D. Colo. 1999) (internal citations omitted).
Here, the court dismissed plaintiffs intentional infliction of emotional distress claim for failure to state a claim. See Order of February 17, 2000 at 10-12. The court further found that mere allegations of willful and wanton conduct were insufficient to state a claim, citing Zerr v. Johnson, 894 F. Supp. 372, 376 (D. Colo. 1995) (dismissing claim of willful and wanton conduct on public employee's motion for summary judgment because plaintiff failed to raise a triable issue of whether alleged conduct was willful and wanton). The court finds that, here, plaintiff's bare, conclusory allegations of willful and wanton conduct are insufficient support for a finding that St. Vincent's conduct was so dangerous, heedless or reckless to be considered action outside the scope of his employment as Aurora's Chief of Police. Accordingly, St. Vincent is a public employee for purposes of the attorney fee award under COLO. REV. STAT. § 24-10-110(5)(c) (1999).
III. Fee Award
By its express language, COLO. REV. STAT. § 24-10-110(5)(c) mandates a fee award when a plaintiff does not substantially prevail on a claim of willful and wanton conduct when exemplary damages are sought.
Plaintiff does not object to defense counsel's submission of $150 per hour as a reasonable hourly rate. Pl. counsel statement at 4-14-00 oral argument. Plaintiff further does not object to the time attorney Schimberg claimed in his affidavit and supplemental affidavit for work on the defense of the intentional infliction of emotional distress claim. See Pl. 5-8-00 Resp. at 3. Plaintiff does object to the time spent by attorney Morales.
Specifically, plaintiffs counsel stated" 1 would raise the issue as to whether Mr. Morales short term representation had any impact upon the current resolution at the trial level, which relates to effectiveness of counsel and whether money is paid for that time." Id.
The court finds, as there is no objection, that $150 per hour is a reasonable hourly rate for an attorney with Mr. Schimberg's experience. Further, although there is no objection to reimbursement sought by Mr. Schimberg, the court has independently reviewed his contemporaneous time records. The court finds Mr. Schimberg has appropriately redacted his time records to account for defense of the intentional infliction of emotional distress claim against St. Vincent only. The court finds that 16.16 hours time was reasonably spent on the defense of St. Vincent, researching, writing and arguing the dispositive motion as to that claim, and preparing and arguing the request for attorney fees. 16.16 hours at $150 an hour will be awarded.
Although Mr. Morales stated in his affidavit that he reviewed his time records and estimated that he spent 1 and 3/4 hours on his argument directed to the claim against St. Vincent, Mr. Morales did not submit detailed, contemporaneous time records for the court's review. Accordingly, under the rationale of Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983), requiring the submission of detailed, contemporaneous time records, Mr. Morales' request for fees will be denied.
III. Orders
Defendants' Motion for Award of Attorneys' Fees [filed March 7, 2000] is granted in part and denied in part. It is further ORDERED that plaintiff and his counsel shall pay to defense counsel Schimberg or his law firm the sum of $2424.00 in attorney fees on or before August 1, 2000. It is further
ORDERED that plaintiff and his counsel are not required to reimburse Mr. Morales for his time expended on the defense of the same claim. It is further
ORDERED that any other request for relief in the motion is denied.