Saturday, February 28, 2004

Judge says city must pay lawyers $550,000

By Dan Horn
The Cincinnati Enquirer

Philecia Barnes

The legal battle over the demotion of a transsexual police sergeant four years ago will cost Cincinnati taxpayers more than $870,000.

The original total more than doubled Friday when a federal judge added $550,000 in attorney fees to the $320,000 that Police Officer Philecia Barnes - formerly Phil Barnes - won last year in U.S. District Court.

Judge Susan Dlott said the amount was justified because Barnes' lawsuit was an "extraordinary" civil rights case.

Federal civil rights laws allow attorneys to not only seek standard hourly fees, but also enhancements of those fees based on the importance and difficulty of the case. The law is designed to encourage lawyers to take on important civil rights cases, even if the money in dispute is small.

"This was no average sex discrimination case," Dlott wrote in her ruling Friday. "The novelty and difficulty of this question, combined with the immense skill requisite to conducting the case properly, merits an enhancement (of the fees)."

City Solicitor J. Rita McNeil acknowledged that Barnes' attorneys, led by Cincinnati lawyer Al Gerhardstein, are skilled and worked hard on the case. But she said additional fees are not warranted.

"I think this is inappropriate," said McNeil, who said she will appeal the decision. "It is usually a discretionary and extreme remedy to enhance the fees, and I just don't see the basis to do so."

Gerhardstein said city officials have only themselves to blame. He said if they had not discriminated against Barnes in the first place - and then fought so hard against her in court - the loss to city taxpayers would be much lower.

"The city brought this fee on itself," Gerhardstein said.

Barnes' lawsuit contended her intention to change her gender was the only reason for her demotion from sergeant to patrol officer during her six-month probationary period.

City lawyers argued that Barnes' grammar, time management and paperwork were not adequate.

A jury ordered the city to reinstate her and pay her damages. Barnes could have returned to her old job as a sergeant, but decided instead to take a $140,000 payment and return as a patrol officer.

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