Chuong Van Pham et al., Respondents, v. Seattle City Light, Petitioner, 159 Wash. 2d 527

¶1 — Chuong Van Pham and Heliodoro Lara sued the city of Seattle, Seattle City Light (Seattle City Light) for employment discrimination on the basis of race and national origin. A jury awarded them over $550,000 collectively. Pham and Lara sought and were awarded attorney fees, though the trial court awarded them $50,000 less than they had requested and declined to apply a fee multiplier. The trial court also awarded Pham and Lara a supplemental award to compensate for the additional income tax consequences of receiving front and back pay and attorney fees in a single lump sum.

However, the trial court declined to award an additional tax offset for the tax consequences attributable to their noneconomic damages. The Court of Appeals concluded that the trial court erred by denying a tax offset for noneconomic damages, by declining to award attorney fees for some of the hours claimed by the plaintiffs’ lawyers, and by declining to apply a contingency multiplier. Chuong Van Pham v. Seattle City Light, 124 Wn. App. 716, 724, 726, 731, 103 P.3d 827 (2004). Seattle City Light petitioned for review, which we granted at 155 Wn.2d 1001 (2005).

Bridge, J. |2 We reverse the Court of Appeals in part and hold instead that the trial court properly declined to award an additional tax offset for Pham and Lara’s noneconomic damages. We also conclude that the trial court did not abuse its discretion when it calculated attorney fees. Finally, we agree with the Court of Appeals that the trial court erred in considering the weakness of the plaintiffs’ case when deciding whether to apply a fee multiplier. However, we remand to the trial court to determine whether, absent this improper consideration, a multiplier is justified here.

We affirm in part and reverse in part and remand to the trial court for proper consideration of whether a fee multiplier is warranted in this case. I Statement of Facts and Procedural History ¶3 In 1997, Pham and Lara sued Seattle City Light, alleging, among other things, discrimination based on race and ethnic origin in violation of the Washington Law Against Discrimination (WLAD),

chapter 49.60 RCW. A jury found in their favor and awarded them over $550,000. Specifically, the jury awarded Pham $263,075 in front pay, $86,072 in back pay, and $80,000 in noneconomic damages. The jury awarded Lara $80,140 in front pay, $10,000 in back pay, and $40,000 in noneconomic damages. ¶4 Both plaintiffs had been represented by Sheridan & Associates, PS, on a contingent fee basis. The plaintiffs filed a petition for attorney fees and costs, requesting $347,588.27 in attorney fees, $52,064.79 in costs, and a multiplier of 2.0.

In December 2002, the court awarded $297,532.77 in attorney fees (approximately $50,000.00 less than the requested amount) and $42,092.02 in costs. The trial court declined to apply any multiplier. ¶5 Then in March 2003, pursuant to Blaney v. International Ass’n of Machinists & Aerospace Workers, 114 Wn. App. 80, 55 P.3d 1208 (2002), the trial court granted a motion awarding Pham an additional $99,831 and Lara an additional $66,855 to cover additional tax consequences resulting from the fact that they were awarded front pay, back pay, and attorney fees in one lump sum.

Pham and Lara had requested additional tax offsets totaling $171,284 and $94,703, which would have also compensated Pham and Lara for the tax consequences of their noneconomic damages, but the trial court elected not to award any tax offset for noneconomic damages. ¶6 Pham and Lara appealed. Division One of the Court of Appeals affirmed in part and reversed in part. Pham, 124 Wn. App. 716. Among other things, the Court of Appeals held that Pham and Lara were entitled to compensation for their increased tax liability attributable to the noneconomic damage portion of the judgment. Id. at 731.

The Court of Appeals also held that the trial court abused its discretion when it awarded Pham and Lara approximately $50,000 less than they requested in attorney fees and when it denied the fee multiplier. Id. at 726. The Court of Appeals ordered the trial court to determine the proper fee multiplier on remand. Id. at 724. Seattle City Light filed a petition for review, which this court granted.

II Analysis Income Tax Consequences of Noneconomic Damage Awards ¶7 In this case, plaintiffs Pham and Lara were collectively awarded $120,000 in noneconomic damages for emotional distress, in addition to front and back pay. They sought supplemental judgment from the trial court that would have required, in part, that Seattle City Light compensate them for federal income taxes they would have to pay on the noneconomic damages. The trial court awarded Pham and Lara an offset for the tax consequences of receiving their front and back pay in one lump sum. Id. at 729.

However, the trial court declined to grant an offset that would have required the defendant to pay an amount equivalent to federal income taxes on the noneconomic damages. Id. The Court of Appeals reversed in part, concluding that the supplemental judgment should have included the offset for the noneconomic damages as well as front and back pay. Id. at 731. ¶8 Commentators and courts to date have recognized two ways in which an employment discrimination plaintiff may suffer adverse tax consequences. Gregg D. Polsky & Stephen F. Befort, Employment Discrimination Remedies and Tax Gross Ups, 90 Iowa L.

Rev. 67, 69 (2004). First, where the plaintiff is awarded back pay and/or front pay and the plaintiff’s recovery is received in a lump sum, the plaintiff is subject to marginal tax rates higher than if the plaintiff had earned the same amount of money in due course. Id. Second, prior to 2004 amendments to the tax code, a lump sum employment discrimination recovery that included attorney fees could result in application of the alternative minimum tax (AMT). If the AMT were implic'atecvit could cause the recovery to be taxed at rates in excess oi85 percent. Id. at 70.

This outcome is known as the “AMT trap,” and in severe cases it can result in a plaintiff losing money by winning the lawsuit. Comm’r v. Banks, 543 U.S. 426, 438, 125 S. Ct. 826, 160 L. Ed. 2d 859 (2005); see also Porter v. U.S. Agency for Int’l Dev., 293 F. Supp. 2d 152, 155 (D.D.C. 2003) (describing the potential tax consequences of an attorney fee award for Title VII plaintiffs). In recent years, some federal and state courts, including our own, have become more receptive to requests for augmented awards in employment discrimination cases to ameliorate these adverse federal tax consequences. E.g., Blaney v.

Int’l Ass’n of Machinists & Aerospace Workers, 151 Wn.2d 203, 215-16, 87 P.3d 757 (2004); Sears v. Atchison, Topeka & Santa Fe Ry., 749 F.2d 1451, 1456-57 (10th Cir. 1984); Equal Employment Opportunity Comm’r v. Joe’s Stone Crab, Inc., 15 F. Supp. 2d 1364, 1380 (S.D. Fla. 1998); Ferrante v. Sciaretta, 365 N.J. Super. 601, 839 A.2d 993, 996 (2003). ¶9 In Blaney, we concluded that the WLAD allows an offset for “additional federal income tax consequences” incurred by an employment discrimination plaintiff. Blaney, 151 Wn.2d at 216 (emphasis added).

Blaney was awarded front pay, back pay, and noneconomic damages for pain and suffering and emotional distress. Id. at 208. She sought to recover the additional taxes she would have to pay above and beyond what she would have paid had she been properly hired. Id. at 209. Specifically, we explained that Blaney would incur this greater liability because payment by lump sum places her in the highest tax bracket and triggers the “Alternative Minimum Tax (AMT), which disallows portions of her attorneys fees as a miscellaneous itemized deduction.” Id. at 209 n.2 (quoting declaration of D.

Edson Clark, a certified public accountant, discussing the adverse tax consequences of a lump sum award). ¶10 While Pham and Lara assert that this court impliedly endorsed a tax offset for noneconomic damages in Blaney because we did not explicitly distinguish between economic and noneconomic damages in that case, they ignore the fact that we did not endorse a particular calculation. Blaney, 151 Wn.2d at 217 (affirming the result reached by Court of Appeals but applying a different analysis); Blaney, 114 Wn.

App. at 100 (emphasizing that on remand the burden of proof would be on Blaney to prove the adverse tax consequences in that case and the amount to be awarded would be determined by the trial judge). Even though we took note of the amount Blaney requested in her motion for supplemental judgment, we left the actual calculation to the trial judge. Any implication that we endorsed an award covering taxes of noneconomic damages is simply incorrect. f 11 More importantly, the reasoning of the Blaney opinion does not support Pham and Lara’s position.

In determining whether payment for adverse tax consequences was a remedy contemplated by the WLAD, we looked to federal civil rights law and cases interpreting Title VII: Because WLAD incorporates remedies authorized by the federal civil rights act and that statute has been interpreted to provide the equitable remedy of offsetting additional federal income tax consequences of damage awards, we hold that WLAD allows offsets for additional federal income tax consequences. Blaney, 151 Wn.2d at 215-16 (emphasis added).

The Blaney court relied on the WLAD’s incorporation of federal law as its basis for allowing offsets. The federal cases cited in that opinion do not extend offsets to noneconomic damages. In Sears, the Tenth Circuit Court of Appeals allowed a tax offset because 17 years of back pay was awarded in one lump sum, but the court noted the “special circumstances” resulting from protracted litigation and suggested that an offset would not be appropriate in every case. 749 F.2d at 1456.

In Joe’s Stone Crab, also cited in Blaney, a federal district court concluded that it could “include a tax component in a lump sum back pay award to compensate prevailing Title VII plaintiffs” but declined to do so in that case because the Equal Employment Opportunity Commission failed to provide sufficient evidence to support such an award. 15 F. Supp. 2d at 1380 (emphasis added). Thus, the federal law relied upon by the Blaney court to support its tax offset does not extend to compensation for taxes on noneconomic damages.

Nor do Pham and Lara cite to any federal case (Title VII or otherwise) that extends offsets to noneconomic damages. Blaney simply provides no basis for the extension of offsets to noneconomic damages, and its analysis in fact establishes the opposite: that the offsets discussed in that case applied only to the extent that they apply under federal law, i.e., to front and back pay awards. This conclusion is supported by the Blaney court’s consistent reference to “additional” federal tax consequences.

E.g., Blaney, 151 Wn.2d at 212, 214, 216. ¶12 But even if we assume that Blaney does not address the question before us and ask ourselves simply whether we should now extend offsets to noneconomic damages, there are compelling reasons not to do so. First, noneconomic damages are inherently different from front and back pay. Front and back pay are damages that replace compensation that the employee would have earned in due course absent the discrimination. Polsky & Befort, supra, at 71. They are intended to place the plaintiff in the same economic position he or she would have enjoyed absent the discrimination.

See id. at 117-18. Moreover, plaintiffs asking for an offset to cover adverse tax consequences resulting from a single lump sum payment of front and back pay do not assume that the defense will pay their entire tax burden for that recovery; they ask only to be compensated for the additional tax consequences resulting from the lump sum character of the payment. Id. at 117. f 13 While noneconomic damages for emotional distress are also intended to compensate the plaintiff, they obviously do not replace a tangible economic loss.

Congress explicitly decided that noneconomic damages were to be taxable when they are attributable to nonphysical injury, and Congress placed this tax burden on the plaintiff. I.R.C. § 104(a)(2) (excluding damages, other than punitive damages, from gross income only if such damages arise from personal physical injury or physical illness). Under Pham and Lara’s reasoning, a plaintiff would retain no tax liability for noneconomic damages.

Shifting the tax burden on these awards entirely to the defendant simply goes too far. ¶14 Moreover, Pham and Lara ignore the fact that they can point to no other court that has extended federal tax offsets to noneconomic damages. Until now, courts and commentators have consistently contemplated adverse tax consequences in an employment discrimination case to be the difference between the taxes to be paid on the single lump sum award for front and back pay and the amount of taxes the employee would have paid had he or she earned the wages in due course.

Polsky & Befort, supra, at 72; Sears, 749 F.2d at 1456; O’Neill v. Sears, Roebuck & Co., 108 F. Supp. 2d 443, 446 (2000) (explicitly limiting an award covering increased tax liability to front and back pay only); Joe’s Stone Crab, 15 F. Supp. 2d at 1380; Ferrante, 839 A.2d at 994, 997. The plaintiffs in this case have not pointed to a single employment discrimination case in which a court has adopted their reasoning. ¶15 The plaintiffs instead rely on the rule that the WLAD must be liberally construed. RCW 49.60.020. However, the WLAD’s liberal construction clause is not without limitation. See, e.g., Dailey v.

N. Coast Life Ins. Co., 129 Wn.2d 572, 575, 919 P.2d 589 (1996) (concluding that the WLAD’s reference to any other remedy authorized by the federal civil rights act did not extend to punitive damages); Allison v. Hous. Auth., 118 Wn.2d 79, 85-86, 95, 821 P.2d 34 (1991) (acknowledging the WLAD’s requirement of liberal construction but adopting an intermediate “ ‘substantial factor’ ” standard of proof, rather than the more plaintiff-friendly “ ‘to any degree’ ” standard). The legislature would not have imposed such a broad tax-shifting mechanism absent more explicit direction.

Moreover, if we were to adopt Pham and Lara’s arguments, the reasoning could be applied to other types of awards. This would amount to a sweeping change in tort law in this state, one which we decline to impose absent legislative authorization. In sum, we reverse the Court of Appeals and conclude that the trial court did not err when it awarded tax offsets only for the front and back pay and attorney fee portions of Pham and Lara’s awards. Attorney Fee Calculation ¶16 The WLAJD entitles prevailing plaintiffs to “reasonable attorneys’ fees.” RCW 49.60.030(2).

To calculate a lodestar amount, a court multiplies the number of hours reasonably expended by the reasonable hourly rate. Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193 (1983). The hours reasonably expended must be spent on claims having a “common core of facts and related legal theories.” Martinez v. City of Tacoma, 81 Wn. App. 228, 242-43, 914 P.2d 86 (1996). The court should discount hours spent on unsuccessful claims, duplicated or wasted effort, or otherwise unproductive time. Bowers, 100 Wn.2d at 597, 600.

In order to reverse an attorney fee award, an appellate court must find the trial court manifestly abused its discretion. Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 65, 738 P.2d 665 (1987). That is, the trial court must have exercised its discretion on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). ¶17 In this case, the trial judge awarded Pham and Lara attorney fees in an amount approximately $50,000 less than they had requested.

While the trial court found the attorneys’ rates to be reasonable, it excluded from the lodestar calculation hours that it found were unnecessarily expended or not reasonably related to the plaintiffs’ favorable resolution. Specifically, the trial judge declined to award fees for hours spent on an unsuccessful claim for injunctive relief, the propriety of which was in doubt after Initiative 200 (1-200) became law. The trial court also declined to award fees for hours spent working on the plaintiffs’ unsuccessful cross-motion for

summary judgment in the federal district court, the plaintiffs’ motion on the merits at the Court of Appeals, their second amended complaint, which was never filed, and development of media contacts. The trial court excluded hours spent working on plaintiffs’ appeals, their unsuccessful request for a fee multiplier, income tax offset issues, settlement discussions, and determination of the impact of a plaintiff’s death on the judgment.

After having declined to award fees for these hours, the trial court determined that the plaintiffs were entitled to $297,532.77 in attorney fees and $42,092.02 in costs. f 18 The Court of Appeals concluded that the trial court erred when it declined to award fees for some of these activities, faulting the trial court for focusing on the short term failure of certain components of the litigation, rather than on the long term success of the litigation as a whole. Pham, 124 Wn. App. at 726.

The court regarded the rejected hours as part of the common core of facts and related legal theories upon which the ultimately successful claim was based. Id.

The court concluded that “neither the findings of the court nor the record below indicate that the work of plaintiffs’ attorneys was characterized to any substantial degree by duplication, wastefulness, churning, or other sins of mismanagement.” Id. at 725-26. ¶19 However, in its findings of fact, the trial court did reason that the hours at issue were unproductive or that they were not sufficiently related to the successful claim, both relevant considerations under the Bowers test.

The trial court questioned the propriety of seeking injunctive relief because this case was factually unique and the intervening passage of1-200 called the legality of injunctive relief into doubt. See Clerk’s Papers (CP) at 650; see also Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983) (noting that where a plaintiff achieved only limited success, “the district court should award only that amount of fees that is reasonable in relation to the results obtained”). The trial court concluded that the motion for

summary judgment in federal court, motion on the merits at the Court of Appeals, motion to file a second amended complaint, which was never filed, and time spent on media contacts were not reasonably related to the favorable claims. Finally, the trial court concluded that time spent on additional matters was time unnecessarily expended.

Because the trial court’s reasoning relies on the notion that these hours were unnecessarily expended, unproductive, or not sufficiently related to the successful claim, considerations allowed under the Bowers test, Bowers, 100 Wn.2d at 597, the trial court considered proper factors and did not commit an error of law. Moreover, the trial court took care to reduce the fees only in proportion to the amount of time devoted to these specific tasks. See Martinez, 81 Wn. App. at 243. ¶20 In this case, the trial judge took care to enter 35 findings of fact justifying his reasonable fee calculation.

This case involved a complex pretrial procedural history, involving both federal and state courts, an appeal to the Ninth Circuit, and an interlocutory appeal to the Court of Appeals. The case eventually culminated in a jury trial. In all cases, but especially in ones as complex as this one, 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. See Hensley, 461 U.S. at 437. That is why the law requires us to defer to the trial court’s judgment on these issues.

The issue before us is not whether we would have awarded a different amount, but whether the trial court abused its discretion. Pham and Lara have not shown that the trial court abused its discretion in calculating attorney fees in this case. Contingency Adjustment ¶21 After the lodestar has been calculated, the court may consider adjusting the award to reflect additional factors. Bowers, 100 Wn.2d at 598. The party requesting a deviation from the lodestar bears the burden of justifying it.

Id. “Adjustments to the lodestar are considered under two broad categories: the contingent nature of success, and the quality of work performed.” Id. Pham and Lara seek an adjustment to the lodestar amount based only on the contingent nature of their case. ¶22 The contingency adjustment is based on the notion that attorneys generally will not take high risk contingency cases, for which they risk no recovery at all for their services, unless they can receive a premium for taking that risk. Id. As an initial matter, we note that Seattle City Light encourages us to reject contingency enhancements altogether.

The United States Supreme Court in City of Burlington v. Dague, 505 U.S. 557, 559, 112 S. Ct. 2638, 120 L. Ed. 2d 449 (1992), addressed a contingency multiplier in the context of a federal statute that provided for attorney fees. The Dague Court reasoned that the lodestar calculation is presumptively reasonable and that a contingency multiplier would “likely duplicate in substantial part factors already subsumed in the lodestar.” Id. at 562.

Specifically, the Court explained that the risk of loss in a particular case is the product of (1) the legal and factual merits of the claim and (2) the difficulty of establishing those merits. Id. The difficulty of establishing the merits of the case is thus already reflected in the lodestar amount because the more difficult a case is, the more hours an attorney will have to prepare and the more skilled an attorney will have to be to succeed. Id. A contingency enhancement would result in double payment. Id. at 563.

With regard to the relative merits of the claim, the Court reasoned that this is a factor that always exists to some degree. Id. Applying contingency or risk multipliers results in a “social cost of indiscriminately encouraging nonmeritorious claims to be brought as well [as meritorious ones].” Id. ¶23 While subsequent Washington cases have considered contingency enhancements, none has directly addressed whether the Bague reasoning should apply to prohibit contingency multipliers in Washington. See Faraj v. Chulisie, 125 Wn.

App. 536, 550, 105 P.3d 36 (2004) (recognizing that multipliers can be appropriate in contingency cases but declining to apply one where the trial court did not); Carlson v. Lake Chelan Cmty. Hosp., 116 Wn. App. 718, 743, 75 P.3d 533 (2003) (upholding trial court’s award of 1.5 multiplier). However, the WLAD places a premium on encouraging private enforcement and, as discussed above, the possibility of a multiplier works to encourage civil rights attorneys to accept difficult cases. RCW 49.60.020; Martinez, 81 Wn. App. at 235.

While we presume that the lodestar represents a reasonable fee, occasionally a risk multiplier will be warranted because the lodestar figure does not adequately account for the high risk nature of a case. Therefore, we decline to disapprove of contingency multipliers altogether. ¶24 When determining whether a contingency multiplier is warranted in a particular case, we have explained that [i]n adjusting the lodestar to account for this risk factor, the trial court must assess the likelihood of success at the outset of the litigation.

This is necessarily an imprecise calculation and must largely be a matter of the trial court’s discretion. Nevertheless, certain guiding principles should be followed. . . . [T]o the extent, if any, that the hourly rate underlying the lodestar fee comprehends an allowance for the contingent nature of the availability of fees, no further adjustment duplicating that allowance should be made. Bowers, 100 Wn.2d at 598-99 (emphasis added). ¶25 In this case, the trial court declined to apply a fee multiplier.

In explaining his decision, the trial court acknowledged that this was a high risk case, but “much of that risk was a consequence of the plaintiffs’ own difficulty in articulating the nature of the claims of discrimination against them and the marginal nature of [the] plaintiffs’ evidence.” CP at 653.

The trial court found that “[although plaintiffs’ counsel should be fairly compensated for his perseverance in pursuing a difficult case with a modicum of evidence of discrimination, this [c]ourt concludes that the lodestar amount, without a multiplier, grants just compensation.” Id. (emphasis added). ¶26 We agree with Pham and Lara that the trial court should not have used their inability to articulate their claims as justification for denying the multiplier. A plaintiff’s difficulty in articulating his or her claims is one of many possible sources of risk.

But both the trial court and Seattle City Light have failed to explain why this source of risk should weigh against application of a contingency adjustment. Cf. Boeing Co., 108 Wn.2d at 65 (finding abuse of discretion where the trial court reduced attorney fees based on the novelty of the claim involved because novelty was not a relevant concern). Indeed, as the Court of Appeals explained, at the outset of a disparate treatment case, a plaintiff’s inability to articulate claims and a lack of known evidence are not uncommon. Pham, 124 Wn. App. at 723.

Neither the trial court nor Seattle City Light has offered an explanation as to why the source of risk should impact the determination of whether a contingency multiplier should be applied. f27 In considering the propriety of a contingency adjustment, we have held that the trial court abuses its discretion when it takes irrelevant factors into account. Boeing Co., 108 Wn.2d at 65; see also Perry v. Costco Wholesale, Inc., 123 Wn. App. 783, 809, 98 P.3d 1264 (2004).

Here the trial court considered an improper factor when evaluating the propriety of a contingency adjustment in this case. f28 However, the trial court also concluded that “the lodestar amount, without a multiplier, grants just compensation.” CP at 653. It is possible that the trial court would have denied the multiplier based on this conclusion alone. We therefore remand to the trial court to exercise its discretion as to the propriety of a multiplier without consideration of the improper factor. Perry, 123 Wn. App. at 809. Attorney Fees on Appeal ¶29 Pham and Lara requested attorney fees and costs on appeal.

Pham, 124 Wn. App. at 732. Requests for attorney fees at the Court of Appeals will be considered continuing requests at the Supreme Court. RAP 18.1(b). However, because Pham and Lara do not substantially prevail on review at this court, we deny attorney fees on appeal. Ill Conclusion ¶30 We conclude that the trial court did not err in declining to award Pham and Lara an offset for the tax consequences of their noneconomic damages. We also conclude that the trial court did not abuse its discretion in calculating the lodestar amount.

However, we recognize that when evaluating the propriety of a contingency multiplier, the trial court improperly considered the inability of the plaintiffs to clearly articulate their claims or provide substantial supporting evidence. We affirm in part, reverse in part, and remand to the trial court for reconsideration of whether a contingency multiplier is warranted in this case. Alexander, C.J., and C. Johnson, Madsen, Fairhurst, and J.M. Johnson, JJ., concur. The AMT, in general terms, is an alternative tax system designed to ensure that the very wealthy pay more than a minimal amount of income tax.

Polsky & Befort, supra, at 69 n.3. In 2004, the American Jobs Creation Act of 2004 (AJCA) amended the Internal Revenue Code to allow a taxpayer to deduct from his or her gross income attorney fees and costs paid in connection with a claim of unlawful discrimination. Comm’r v. Banks, 543 U.S. 426, 433, 125 S. Ct. 826, 160 L. Ed. 2d 859 (2005). However, the AJCA is not retroactive and in pre-AJCA cases, it was possible for an attorney fee award to be counted toward the plaintiff’s gross income, making it more likely that the AMT would be triggered. Polsky & Befort, supra, at 79-80.