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finding 333 hours reasonable for litigation taking place over three years, and including "a number of depositions" as well as "participation in and attendance at the eight day trial"
Summary of this case from Hallmark v. Cohen & Slamowitz, LLPOpinion
99 Civ. 2323 (RPP)
November 1, 2002
Counsel for Plaintiff: Law Office of Anthony Ofodile Brooklyn, New York, By: Anthony C. Ofodile.
Counsel for Defendant: Jackson Lewis LLP New York, NY, By: Felice B. Ekelman, Steven D. Hurd.
OPINION AND ORDER
Defendant OneSource, Inc. ("OneSource") moves, pursuant to Rule 50 of the Federal Rules of Civil Procedure (Fed.R.Civ.P.), for judgment as a matter of law. In the alternative, Defendant moves, pursuant to Rule 59 (Fed.R.Civ.P.), for a new trial on the issue of damages or for a remittitur with respect to the jury's award of back pay and compensatory damages. Plaintiff Sylvester Clarke ("Clarke") moves for attorney's fees and costs. For the following reasons, Defendant's motions are denied and Plaintiffs motion is granted.
Background
In 1995, Plaintiff began working for a company called Total Building Maintenance ("TBM") as a temporary porter. (Joint Pretrial Order at 5.) TBM was engaged in the business of providing cleaning and maintenance services to commercial building owners and managers. (Id.) In or about 1996, Defendant, which was engaged in a similar business, acquired TBM. (Id.)
On September 20, 1996, Plaintiff filed a complaint with the New York State Division of Human Rights ("SDHR") alleging that Defendant had removed him from 60 Hudson Street for an "Arab" porter, had not given him medical benefits, and had not placed him in a permanent porter position because he is black. (Id.) On November 27, 1996, Plaintiff filed a letter of amendment to his 1996 SDHR complaint, alleging he had been retaliated against for filing that complaint by not receiving temporary assignments. (Id.)
In January 1998, Defendant entered into a written stipulation with Plaintiff and his union in which Defendant agreed to place Plaintiff in a "permanent" position. (Id.) Pursuant to the stipulation, according to Plaintiffs trial testimony, Plaintiff was placed in a position as a night porter at 224 West 57th Street from which he was transferred in April 1998 to a similar position at 630 Third Avenue. (Tr. at 94, 100.) He was transferred again in June 1998 to 122 East 42nd Street, and then in July 1998 to 1400 and 1411 Broadway. (Id. at 105, 108-09.)
On July 15, 1998, Plaintiff filed another complaint with the SDHR, claiming Defendant had not placed him in a "permanent" position both because he is black and because he had filed an earlier administrative complaint. (Jt. Prt. Ord. at 6.) On August 4, 1998, Defendant's district manager, George Sinishtay suspended Plaintiff for three business days without pay for failure to perform his assigned duties. (Def. Exh. 22.) Following Plaintiffs suspension, Plaintiff went to the workplace and requested a letter of recommendation from a tenant in the 1411 Broadway building where Plaintiff worked, in violation of company rules. (Id. at 124.) On August 6, 1998, Plaintiff filed an amendment to his 1998 SDHR complaint, alleging that his suspension without pay was in retaliation for filing that complaint. (Jt. Ptr. Ord. at 6.) On August 10, 1998, Plaintiff was terminated by Defendant for his violation of company rules. (Tr. at 127.)
On March 29, 1999, Plaintiff filed suit against Defendant and three individual supervisors alleging race discrimination and unlawful retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYHRL"), 42 U.S.C. § 1981, and conspiracy under 42 U.S.C. § 1985. By Orders dated August 20, 1999 and April 18, 2001, Judge McKenna dismissed all of Plaintiffs claims except his retaliation claims under Title VII against Defendant OneSource only.
A jury trial of Plaintiffs retaliation claims was held from May 13-22, 2002. During the trial, Plaintiff claimed that Defendant had retaliated against him on seven different occasions, including (1) his replacement at 60 Hudson Street by a fellow employee, (2) his assignment to route work in 1996-97, (3) his transfer from 224 West 57th Street to 630 Third Avenue in April 1998, (4) his transfer from 630 Third Avenue to 122 East 42nd Street in June 1998, (5) his transfer from 122 East 42nd Street to 1411 Broadway in July 1998, (6) his three day suspension without pay in August 1998, and (7) his termination on August 10, 1998. The jury found Defendant liable for unlawfully retaliating against Plaintiff by suspending him without pay on August 4 1998 for three days, but found in favor of Defendant on all other counts. The jury awarded Plaintiff $45,000 in back pay and $10,000 in compensatory damages.
Discussion
A. Defendant's Rule 50 Motion
When considering a Rule 50 motion, the court must view all evidence in a light most favorable to the nonmoving party. See New England Inc. Co. v. Healthcare Underwriters Mut. Ins. Co., 295 F.3d 232, 240 (2d Cir. 2002). Judgment as a matter of law "is reserved for those rare occasions when there is `such a complete absence of evidence supporting the verdict that the jury's finding could only have been the result o[f] sheer surmise and conjecture or the evidence must be so overwhelming that reasonable and fair minded persons could only have reached the opposite result.'" Sorlucco v. New York City Police Dept., 971 F.2d 864, 871 (2d Cir. 1992) (quoting Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988)).
1. Prima Facie Case
Under Title VII, Plaintiff first had the burden of establishing by a preponderance of the evidence, a prima facie case. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). In order to establish a prima facie case of retaliation under Title VII, Plaintiff had to show "(1) that [he] was engaged in protected activity by opposing a practice made unlawful by Title VII; (2) that the employer was aware of that activity; (3) that [he] suffered adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse action." Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 79 (2d Cir. 2001) (internal citation omitted).
Plaintiff proved that he was engaged in a protected activity by introducing as exhibits his complaints of discrimination and retaliation on September 20, 1996, November 27, 1996 and July 15, 1998. Although his first two complaints do appear to be too remote in time for a jury to conclude that they caused Defendant to suspend Plaintiff, the July 15, 1998 complaint is not. Plaintiff proved that Fortunato Surace, One Source's Vice President of Labor Relations, was aware of the complaint and also proved Plaintiff suffered disciplinary actions thereafter culminating in suspension without pay on August 4, 1998. (Tr. at 409; Def. Exh. 22.)
The issue for the jury therefore was whether Plaintiff had proved a causal connection between his filing his complaint with the SDHR and his three day suspension on August 4, 1998. In its opening argument and throughout the trial, Defendant's position was that at One Source the management personnel employees responsible for supervising and disciplining the Plaintiff were not aware that Plaintiff had filed any complaints of discrimination or retaliation, and that knowledge of those complaints were restricted to Mr. Surace and the personnel department. (Tr. at 36). Plaintiffs counsel took the position that Defendant's claims of no knowledge of Plaintiffs protected activities were unbelievable and did not meet the test of reason.
In connection with Plaintiffs three day suspension without pay, Mr. Sinishtay testified that he made the suspension decision; that he wrote the suspension notice; that in doing so he was unaware Plaintiff had filed any complaints of discrimination or retaliation; and that he had not been directed to suspend Plaintiff by upper management. (Id. at 261, 264-65.) He testified that he had suspended Plaintiff based on 1) complaints from tenants about Plaintiffs work; and 2) his own assessment of the work areas assigned to Plaintiff, after several warnings had been issued to Plaintiff on July 15, 17 and 20, 1998. (Def. Exh. 22 and Def Exh. 14, 15, 16, 17, 18, 19, 20.) Plaintiffs supervisor at 1400-1411 Broadway, Elsa Selcanin, gave testimony which supported Mr. Sinishtay's grounds for suspending Plaintiff and testified that she too was unaware that Plaintiff had filed any complaints of discrimination or retaliation. (Tr. at 675-76).
Plaintiff presented evidence that he had received no complaints about his work at 122 E. 42nd Street from his supervisor Mr. Qosja or the tenants (Id. at 38, 42-43); that a complaint by his supervisor at 224 West 57th Street about his cleaning for a tenant was contradicted by the tenant (Id. at 229-34); that Plaintiff had been assigned to 1400-1411 Broadway by Mr. Surace who did have knowledge of Plaintiffs discrimination and retaliation complaints (Id. at 409, 413); that after he filed his discrimination claim on July 15, 1998, Plaintiff reported to work that evening and at the end of the shift was written up for failure to complete his assignment even though he had had to wait for over two hours to start work when at 7 p.m., Mr. Sinishtay showed him his assigned spaces and how to set the alarms (Id. at 111-14); that when he met his supervisor Chancy Sherrill that evening, the supervisor's first words were that he "had to write [him] up" (Id. at 114); that the subsequent disciplinary report was copied to Mr. Sinishtay and Mr. Surace (Id. at 460-462; Def. Exh. 14); and that because he had been given a disproportionately large work assignment, he was unable to complete his work on July 17, 20 and August 4, 1998. (Tr. at 120-21.)
It is well settled that proof that an adverse employment action occurred in the proximity to the protected activity is sufficient to establish the causation element in a plaintiffs prima facie case. See e.g., Taitt v. Chemical Bank, 849 F.2d 775, 778 (2d Cir. 1988) ("a reasonable jury could infer a causal link based upon the public nature of [the plaintiffs] involvement in the [employment] action and the close proximity between his involvement and the start of his employment troubles"). The written warning Plaintiff received on the evening of July 15, 1998 was in the proximity to the discrimination claim Plaintiff had filed earlier that day and the remaining warnings and suspension occurred soon thereafter. Accordingly, a reasonable jury could conclude that Plaintiff had established a prima facie case.
There was no evidence as to when One Source received notice of the complaint.
2. Defendant's Rebuttal
It was up to Defendant to rebut Plaintiffs prima facie evidence that Defendant had retaliated by showing that Defendant had suspended Plaintiff for a legitimate non-discriminatory reason. Hicks, 509 U.S. at 506-07. Defendant offered much rebuttal evidence by showing that tenants had complained about Plaintiffs cleaning at 1400-1411 Broadway (Tr. at 488-89; 654-57); by offering Mr. Sinishtay's and Ms. Selcanin's testimony that Plaintiff did not complete his work assignments (Id. at 465, 658); by showing that Plaintiffs work assignments were within the limits of Defendant's agreement with the union on the maximum number of square feet to be assigned each employee (Id. at 467-69); and by proof that Plaintiffs work assignment was satisfactorily completed by employees who preceded and succeeded him in the position. (Id. at 474-77.)
The issue for the jury remained whether the decision to suspend Plaintiff was motivated by Plaintiffs having engaged in a protected activity. Hicks, 509 U.S. at 507-508 (after defendants proffer of a legitimate reason for taking an adverse employment action, plaintiff must convince the jury "that the proffered reason was not the true reason for the employment decision, and that race was") (internal citation omitted). This issue is one of weighing the credibility of the witnesses, solely a jury issue. First, Plaintiffs counsel elicited from Ms. Selcanin that Plaintiffs work assignment at 1400-141 I Broadway was on five floors and that some other employees only cleaned one floor. (Tr. at 666-67.) Second, if the jury believed Plaintiff, a reasonable jury could come to the conclusion that on July 15, 1998, Defendant giving Plaintiff a warning for not having completed his work, when he had been prevented from doing so for over two hours due to his supervisors being absent, was so unfair that it must have been in retaliation for his filing an SDHR complaint, particularly since Mr. Sinishtay knew he had started work two hours late and did not revoke the warning when he received notice of it; and because Mr. Sherrill in his first meeting with Plaintiff announced that he "had to write [him] up." Defendant did not call as witnesses Mr. Sherrill or the other supervisors assigned that evening, nor did they call Plaintiffs supervisors who caused the warning to be issued on July 17, 1998, Plaintiffs next day of work, to rebut Plaintiffs testimony. It was for the jury to determine the credibility of the witnesses at trial. Accordingly there was evidence before the jury from which it could conclude that Plaintiffs protected activity was the true reason for his suspension. Accordingly, Defendant's Rule 50 motion is denied.
B. Defendant's Rule 59 Motion
Defendant's Rule 59 motion does not seek a new trial on the issue of liability, but rather requests a remittitur or a new trial on the issue of damages. When a district court finds a jury award to be excessive, it may order a new trial exclusively on the question of damages. See Tingley Systems, Inc. v. Norse Systems, Inc., 49 F.3d 93, 96 (2d Cir. 1995). In the alternative, a district court may grant a remittitur, "condition[ing] a denial of a motion for a new trial on the plaintiffs accepting damages in a reduced amount." Id. A court cannot uphold a jury award that "is so excessive that it shocks the judicial conscience." Phillips v. Bowen, 278 F.3d 103, 111 (2d Cir. 2002) (upholding district court's refusal to reduce a jury award because it did not shock the conscience).
1. $45,000 in Back Pay
The purpose of all remedies available under Title VII, "including back pay, is to make whole the victim of unlawful discrimination." Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 411 (S.D.N.Y. 1996). "[V]ictims should be restored to the economic position they would have occupied but for the intervening unlawful conduct of employers," but "they should not receive a windfall." Id. at 411-412 (internal citations and quotations omitted).
It is Defendant's position that Plaintiffs award should be reduced to the actual loss of pay arising from his missed three days of work related to the suspension, and that Plaintiffs own misconduct following his suspension by violating the company rule about approaching tenants was an intervening factor resulting in Plaintiffs termination. Defendant maintains that it should bear no responsibility for back pay related to Plaintiffs termination. Defendant's argument is unpersuasive.
The purpose of back pay is to cure the "economic injury that [a] plaintiff has suffered as a result of discrimination." Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 145 (2d Cir. 1993) (internal citation omitted). In other words, victims should only be compensated for damages that are the "but for" cause of the unlawful conduct of an employer.Iannone, 941 F. Supp. at 411 (internal citation omitted). Courts have held that defendants are potentially liable for damages resulting from lawful terminations if the damages were proximately caused by a prior unlawful employment action. See e.g., Paolitto v. John Brown EC, Inc., 151 F.3d 60, 68 (2d Cir. 1998) (holding that employee who was unlawfully denied a promotion and then was later lawfully terminated in a downsizing was eligible for post-termination relief because the person who received the promotion was not terminated in the downsizing). See also, Banks v. Travelers Companies, 180 F.3d 358, 363-64 (2d Cir. 1999) (holding that jury could award back pay past a lawful company downsizing after an unlawful employee termination because the replacement for the employee was unaffected by the downsizing).
In this case, the jury was entitled to find that but for the improper suspension by Defendant of Plaintiff in violation of Title VII, Plaintiff would not have solicited a work recommendation from a tenant and would not have been lawfully terminated. Accordingly, the jury's calculation of back pay in the amount of $45,000, presumably encompassing Plaintiffs loss of work for a period subsequent to both his three-day suspension and termination, discounted for the income from subsequent employment, is not so inappropriate as to shock the conscience of the Court.
2. $10,000 in Compensatory Damages
Although a jury has a great amount of discretion when awarding pain and suffering damages, "a court may not sustain an award that it deems so excessive as to suggest that it was motivated by `passion or prejudice' rather than a reasoned assessment of the evidence of injury presented at trial." Bachir v. Transoceanic Cable Ship Company, 2002 WL 413918, *10 (S.D.N.Y. 2002) (internal citation omitted).
In this case, Plaintiff testified about his fear of losing his job and the ability to provide for his family, which was heightened by the fact that his wife recently had a baby and that she was unemployed. (Tr. at 125-126.) Plaintiff testified to the stress of the termination and his subsequent unemployment on his marriage and the resultant need to seek marriage counseling. (Id. at 137-38.) The same "but for" causation analysis which has been applied to back pay damages applies to compensatory damages and accordingly the jury was entitled to find Plaintiffs unlawful suspension, leading to his lawful termination, warranted such damages. The jury's award of $10,000 in compensatory damages does not shock the conscience of the Court given the circumstances facing Plaintiff as presented at trial, and does not lead to a miscarriage of justice.
Defendant's motions both for new trial on the issue of damages and remittitur are denied.
C. Attorney's Fees and Costs
42 U.S.C.A § 2000e-5(k) provides in relevant part that the court, in Title VII actions, "in its discretion may allow the prevailing party . . . a reasonable attorney's fee (including expert fees) as part of the costs . . ." The Supreme Court provided guidance for civil rights cases, noting in Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) that in "[m]any civil rights cases . . . the plaintiffs claim for relief will involve a common core of facts or will be based on related legal theories." Often in a Title VII case, there will be several related civil rights claims and alternative arguments where "counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours on a claim-by-claim basis." Id. An attorney is entitled to recover for time spent working on both the successful claims and the intertwined unsuccessful claims. See id. See also, Diaz v. Robert Ruiz, Inc., 808 F.2d 427, 429 (5th Cir. 1987) (holding that plaintiff is entitled to attorney fees for his successful FLSA claim and noting that the "recovery extends to time spent on non-FLSA issues to the extent that those issues interrelate and overlap with FLSA ones"). Ultimately, it is the job of a district judge to "focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Hensley, 461 U.S. at 435.
In this case, although Plaintiff was successful on only one of seven legal claims, all claims were part of a common core of facts such that it is impossible to allocate the attorney's time to each of the separate theories. Two lawyers worked on the case for over three years for approximately 333 hours (not including the senior attorney's travel time), encompassing the time spent for the taking of a number of depositions, and for participation in and attendance at the eight day trial. In view of all of the circumstances, the hours charged, relative to the success achieved, are reasonable.
Plaintiffs counsel of record speaks with a strong accent which has the effect of causing questions to be repeated due to the difficulty of court reporters and witnesses in understanding the question. Accordingly, he utilizes more time than an attorney without an accent. This time factor is compensated for by the relatively low hourly rate he charges.
Based on this Court's experience and knowledge of the lawyers in the Southern District, this Court finds that the requested hourly rates of $250 and $150 per hour is reasonable for the experience levels of the two attorneys involved in this case. The rate of $250 per hour is reasonable for an attorney with 14 years experience and who has been admitted to the New York State Bar for eight years. The rate of $150 per hour is reasonable for an attorney with 15 years experience and who has been admitted to the New York State Bar for three years.
The total fee awarded is $76,726.58.
Plaintiff requests costs of $1,571. The request is reasonable and is granted accordingly.
Conclusion
For the foregoing reasons, Defendant's motions are denied and Plaintiffs motion is granted.