JAMS ARBITRATION CASE REFERENCE NO.

1100099676

Berry, Melvin,
Claimant(s),

and

Tesla Inc. dba Tesla Motors, Inc.,

Respondent(s).

______________________________________________

AMENDED FINAL AWARD

THE UNDERSIGNED ARBITRATOR, having been designated by the mutual consent of the

parties, and having examined the allegations, submissions, and proofs of the parties, finds,

concludes, and issues this Final Award as follows.

Introduction

The arbitration hearing of the above entitled matter was held via Zoom on March 8, 2021

through March 16, 2021.

Claimant Melvin Berry appeared through his attorneys, Jeannette Vaccaro and Lawrence

Organ. Respondent Tesla, Inc. appeared through its attorneys, Danielle Ochs and Laura Heyne.

Evidentiary Hearing

Opening statements were made by Claimant and Respondent, witnesses were called and

testified, and evidence was presented and accepted by the Arbitrator. At the conclusion of the

presentation of evidence, the parties stated they had no further evidence to offer. The matter,

with the exception of attorney’s fees and punitive damages, was deemed submitted for decision

on that date.
 Facts

The following is a statement of facts found by the Arbitrator to be true and necessary to

the award. To the extent that this recitation differs from either party’s position, that is the result

of determinations as to credibility, relevance, burden of proof considerations, and the weighing

of the evidence, both oral and written.

In June 2015 Melvin Berry was hired by Tesla Motors, Inc. as a Materials Handler I. Mr.

Berry, a college educated African-American man, was an outgoing, sociable, hard-working and

enthusiastic worker. He thought that he had found a home at Tesla and planned to make a career

for himself there. He was in good health and was very excited to be at Tesla. Both of his

performance reviews, spanning the period June 2015 through June 2016, were positive. He was

described as having “a great enthusiasm that is appreciated” and “can consistently be counted on

to do whatever it takes to meet the company’s critical schedules and commitments.” “Routinely

delivers high quality work.” He was promoted to Materials Handler II and given a raise.

By October 2016 everything had changed. Though he had experienced migraine

headaches in the past, by then they were much more frequent and serious. He took medications

for the migraines. He had lost his appetite and had lost weight (15 to 20 pounds.) He had high

blood pressure, and he was also seeing a psychologist for the first time. He felt worthless and

hopeless, like he had nothing to cling to. He suffered from panic attacks that at least once

required oxygen. He experienced shortness of breath. He suffered from fear, depression, anxiety

and frustration. He became quiet and cried a lot [Mr. Berry actually cried reciting this at the

hearing.] He questioned his sanity. He was sleepless. He felt he could no longer stay at Tesla,

resigned and started a new job.

 The question, of course, is how and why did this happen?

There is a huge difference of opinion between Claimant and Respondent. From

Claimant’s viewpoint, while at Tesla, Mr. Berry was subjected to a racially hostile and offensive

work environment. The N-word was commonplace and tolerated. (See exhibit 10: In December

2015 Richard Hayes told Paul James that use of the N-word was “common talk on the line.") The

work environment included graffiti with swastikas and other hate symbols or messages. Nigel

Jones testified to swastikas and N-words in the bathroom. Landry Miles testified to hearing the

N-word at least once a week, including from managers and supervisors. David Arriaga too saw

swastikas and the N-word in the bathroom and frequently heard the N-word throughout the

factory. The complaints of Black workers, including Mr. Berry, were routinely dismissed.

Mr. Berry’s first supervisor, Jay Gardner, cracked under pressure and called him and

Reggie White the N-word, saying, “Have you two N—-s ordered yet?" Mr. Berry confronted

Mr. Gardner, who “swatted him away.” Mr. Berry contemporaneously reported this to two co-

workers: David Arriaga and Landry Miles. Mr. Miles testified that he remembered the

conversation and that Mr. Berry said that he was going to HR. Miles told him “Good luck with

that.” Mr. Arriaga testified that he noticed that Mr. Berry seemed down and so he asked him

what had happened. Mr. Berry told him about Mr. Gardner’s statement and Mr. Arriaga testified

that Mr. Berry seemed upset and confused. After this confrontation, Mr. Berry was forced to

work longer hours, and had to push a heavier cart around. On August 11, 2016, Mr. Berry was

supposed to attend a meeting involving Maggie Crosby. That morning he sent a DM to HR

representative Chibuzo (Chichi) Atukpawu, saying he did not want to meet with Ms. Crosby as

she is a racist woman, and he was being discriminated against. She reported back saying. “I gave

Josh your information.” Unfortunately, either that did not happen or Mr. Hedges failed to act on
the information. In fact, Chichi testified that she did not share the fact that Mr. Berry’s concerns

were racial with Mr. Hedges.

On August 11, 2016, Mr. Berry did attend the meeting involving Maggie Crosby and

Mr. Gardner. According to Mr. Berry, the meeting was a “disaster” as Ms. Crosby and Mr.

Gardner ganged up on him.

His second supervisor, Bryan Vicente, had been Mr. Berry’s lead in the past and he had

heard him use the N-word previously. Also, Nigel Jones, an African American man who worked

at Tesla, went to the same high school as Mr. Vicente and remembered that Mr. Vicente

frequently used racial slurs, including the N-Word. Mr. Vicente is a white man who was about

23 or 24 at the time, and only had a high school education. Mr. Berry testified that the first day

Mr. Vicente was his supervisor, he called him the N-word, saying "N—-r, what took you so

long?" Mr. Berry took the following day off work. The next day, Mr. Vicente accused Mr. Berry

of taking a long break and said that he had spent an hour waiting for him. In response, Mr. Berry

took 3 videos of himself at various places in the plant and gave them to Mr. Vicente. From

September 2, 2016 to September 8, 2016 Mr. Berry arrived at work on time and worked a full

shift. On September 8, 2016 Mr. Berry was pulled into a meeting with Maggie Crosby and Mr.

Vicente and given a Final Written Warning for the videos. The warning also mentioned his

negative PTO. After the meeting Mr. Berry suffered a panic attack and started crying. There

follows a series of emails between Mr. Vicente and Maggie Crosby concerning Mr. Berry. First,

Mr. Vicente summarized all the days Mr. Berry had been out. He then asked Ms. Crosby,

"Where should we go with this?" When Maggie did not respond, Mr. Vicente said "I just wanted

to check on this" (putting a smiley face emoji on). As it turns out, according to Tesla, the reason

she did not respond is that she had been transferred to a different department and did not get that
email. (The Arbitrator found it curious that in the middle of an email conversation with a

supervisor about an employee, she would somehow become impossible or at least difficult to

communicate with, as Mr. Vicente seemed to have no information about her transfer.)

According to Tesla, it agrees that Mr. Berry initially was a good, dependable worker until

July of 2016, when his behavior began to deteriorate. Every time he was held accountable, he

would claim he was being discriminated against. But any actions taken by Tesla were not

racially based. If it were true that Mr. Berry was called the N-word by two supervisors, he

would have specifically complained to his coworkers and to HR about that. Furthermore, there is

no written evidence of that, not even in his medical records. Therefore, it did not happen. Also,

there was no adverse employment action against him. Eventually, Mr. Berry stopped

communicating with his new supervisor, Mr. Vicente, and instead would contact his lead to tell

him he would be late or not coming in. He voluntarily quit his job and got another job, so there

is no constructive discharge. Finally, there is no economic loss, or only $148.00 worth of

economic loss, and only garden variety emotional distress, based on the parties' stipulation.

Analysis

This was a difficult case to decide. Each side presented its case with a high degree of skill

and care. Credible witnesses testified and a good deal of documentary evidence was presented.

Finally, both sides argued their positions forcefully and with conviction. The Arbitrator took

detailed notes and carefully reviewed them and much of the written transcript before preparing

this Award.
A. Tesla’s Failure to Provide Mr. Berry with a Work Environment Free from Race

Harassment and Discrimination under 42 U.S.C section 1981.

1. He was subjected to slurs of a racial nature directed to him, racial words directed to others,

and swastikas and other racial conduct in the workplace. The Arbitrator finds that both his

supervisors called Mr. Berry the N-word, there was widespread use of the N-word, and racial

symbols such as swastikas were not always promptly removed. Furthermore, the evidence is

clear that Mr. Berry received positive job performance reviews through June 2016. Then

after he confronts Mr. Gardner with his use of the N-Word, he is written up. After Mr.

Vicente’s use of the N-word, he accused of coming in late, and of being nowhere to be found.

He stops communicating with Mr. Vicente and instead communicates with his lead, Glenn.

(It seems that no one at Tesla ever asked Mr. Berry why he did not want to have

communications with Mr. Gardner or Mr. Vicente, but it would certainly have been a good

question.) Then, after he takes the videos he is given a Final Written Warning that describes

the videos as “unprofessional by questioning his (Mr. Vicente’s) authority and his

responsibilities as a supervisor.” Having viewed and listened to these videos, it is apparent

that Mr. Berry is frustrated, but the videos have nothing to do with questioning Mr. Vicente’s

authority and his responsibilities. What this language in the Final Written Warning did do,

was to raise serious questions about Mr. Vicente’s credibility. Also, this is a case of a 23-

year-old white man with only a high school education supervising a 43-year-old African

American man with a college degree, a classic invitation for serious resentment.

2. Mr. Berry did not welcome the conduct.

3. The conduct was sufficiently severe or pervasive to alter the conditions of his employment

and created a racially hostile work environment. Case law is clear that one instance of a
 supervisor directing the N-word at a subordinate is sufficient to constitute severe harassment.

“No other word in the English language so powerfully or instantly calls to mind our

country’s long and brutal struggle to overcome racism and discrimination against African

Americans.” Ayissi-Etoh v. Fannie Mae (D.C. Cir. 2013) 712 F.3d 11112, 1131. The Ninth

Circuit has condemned the N-word in the strongest language, describing it as “highly

offensive and demeaning,” “evoking a history of racial violence, brutality, and

insubordination,” “perhaps the most offensive and inflammatory racial slur in English,” and

“the most noxious racial epithet in the contemporary American lexicon.” McGinest v. GTE

Serv. Corp. (9th Cir. 2004) 360 F3d 1103 (citations and internal quotation marks omitted).

The Arbitrator also finds that Mr. Berry would not have been called the N-word “but-for” the

fact that he is African American.

4. Mr. Berry perceived the work environment to be abusive or hostile. His subjective offense is

evidenced by his complaints to his coworkers and his distress.

5. A reasonable African American man in Mr. Berry’s position would consider the work

environment to be abuse or hostile.

6. Tesla is liable for the Harassment because It was Perpetrated by Mr. Berry’s Supervisors

Because Mr. Gardner and Mr. Vicente were Mr. Berry’s supervisors, Tesla is strictly liable

for their discriminatory conduct. Also, Mr. Berry did complain to Tesla’s General Counsel

that “there’s not room for advancement for African Americans” at Tesla (ex. 13). He also

specifically reported that Maggie Crosby was a “racist woman” and that he was being

“discriminated against” to HR’s Chichi Atukpawu (ex. 47b). There is a sharp factual dispute

over whether he verbally complained to Maggie Crosby and Josh Hedges but in light of the

written evidence on this point, the Arbitrator does not feel that issue needs to be decided. The
 point is that Tesla was put on notice of discriminatory conduct which triggered Tesla’s legal

requirement to investigate and take remedial action to end the racial discrimination. But it did

nothing.

B. Tesla’s Failure to Prevent Claim.

The parties disagree concerning whether Section 1981 covers failure to prevent claims.

The Arbitrator reviewed all the cases cited by both sides and could not come to a definite

conclusion. However, in light of the fact that the Arbitrator is ruling in favor of Mr. Berry’s first

claim, it does not seem necessary to rule on this claim.

C. Constructive Discharge.

To establish a constructive discharge, an employee must plead and prove that the

employer either intentionally created or knowingly permitted working conditions that were so

intolerable or aggravated at the time of the employee’s resignation that a reasonable employer

would realize that a reasonable person in the employee’s position would be compelled to resign.

Turner v. Anheuser-Busch, Inc. (1994) 7 Cal. 4th 1238, 1251. A constructive discharge claim

based on a hostile work environment “takes into account how the employer responded to the

[employee’s] complaints and whether it was likely that the harassment would continue.” Lee-

Crespo v. Schering-Ploughing Del Caribe Inc. (2003) 354 F.3d 34. 45.

Here, there was ample evidence that a reasonable person in Mr. Berry’s position would

have no choice but to resign because Tesla knowingly permitted intolerable working conditions

and failed to take corrective action when presented with Mr. Berry’s complaints. Every time he

reported discriminatory conduct he was ignored. No one conducted an investigation. In sum, the

Arbitrator finds for Mr. Berry on his constructive discharge claim.

D. CFRA Claims.

Mr. Berry filed his first DFEH claim on February 27, 2017. He was given a right to sue

letter March 23, 2017. Thus, he had one year to file a lawsuit on the claims alleged. He then

filed his second DFEH claim on October 18, 2017. He then filed his arbitration demand on

October 16, 2018.

In his original claim, he stated: “I believe I was harassed, my position was changed from

a Material Handler to a Floater and I was forced to resign because of my Age, Race Color and

Disability.” Mr. Berry’s first DFEH complaint encompasses his CFRA claims, given that he

brings a substantially similar allegation in his first DFEH complaint that he was “forced to

resign” due to his disability. The DFEH has stated that it investigated the facts that Mr. Berry

allege which now form the basis of his CFRA claims. Accordingly, Mr. Berry’s CFRA claims

are subsumed by the first DFEH complaint and therefore time-barred. Okoli v. Lockheed

Technical Ops. Co. (1995) 36 Cal.App.4th 1607, 1616-1617.

E. Damages.

At oral argument, Mr. Berry requested $164,962.76 in lost wages and $39,315.74 for 46

shares of Tesla stock for a total of $204,278.50 in economic damages and $500,000 for

emotional distress. He also requested an award of punitive damages in an unknown amount.

Tesla argued that Mr. Berry had no economic damages, or at most $148.00, and that he

stipulated to “garden variety” emotional distress damages. Tesla also argued that Mr. Berry’s

claims for emotional distress damages are barred by workers compensation exclusivity.

As to that claim, an award of compensatory damages in varied amounts to former

employees of district attorney's office in race discrimination action under § 1981, Title VII, and

state law was warranted; each employee testified about the personal difficulties experienced after
being terminated, which included, inter alia, stress, sleeplessness, strained relationships with

family members, loss of appetite or weight gain, depression, loss of self-confidence, and

worsening physical problems, such as high blood pressure, a bleeding ulcer, and hair loss.

DeCorte v. Jordan, C.A.5 (La.) 2007, 497 F.3d 433, rehearing and rehearing en banc denied.

See also TRG Cal. Prac. Employment Litigation at 7:1350: Remedies: Plaintiffs who

sue under § 1981 and prove intentional discrimination can recover lost wages and benefits,

emotional distress damages, and punitive damages (without any monetary limit). Prevailing

plaintiffs also are entitled to attorney fees and an order of court placing them in the position they

would have occupied absent the discrimination. [See 42 USC § 1988(b), (c)]. Thus, Mr. Berry’s

claims for emotional distress are not barred by workers compensation exclusivity.

As to Mr. Berry’s economic damages, the Arbitrator finds that in all likelihood, based on

Mr. Berry’s job performance his first year at Tesla, and on his testimony that he definitely

planned to stay there, he would have stayed at least until now. However, there was testimony

that Mr. Berry also worked for approximately one year at Impossible Foods, so there should be

an additional amount subtracted for the money he made there. Even though the Arbitrator does

not know the exact amount, it is reasonable to assume it was in the neighborhood of $21.00 per

hour, or approximately $38,000. Taking Mr. Berry’s amount of $164,962.76, and subtracting

$38,000 equals $126,962.76. Adding that number to the $39,315.74 in lost stock options, the

amount comes to $166,278.50 in economic damages.

As for his emotional distress damages, Mr. Berry agreed that “no claim is being made by

Claimant in this Action for mental and emotional distress over and above that usually associated

with the claims alleged in this Action.” Although Tesla has repeatedly referred to this stipulation

as Mr. Berry’s agreement not to seek anything more than “garden variety” damages, that
language appears nowhere in the stipulation and there was no evidence presented as to the

parties’ understanding of the document they signed. Thus, it is left to the Arbitrator to decide.

A quote from the following case is instructive:

“In order to assess the reasonableness of the award, we begin with the uncontroversial

principle that “[i]n Section 1983 actions, where it is determined that a party's constitutional rights

were violated, a plaintiff seeking ‘substantial damages should be awarded only to compensate

actual injury. ” ’Lighthouse Inst. for Evangelism v. City of Long Branch, No. CIV 00–

3366(WHW), 2010 WL 1491079, at *6 (D.N.J. Apr. 13, 2010) (quoting Pryer v. C.O. 3 Slavic,

251 F.3d 448, 453 (3d Cir.1994)); see also Saleh v. Upadhyay, 11 Fed.Appx. 241, 261 (4th

Cir.2001) (“An award of compensatory damages under § 1983 must be proportional to the actual

injury incurred.... Compensatory damages for emotional distress must be proven by competent,

sufficient evidence.” (internal quotation marks and citations omitted)); Young v. Pleasant Valley

Sch. Dist., No. 3:07–CV–00854, 2012 WL 1827194, at *20 (M.D.Pa. May 18, 2012) aff'd, 601

Fed.Appx. 132 (3d Cir.2015) (“to the extent Plaintiff may recover compensatory damages

against Defendant Pleasant Valley, she is only entitled to compensatory damages that have been

linked to an actual injury”); see generally Carey v. Piphus, 435 U.S. 247, 263 (1978) (in due

process claim, damages would not be presumed and plaintiff must “convince the trier of fact that

he actually suffered distress because of the denial of procedural due process itself”); Memphis

Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986) (“[W]hen § 1983 plaintiffs seek damages

for violations of constitutional rights, the level of damages is ordinarily determined according to

principles derived from the common law of torts.”). We are reminded that “[a] jury has very

broad discretion in measuring damages; nevertheless, a jury may not abandon analysis for

sympathy for a suffering plaintiff and treat an injury as though it were a winning lottery ticket.
There must be a rational relationship between the specific injury sustained and the amount

awarded.” Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768, 773 (3d Cir.1987). An award is not deemed

excessive, however, simply because the court, had it been the factfinder, would have awarded

some lesser amount. Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir.1989).

Our review of the caselaw49 and the evidence adduced at trial leads us to find that the

$200,000 compensatory damages award “shocks the conscience” and is “clearly unsupported”

given the limited evidence of harm that could reasonably be attributed to Holt's non-assignment

to the King of Prussia station, a position which, just a few months after his transfer to Pocono,

Holt no longer wished to pursue. See, e.g. Clopp v. Atl. Cnty., No. CIV.A. 00–1103 JEI, 2002

WL 31242218, at *3 (D.N.J. Oct. 7, 2002) (“A court may look at awards in similar cases in

determining whether an award is excessive.”). While our review of other cases shows that

psychological harm can often result in substantial damage awards, it also supports our finding

that the award here, given the evidence presented, is manifestly excessive.50 See Zielinski v. SPS

Technologies LLC, No. CIV.A. 10–3106, 2011 WL 5902214, at *9–10 (E.D.Pa. Nov. 22, 2011)

($250,000 in emotional distress damages remitted to $100,000 in hostile work environment and

disparate treatment case involving termination where evidence of emotional harm was limited to

plaintiff's own testimony); Shesko v. City of Coatesville, 324 F.Supp.2d 643, 652 (E.D.Pa.2004)

($20,000 in compensatory damages awarded in discriminatory failure to promote case where

Plaintiff testified to feeling depressed and had difficulty performing her job each day); Hall v.

Pa. Dep't of Corr., No. 3:CV–02–1255, 2006 WL 2772551, at *22 (M.D.Pa. Sept. 25, 2006)

(reducing emotional damages award to $75,000 in hostile work environment and retaliation case

involving a failure to promote where, inter alia, Plaintiff's testimony was the sole evidence of

emotional harm); Mondzelewski v. Pathmark Stores, Inc., No. CIV. A. 96–359 MMS, 2000 WL
654137, at *24 (D.Del. Mar. 20, 2000) (pain and suffering award for ADA discrimination and

retaliation claim was set, consequent to statutory cap, at $209,000 where Plaintiff had mental

breakdown, was at times suicidal, and, for several month could not work, and the emotional

harm was substantiated by his physicians, wife, and coworkers); Valentin v. Crozer–Chester

Med. Ctr., 986 F.Supp. 292, 305 (E.D.Pa.1997) ($209,000 in emotional damages reduced to

$52,250 where entirety of evidence on emotional damages, following retaliatory termination,

was plaintiff's own testimony); Glass v. Snellbaker, No. CIV.A. 05–1971 JBS, 2008 WL

4371760, at *20 (D.N.J. Sept. 17, 2008) (in retaliation claim, where plaintiff was

unconstitutionally forced into retirement and his own testimony was the only evidence of

emotional harm, emotional damages of $250,000 were reduced to $50,000); Hurley v. Atl. City

Police Dep't, 933 F.Supp. 396, 423 (D.N.J.1996) aff'd, 174 F.3d 95 (3d Cir.1999) (noting, albeit

over fifteen years ago, that “[a]wards for emotional distress in discrimination cases arising under

§ 1983, § 1981, and Title VII rarely come close to $575,000, and typically are for less than

$50,000”51 and that “[w]here very large awards have not involved concrete economic damages,

they have often been subject to remittitur or been vacated”) (citations omitted) (collecting cases);

Murphy v. City of Phila. Dep't of Recreation, No. 07–CV–4104, 2011 WL 3652480, at *5

(E.D.Pa. Aug. 19, 2011) (upholding $100,000 in emotional damages for retaliation claim

supported by testimony of “great emotional pain, anguish, anxiety and depression, [which]

resulted in [the plaintiff] becoming physically ill and experiencing severe stress and strain in her

various personal relationships, including those with her children. Plaintiff also testified that she

suffered from these symptoms for more than a year and that she sought treatment from several

doctors and therapists with little, if any relief” while noting that upholding the award was a

“close call”).” Holt v. Lighthouse (2015 WL 4944032) at 28-29.

 Here, Mr. Berry’s emotional harm (as more particularly described above) seemed

“usually associated with the claims alleged in this Action” in terms of an African American man

being called the N-word by two white supervisors, hearing the N-word frequently in the factory,

and observing swastikas and other offensive drawings. His testimony regarding his depression,

etc., was also corroborated by his medical records and the testimony of several other witnesses.

Landry Miles stated that when he first met Mr. Berry, he was an upbeat, colorful guy, a good

worker and very professional. One day he noticed that Mr. Berry seemed upset and when Mr.

Miles asked him why, Mr. Berry told him that Mr. Gardner had just called him the N-word. Mr.

Miles testified that when things started going south he noticed a change in him in that instead of

being an upbeat guy, he was upset and just not himself. David Arriaga also recalled that when

Mr. Berry told him about Mr. Gardner’s statement he was upset. He stated that normally, Mr.

Berry was energetic, but that later on he was confused and frustrated, not his normal self.

In light of all the evidence, the Arbitrator hereby awards Mr. Berry $100,000 in

emotional distress damages.

As for punitive damages, the Arbitrator does not find by clear and convincing evidence

that Tesla is liable for punitive damages.

Attorney’s Fees and Costs

In his opening brief for fees and costs, Claimant requested $1,429,222.32, plus 10%

interest running from January 7, 2021.

In its opposition, Respondent argued that the Arbitrator should award Claimant nothing,

in light of Claimant’s inflated request, and that even if the Arbitrator decided to award

something, it should be no more than $215,223.10.

 In his reply brief, Claimant did slightly reduce the number of hours claimed (35.4 hours)

but also increased the total amount sought to account for the time preparing the reply brief, such

that he now seeks $1,435,271.57, plus 10% statutory interest running from January 7, 2021 until

the judgement is satisfied (not the date of the Interim Award as advanced by Respondent).

In all, the parties submitted over 630 pages.

Taking a look at the result achieved in this Arbitration, the Arbitrator agrees that she

awarded Mr. Berry a significant award of $266,278.50 and just as importantly, a vindication of

his civil rights. The Arbitrator also agrees that that result was not without a price. This case was

heavily litigated and contentious and Respondent mounted a fierce defense. As described by Mr.

Berry, Tesla fought “tooth and nail.” It also appears that Respondent was dilatory and caused Mr.

Berry to file numerous motions before Arbitrator Jaye concerning discovery, which is supposed

to be self-executing. In addition, it withheld relevant documents notwithstanding an Order

compelling it to produce “Me-too” evidence. It also produced a PMQ witness who was not

prepared to testify on the noticed topics and provided inaccurate information. In sum, the

Arbitrator finds that Respondent’s handling of the defense of this case greatly increased Mr.

Berry’s attorney’s fees and this award is intended to reflect that.

The Arbitrator does not find that awarding Claimant nothing, or at most $215,223.10, is

appropriate, as Mr. Berry is the prevailing party, entitled to recover his reasonable attorney’s fees

and costs. Punishing Claimant because of his attorneys’ conduct would hardly be fair. Nor does

the Arbitrator find that $1,435,271.57 is an appropriate amount, based on the totality of the

circumstances. An award of that size would essentially amount to punitive damages, which the

Arbitrator did not order. Thus, the Arbitrator carefully reviewed the work done, the result

obtained, the motion, opposition and reply, and attempted to reach a pragmatic, justified award.
 A. The Lodestar: Claimant’s Attorneys Fee Rates

The Arbitrator finds that Mr. Berry’s attorney’s fee rates are approximately within but

somewhat higher than the “prevailing market rates” in the relevant community. He submitted

declarations from both Lawrence Organ and Jeannette Vaccaro, and also declarations from a

number of other attorneys in the community regarding the rates they charge, as well as the rates

of their associates and staff (Kristen Scott, Katharine Chao, Jayme Walker, Maria Bourn,

Lawrence Bonn and Chris Whelan). The Arbitrator also finds the Laffey Matrix to be relevant

and reliable. Thus, she awards the following hourly rates: Lawrence Organ $750; Navruz Avloni

$500; Julianne Stanford $500; Cimone Nunley $200; Sabrina Grislis $150; Theodore Gagauz

$150; Susan Organ $100; Jeannette Vaccaro $600 and Robert Bond $100.

B. The Number of Hours Expended

Respondent argues that Mr. Berry’s attorney’s fees ought to be significantly reduced

because he only prevailed on one attorney’s-fee bearing claim and a reduced fee award is

appropriate when a claimant achieves only limited success. In response, Mr. Berry points to

Hensley v. Eckerhart (1983) 461 US 424 at 435: “[w]here a lawsuit consists of related claims, a

plaintiff who has won a substantial relief should not have his attorney’s fees reduced simply

because the district court did not adopt each contention raised in the lawsuit.... [t]he result is

what matters.”

Mr. Berry’s claims did arise out of a common set of facts and involved related legal

theories. He took CFRA medical leave because of the racial harassment he suffered at work.

Thereafter, Respondent used his protected leave as a pretext to subject him to specious discipline

(Final Written Warning with no previous warnings and October 3 meeting) in retaliation for his
complaints about discrimination and harassment. Moreover, he obtained complete relief: he was

awarded virtually all of the economic damages he requested and a substantial award for his non-

economic damages. It makes no difference that the Arbitrator did not find for him on “each

contention raised in the lawsuit.... [t]he result is what matters.” Hensley, supra at 435.

Inexplicably, Respondent also argues that Mr. Berry is “...seeking over five times the

amount of the arbitration award, plus the contingent amount they contractually agreed to deduct

from Mr. Berry’s award (which could range anywhere from 33% to over 50%) (Opposition, page

22) and “...counsel be limited to the contingent amount they contractually agreed to deduct from

Mr. Berry's award." (page 29).

In his reply, Mr. Berry's attorney explains that Mr. Berry's counsel will not double-dip,

by recovering their statutory attorney’s fees plus a contingent fee. "This is completely false —

Mr. Berry will receive every penny he was awarded - $266,278.50." Reply, page 6.

Turning to the specific number of hours expended, this was a difficult issue to deal with.

The Arbitrator understands that in general, courts should defer to the winning lawyer’s

professional judgment as to how much time he or she was required to spend on the case. This is

especially true in civil rights cases, where representation is on a contingency basis, giving little

incentive to bill excessive time. On the other hand, an Arbitrator is not required to accept the

number of hours as reasonable, but must carefully use her discretion to determine an appropriate

number if the claimed number appears too high. Also, Respondent has suggested many

categories of fees that it believes should be reduced. The Arbitrator has expended considerable

time reviewing Respondent’s objections to the individual time entries and Mr. Berry’s detailed

analyses of these objections. These are discussed separately below:

 Staff at Arbitration

Respondent seeks a reduction of $29,715 for staff at arbitration. Mr. Berry explains that

his support staff provided valuable assistance taking notes of testimony, assisting with exhibits,

coordinating witness appearances, etc.

There will be no reduction for staff at arbitration.

Unused “Me-too” Work (Exhibit A)

Respondent seeks to strike 15.6 hours which it claims is for non-compensable billing for

Me-Too work. In fact, the Arbitrator was extremely impressed by the Me-Too witnesses and

doubts whether Mr. Berry would have prevailed without them given the total denial by

Respondent of any of the claims of racial harassment and discrimination against him.

Navruz Avloni’s Fees

Respondent seeks to strike $33,150 for all hours attributable to Navruz Avloni. Having

reviewed Respondent’s request and Mr. Organ’s specific comments with regard to her work, the

Arbitrator will reduce her time to 30 hours.

DFEH Work (Exhibit B)

Respondent seeks to strike 47.9 hours. In Hensley, supra, the court stated: “It is not

legally relevant that plaintiffs’ counsel expended a certain limited amount of time pursuing

certain issues of fact and law that ultimately did not become litigated issues in the case or upon

which plaintiffs ultimately did not prevail. Since plaintiffs prevailed on the merits…. counsel are

entitled to an award of fees for all time reasonably expended in pursuit of the result achieved…”

Hensley, supra at 431. Here, the Arbitrator finds that the DFEH work was intertwined and arose

out of the same nucleus of facts as the Section 1981 claims and therefore denies this request.
 Unused Witnesses (Exhibit C)

Respondent seeks to strike 28.7 hours related to work performed on witnesses that were

not ultimately called at trial, claiming that it was ineffective and duplicative. As Mr. Berry

explains, some of the time related to witnesses that respondent identified for the last day of

arbitration but ended up not calling.

Administrative Work (Exhibit D)

Respondent seeks to strike 28.2 hours as non-compensable, claiming that secretarial fees

are not compensable. However, Claimant points out that under prevailing law, the work of

support staff is compensable if it is the prevailing practice in the community to bill for that work

separately. According to Claimant, in the San Francisco Bay Area, it is commonplace to bill for

support staff at market rates. The Arbitrator did reduce the hourly rates of some staff members

and the hours billed.

Opening/Closing (Exhibit E)

Respondent seeks to strike 122.3 hours counsel spent assisting with the opening and

closing arguments. Here, the Arbitrator agrees that some of the time seems excessive and

duplicative.

Listening to Opening (Exhibit F)

Respondent seeks to strike 9.2 hours related to time spent by staff who assisted with

practicing the opening statement. Here, the Arbitrator did not find the time to be excessive or

unnecessary and will not strike any of it.

Motions in Limine

Respondent requests a reduction of $164,355 in attorney’s fees for work on the motions

in limine. At the time these motions were brought, the Arbitrator was amazed that they were
being brought by either side. In fact, the Arbitrator could not recall a single arbitration she has

had in which anyone has brought one. Considering that one of the few grounds for vacating an

arbitration award is for the arbitrator to refuse to let a party to present evidence, the idea of

granting a motion in limine to prevent an expert from testifying or to prevent Mr. Berry from

testifying as to his wage loss or his economic loss is absurd. For the foregoing reasons, the

Arbitrator is going to strike time from the fee award for time spent by Mr. Berry’s attorneys

bringing motions in limine. No time will be struck on Mr. Berry’s opposition to Respondent’s

motions in limine.

Misc. Excessive Time (Exhibit H)

Respondent seeks to exclude 8.8 hours of miscellaneous time. 6.9 hours relate to Ms.

Vaccaro’s time attending the depositions of Maggie Crosby and Jay Gardner. The Arbitrator

agrees this time should be excluded. As to the 1.9 hours of Mr. Organ’s time reviewing

documents for the PMQ deposition and then waiting for her to attend, again, the Arbitrator

agrees this time should be struck.

C. Multiplier

Respondent argues that multipliers are only awarded in “extraordinary circumstances”.

However, the Arbitrator agrees with Mr. Berry that “the lodestar adjustment method, including

discretion to award fee enhancements, is well established under California law” and that the

purpose of a fee enhancement is “‘primarily to compensate the attorney for the prevailing party

at a rate reflecting the risk of nonpayment in contingency cases as a class. “(Ketchum v. Moses

(2001) 24Cal. 4th 1122, 1137-1138). For example, Mr. Organ stated in his declaration that he

was initially reluctant to get involved in this case because of his negative experience in
arbitrating the Lambert v. Tesla matter, which he lost, costing him $1.1 million in fees and over

$100,000 in costs. (P. 9)

Based on the totality of the circumstances in this case, the Arbitrator will order a

multiplier of 1.25.

D. Costs

Respondent seeks to tax costs in the amount of $1,619. In Mr. Berry’s reply brief, he

explains that the costs for serving subpoenas and the electronic transcripts were reasonably

necessary for the litigation. He also explained that the non-appearance fee of $459 was deducted

before the costs were totaled. Thus, the Arbitrator will not strike any costs.

E. Motion Fees

Mr. Organ claims fees for bringing the motion in the amount of $12,665 and fees for the

reply totaling $18,190. Mr. Organ’s staff’s fees for bringing the motion total $1,290. Ms.

Vaccaro claims fees for bringing the motion totaling $16,672.50 and her reply fees, totaling

$22,410. Ms. Vaccaro’s assistant’s fees for bringing the motion total $660 and his fees for the

reply total $1,920.

The Arbitrator finds that it should not have cost $73,000 for an attorney’s fees motion

and will reduce the fee according to the chart below.

Concluding, the Arbitrator strove to employ a pragmatic approach. The case involved

one plaintiff against one defendant, for whom he worked a scant 17 months. It was a 7-day

arbitration. The Arbitrator felt that Mr. Organ’s hours should be reduced to 335 hours and Ms.

Vaccaro’s to 415 hours and worked from there. She reduced the hourly rates for most of the

other attorneys and staff and the actual hours, in most cases.
 In sum, Claimant Melvin Berry is entitled to an award of $755,579 in fees and costs, as

follows:

Elements of Award Hours Rate Amount Awarded

Cal. Civil Rights Law Group
Lawrence Organ 335 $750 $251,250
Navruz Avaloni 30 $500 $15,000
Julianne Stanford 50 $500 $25,000
Cimone Nunley 25 $200 $5,000
Sabrina Grislis 66.6 $150 $10,000
Teodora Gagauz 0.9 $150 $135
Susan Organ 25 $110 $2,500
1.25x Multiplier Applied $77,221
Fee Motion Hours - Organ 15 $750 $11,250
Fee Motion Hours - Grislis 4.2 $150 $630
Fee Motion Hours - Nunley .6 $200 $120
Costs - Organ $11,477.07
Total Fees & Costs Awarded $409,583
Elements of Award Hours Rate Amount Awarded
Law Office of Jeannette A.
Vaccaro
Jeannette A. Vaccaro 415 $600 $249,000
Robert Bond 100 $100 $10,000
1.25x Multiplier Applied $64,750
Fee Motion Time - Vaccaro 30 $600 $18,000
Fee Motion Time — Bond 17.2 $100 $1,720
Costs $2,526.50
Total Amount Awarded $345,996
$755,579
May 12, 2021