Opinion
97-CV-1553.
September 27, 2001.
Nora E. Curtin, Esq. New York District Office New York, New York, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff.
James H. Hanson, Esq., Laurie T. Baulig, Esq., Indianapolis, IN., SCOPELITIS GARVIN LIGHT HANSON, Attorneys for Defendant.
Thomas J. Grooms, Esq., Syracuse, New York, BOND SCHOENECK KING, L.L.P., Local Counsel for Defendant.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Presently before the Court is a motion for an award of attorneys' fees and expenses filed by defendant following this Court's issuance of a Memorandum-Decision and Order which granted defendant's motion for summary judgment. In the dismissed action, plaintiff, the Equal Employment Opportunity Commission ("EEOC"), alleged that defendant J.B. Hunt Transport, Inc., ("Hunt"), the nation's largest publicly held truckload motor carrier, violated the Americans with Disabilities Act ("ADA"), codified at 42 U.S.C. § 12101 et seq., by engaging in a pattern or practice of unlawful employment discrimination. To wit, EEOC alleged that Hunt discriminated against a class of applicants to whom Hunt had conditionally offered employment after the company learned these applicants were taking various prescription medications which appeared on a Drug Review List ("DRL") used by Hunt to screen truck driver candidates. According to EEOC, the DRL, containing hundreds of disqualifying medications, was not created by a medical doctor nor did Hunt perform individual assessments of applicants' actual risks for or experience with dangerous side effects. Consequently, EEOC contended that when Hunt refused to hire this class of truck driver applicants because of their taking of prescription medications, it discriminated against persons with disabilities or "perceived" disabilities in violation of the ADA.
II. FACTUAL AND PROCEDURAL BACKGROUND
In its Memorandum-Decision and Order dismissing the action, this Court agreed with Hunt that EEOC's claim was fatally flawed because it "assume[d] that persons who are taking prescription medications for various medical conditions are disabled within the meaning of the ADA." Equal Employment Opportunity Comm'n v. J.B. Hunt Trans., Inc. ("EEOC v. J.B. Hunt"), 128 F. Supp.2d 117, 125 (N.D.N.Y. 2000). Indeed, EEOC had contended that it was not required to show that the plaintiff class members were "qualified" persons with disabilities or perceived as persons with disabilities within the meaning of the ADA during the liability phase of its "pattern or practice" of discrimination case against Hunt. This Court disagreed holding "[s]urely Congress intended and the Supreme Court inferred in Teamsters that in the context of the bifurcated burden of proof in a `pattern or practice' case the government is still obligated to provide prima facie evidence of "unlawful" discrimination." Id. at 124. "To be sure, a discriminatory policy which is not "unlawful" is not prohibited by the ADA." Id. Thus, this Court found that while EEOC did not need to prove that each and every class member in the case was the victim of discrimination prohibited by the ADA to withstand summary judgment, it had to show that at least some of the purported class members were "qualified" individuals with disabilities or individuals perceived as having disabilities. "Proof of an employment pattern or practice, without proof that such pattern or practice discriminated against `qualified' individuals within the meaning of the ADA is insufficient." Id. at 125.
(citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 490 (1999) ("By its terms, the ADA allows employers to prefer some physical attributes over others and to establish physical criteria. An employer runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity. Accordingly, an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment — such as one's height, build or singing voice — are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.")
EEOC did not meet this burden. EEOC averred simply that since Hunt failed to hire the various claimants because of their use of certain medications, it "regarded" them as disabled, though they were not, in violation of the ADA. This Court stated:
These allegations and arguments, though appealing on their face, are deficient in one key respect. They fail to establish or even allege the nature of the disabilities afflicting any of the claimants or the disabilities they were regarded as having. All that EEOC has demonstrated herein is that each claimant had a medical or physical condition — which in virtually every case is unspecified — which he or she controlled or attempted to control by way of medication. That the claimants might have faced pain, illness or perhaps even death but for use of the various medications does not demonstrate that any claimant was "substantially limited" in a major life activity or perceived as being so by Hunt. In a revealing portion of its brief, EEOC argues that when Hunt used the DRL to screen truck driver applicants, it made employment decisions based on perceived disabilities created by "fears, stereotypes, and generalizations about particular medications or the underlying condition without determining whether the individual himself could perform the duties of the position." However, the ADA does not protect people based merely on their use of medications. Nor is it "a general protection of medically afflicted persons. It protects people who are discriminated against by their employer . . . either because they are in fact disabled or because their employer mistakenly believes them to be disabled. If the employer discriminates against them on account of their being . . . ill, even permanently ill, but not disabled, there is no violation." Christian v. St. Anthony Med. Ctr., 117 F.3d 1051, 1053 (7th Cir. 1997).EEOC v. J.B. Hunt, 128 F. Supp.2d at 126-27.
Indeed, the Supreme Court addressed this very issue in Sutton when it stated :
The [EEOC's] directive that persons be judged in their uncorrected or unmitigated state runs directly counter to the individualized inquiry mandated by the ADA. Th[is] . . . approach would often require courts and employers to speculate about a person's condition and would, in many cases, force them to make a disability determination based on general information about how an uncorrected impairment usually affects individuals, rather than on the individual's actual condition. For instance, under this view, courts would almost certainly find all diabetics to be disabled, because if they failed to monitor their blood sugar levels and administer insulin, they would almost certainly be substantially limited in one or more major life activities. A diabetic whose illness does not impair his or her daily activities would therefore be considered disabled simply because he or she has diabetes. Thus, the guidelines approach would create a system in which persons often must be treated as members of a group of people with similar impairments, rather than as individuals. This is contrary to both the letter and the spirit of the ADA.527 U.S. at 483.
In arguing that "[a] practice that screens out individuals on the basis of medications is a policy that screens out individuals because of their disabilities," EEOC cited the Supreme Court's most recent pronouncement on coverage of the ADA in Sutton: "Looking at the [ADA] as a whole, it is apparent that if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures — both positive and negative — must be taken into account when judging whether that person is "substantially limited" in a major life activity and thus "disabled" under the Act." 527 U.S. at 482. However, this Court found that EEOC relied on the afore-referenced language from Sutton in isolation since the case emphatically held that "`[t]he use or nonuse of a corrective device does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantially limiting.'" EEOC v. J.B. Hunt, 128 F. Supp.2d at 126 (quoting Sutton, 527 U.S. at 488) (emphasis added). This Court determined that "[a]side from conclusory allegations regarding Hunt's unspecified `fears, myths and generalizations' about the claimants, there is no evidence that even one of the 540 claimants in the class EEOC purports to represent in this action was either disabled, regarded as disabled or had a record of disability as contemplated by the ADA." Id. at 136.
The Supreme Court expressly found that in determining whether an individual is disabled, courts and employers must consider negative side effects suffered by an individual resulting from the use of mitigating measures, particularly when those side effects are very severe. See Sutton, 527 U.S. at 484 (citing JOHNSON, ANTIPSYCHOTICS: PROS AND CONS OF ANTIPSYCHOTICS, RN (Aug. 1997) (noting that antipsychotic drugs can cause a variety of adverse effects, including neuroleptic malignant syndrome and painful seizures); LIVER RISK WARNING ADDED TO PARKINSON'S DRUG, FDA CONSUMER (Mar. 1, 1999) (warning that a drug for treating Parkinson's disease can cause liver damage); CURRY KULLING, NEWER ANTIEPILEPTIC DRUGS, AMERICAN FAMILY PHYSICIAN (Feb. 1, 1998) (cataloging serious negative side effects of new antiepileptic drugs)). This result is consistent with the "individualized approach of the ADA." Id.
Based thereupon, this Court granted Hunt's motion for summary judgment noting that EEOC's apparent "misapprehension of the operation of the ADA" was "troubling." Id. at 135. To wit, this Court found that "EEOC's zealous prosecution of [the claims against Hunt], particularly the claim of punitive damages" following Sutton was "inexplicable" in light of Sutton's explicit statement concerning "exactly who is and who is not covered by the ADA." Id. This Court noted with concern "EEOC's focus on Hunt's policy of excluding candidates taking certain medications from driving its trucks, even assuming the policy is ostensibly unfair because some individuals may never experience dangerous side effects from medication usage, without first determining whether the candidates in question are disabled within the meaning of the ADA." Id. at 136. Likewise, this Court questioned "EEOC's pursuit of punitive damages against Hunt in the absence of proof that Hunt intentionally or even recklessly discriminated against the disabled when it developed the DRL as a safety-based standard which applicants in many cases met by providing a certified medical release." Id. Indeed, "Hunt's averment that it believed DOT regulations not only allowed, but required, it to institute some kind of medication screening policy — even if various medications it deemed unacceptable were not automatically prohibited by DOT — [was] never . . . controverted by EEOC." Id. It is with these considerations in mind that the Court addresses defendant's motion.
III. DISCUSSION
A. Relevant Standard for Award of Attorneys' Fees
The ADA provides, in relevant part: "In any action or administrative proceeding commenced pursuant to this chapter, the court or agency in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs . . . ." 42 U.S.C. § 12205. The Supreme Court has emphasized that while a civil rights plaintiff may be awarded attorney's fees even if he or she prevails on only part of the case and even if he or she obtains a small amount of damages, a prevailing defendant may obtain attorney's fees only "upon a finding that the plaintiff's action was frivolous, unreasonable or without foundation, even though the action was not brought in subjective bad faith." Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 422 (1978), accord Hughes v. Rowe, 449 U.S. 5, 14 (1980). In the Second Circuit, defendant's attorney's fees have been awarded where the plaintiff's civil rights claims are groundless and unreasonable. See Davidson v. Keenan, 740 F.2d 129 (2d Cir. 1984); Harbulak v. County of Suffolk, 654 F.2d 194 (2d Cir. 1981). Other circuits have made similar awards. See, e.g., Bernstein v. Menard, 728 F.2d 252 (4th Cir. 1984) (awarding fees in § 1983 action against principal and school district where action was found to be frivolous and vexatious).
B. Defendant's Entitlement to Award
In Carrion v. Yeshiva University, the Southern District of New York observed:
. . . [D]iscretion should be sparingly exercised in awarding attorney's fees and taxing costs against a [civil rights] plaintiff, as the entire legislative scheme embodied in that Title is to encourage persons aggrieved on racial grounds to come into court. Although, in light of the legislative scheme, caution should also be exercised in awarding fees when the EEOC — rather than a private person — undertakes the burden of prosecution, somewhat different considerations then come into play. Where an aggrieved individual brings suit a court should recognize — and give consideration to — the fact that members of a minority which has historically been subject to discrimination may well have their judgment affected by the history of their group, and perceive racial animus where none exists. A court should therefore be extremely cautious in charging such a person with bad faith. On the other hand, where an official agency [such as the EEOC] decides to inject the power of government into a dispute between private persons, such agency should at least satisfy itself that the claim it is supporting is bona fide.397 F. Supp. 852, aff'd, 535 F.2d 722 (2d Cir. 1976). In the present case, EEOC clearly misapprehended the spirit and meaning of the very statute it is charged explicitly with enforcing by way of prosecution and promulgation of regulations. The ADA is unlike other civil rights statutes which make membership in a particular class — such as race, sex or religious persuasion — on its face a qualifying factor. Under the ADA, if a plaintiff, even a physically or mentally impaired plaintiff, is not "disabled"or "regarded as" having a disability within the particular confines of the ADA, he or she is not protected by the statute. If this intent was not clear from the face of the statute, it was made explicitly clear by the Supreme Court in Sutton and its progeny.
EEOC contends that Sutton addressed "entirely different issues" than those presented in this case because in Sutton, the Supreme Court simply considered whether mitigating measures should be taken into consideration when determining whether an individual is actually "disabled" within the meaning of the ADA whereas here, EEOC averred that Hunt "regarded" the claimant class as disabled. In the first instance, EEOC's characterization of Sutton as being so limited is belied by the opinion itself which clearly addressed the "regarded as" prong of ADA coverage. Secondly, even this were not true, it is undisputed that whether a claimant alleges discrimination under the ADA based on actually being disabled or simply being "regarded as" having a disability, he or she must still allege and prove the disability in question. In this case, EEOC alleged and proved nothing more than that Hunt "regarded" the claimant class as taking certain medications, the potential side effects of which Hunt determined posed unacceptable safety risks. At no time did EEOC discover or present evidence that Hunt discriminated against any of the claimants on the basis of a disability — actual or perceived. Indeed, EEOC did not even allege, much less prove, the nature of the supposed disabilities the claimants in question were perceived as having by Hunt. Indeed, EEOC recognized as much by arguing that it was not required to demonstrate the existence of a disability or perceived disability during the liability phase of a "pattern or practice" ADA case. Focus on the "pattern or practice" of Hunt's refusal to hire persons taking certain medications without even the most cursory analysis of whether this pattern or practice singled out persons on the basis of particular disabilities or perceived disabilities would be an unfortunate misapprehension by an ordinary litigant but it is an unfathomable one on the part of a government agency such as EEOC. Thus, in this Court's estimation, EEOC chose to pursue this case long after discovery should have made it obvious that there was no case to pursue.
To wit, the Supreme Court noted as follows:
Our conclusion that petitioners have failed to state a claim that they are actually disabled under subsection (A) of the disability definition does not end our inquiry. Under subsection (C), individuals who are "regarded as" having a disability are disabled within the meaning of the ADA. See § 12102(2)(C). Subsection (C) provides that having a disability includes "being regarded as having," § 12102(2)(C), "a physical or mental impairment that substantially limits one or more of the major life activities of such individual," § 12102(2)(A). There are two apparent ways in which individuals may fall within this statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting. . . . Petitioners do not make the obvious argument that they are regarded due to their impairments as substantially limited in the major life activity of seeing. They contend only that respondent mistakenly believes their physical impairments substantially limit them in the major life activity of working.Sutton, 527 U.S. at 489-90.
Indeed, the ill-advised actions of the EEOC in this case call to mind the words of the United States District Court for the Western District of Michigan in Equal Employment Opportunity Comm'n v. Union Camp Corp.:
This matter is a prime example of an attitude on the part of government agencies, the EEOC in particular, which this Court has viewed with alarm from time to time. Here the charging party cries discrimination and the EEOC, despite an utter lack of evidence, sympathetically files suit, hoping that defendant will surrender rather than go to trial. When, as here, defendant refuses to knuckle under, EEOC goes to a lengthy trial, tries the case poorly, loses, and hopes a lesson has been taught. A better case for an award of attorney's fees could not be made.536 F. Supp. 64, 66 (W.D.Mich. 1982).
C. Calculation of Award
Having determined that defendant is entitled to an award of attorneys' fees in this case, the Court now turns to the amount of the award. In order to determine what fee is reasonable, courts must calculate the so-called "lodestar" figure, "which is arrived at by multiplying `the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate.'" LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763-64 (2d Cir. 1998) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The number of hours expended for use in the lodestar calculation includes "the number of hours claimed by plaintiffs' attorneys that are supported by time records, that are not excessive or duplicative, and that do not reflect work done only in connection with unrelated claims upon which plaintiffs did not succeed." Id. at 764. Moreover, the hourly rate to be used should be "in line with those [rates] prevailing in the community for similar services of lawyers of reasonably comparable skills, experience, and reputation." Cruz v. Local Union No. 3 of the Int'l Bhd. Of Elec. Workers, 34 F.3d 1148, 1159 (2d Cir. 1994) (citations omitted).
In the present case, EEOC, does not dispute the number of fee hours claimed by Hunt's attorneys, nor does the Court as they seem reasonable in light of the length of discovery, the large number of claimants and the complexity of motion practice in this case. EEOC does, however, contend that the rates set forth in defense counsel's application — most of which are in excess of $200.00 per hour — are too high and should be adjusted according to the accepted practice of courts in this district. With this the Court agrees. Thus, as to compensable rates, the following are reasonable in light of the prevailing hourly rates generally applied in this district: $175.00 for civil rights attorneys with significant experience and numerous years of practice; $125.00 for associates with a reasonable amount of experience; $100.00 for newly admitted attorneys; and $65.00 for paralegals. See Sheet Metal Div. Of Capitol Dist. Sheet Metal, Roofing Air Conditioning Contractors Ass'n, Inc. v. Local Union 38 of the Sheet Metal Workers Int'l Ass'n, 63 F. Supp.2d 211, 214-15 (N.D.N.Y. 1999); TM Park Ave. Assoc. v. Pataki, 44 F. Supp.2d 158, 167 (N.D.N.Y. 1999).
Based thereupon, and additionally upon the information provided by defense counsel concerning the experience and participation of the attorneys who performed legal work in this case, partners James M. Hanson, Daniel R. Barney, Laurie T. Baulig , Lynne D. Lidke and Timothy W. Wiseman would generally be entitled to receive a rate of $175.00 per hour whereas experienced associates such as Sylvia F. James could be charged at $125.00 per hour. Because defense counsel has not provided the Court with any information concerning the experience level of the other associates referenced in its billing records — namely, Carla H. Stagnolia, David C. Milne and Karla Cooper-Boggs — the Court cannot assess their compensable rate. Additionally, the paralegals and law clerks who performed work in defense of Hunt herein are entitled to the same rate of $65.00 per hour. See I.B.E.W. Local No. 910 Welfare, Annuity and Pension Funds v. Dexelectrics, Inc., 98 F. Supp.2d 265, 275 (N.D.N Y 2000) ($65.00 per hour is prevailing rate for paralegal work in this district); Hannigan v. Bd. Of. Educ. of the Brunswick Sch. Dist., 1997 WL 10971, at *3 (N.D.N.Y. 1997) (work of paralegals and law clerks is equally compensable under the "lodestar" method at prevailing hourly rate) (citations omitted).
The Court notes, however, that one paralegal referenced in defense counsel's billing records — Cathy L. Watson — was billed at a rate of $60.00 per hour which is lower than the prevailing rate in this district. The Court thus will award Hunt compensation for Ms. Watson's work at the billed rate rather than the prevailing rate.
In regard to the applicable rates, there are two additional matters that must be noted. In the first instance, defense counsel has advised the Court that during the initial billing period in this case — December 1 through December 31, 1999 — the law firm adjusted its customary rates and billed Hunt at a flat-fee rate. However, the total of the "effective rates" listed for each of the four attorneys who performed work during this initial period is $9,675.93. In an attempt to explain, defense counsel states:
Hourly rate reflects attorney's effective, not customary rate. Services performed 12/1/99 through 12/21/99 were rendered under the initial review of the case, which was subject to a $5,000.00 flat- fee rate. Actual fee totals exceeded the customary rate totals by $7,943, which was written off. These totals reflect adjusted fees billed.
From this, it is not clear to the Court whether the firm billed Hunt at a flat fee of $5,000.00 or an "adjusted" flat-fee rate of $9,675.93. Thus the Court denies Hunt's request for reimbursement of this poorly explained amount.
Secondly, counsel's travel time is "generally reimbursed at one-half the prevailing hourly rate." TM Park Ave. Assoc., 44 F. Supp.2d at 169; see also Funk v. FK Supply, Inc., 43 F. Supp.2d 205, 230 (N.D.N.Y. 1999). Review of the billing records submitted herein demonstrates that defense counsel did not adjust the fee application to reflect this. Instead, the attorneys grouped all of their billed hours together, travel time and all, and charged the full hourly rate. "The burden is on [the movant] to demonstrate the reasonableness of the attorney's fees sought." TM Park Ave. Assoc., 44 F. Supp.2d at 170 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). "The Court should not be obligated to scour the voluminous billing records submitted, pull out all time entries related to travel, and make the requisite calculations." Id. Based thereupon, the Court will reduce the following billing entries by 50%:
DATE ATTORNEY HOURS BILLED — 50%
1/5/00 JHH 16.70 8.35
1/5/00 LTB 13.40 6.7
3/16/00 JHH 16.60 8.3
4/17/00 JHH 13.00 6.5
4/20/00 JHH 14.00 7.0
9/5/00 JHH 18.30 9.15
9/5/00 SFJ 10.40 5.25
This will result in reducing Attorney Hanson's hours billed by 39.3, Attorney Baulig's by 6.7, and Attorney James' by 5.25.
Based on the above, the lodestar calculation for attorneys' fees incurred by Hunt between January 2000 and January 2001 in this matter is as follows:
James M. Hanson 488.60 hours x $ 175.00 per hour = $ 85,505.00 Daniel R. Barney 20.70 hours x $175.00 per hour = $ 3,622.50 Laurie T. Baulig 160.70 hours x $175.00 per hour = $ 28,122.50 Lynne D. Lidke 21.50 hours x $175.00 per hour = $ 3,762.50 Timothy W. Wiseman 2.90 hours x $175.00 per hour = $ 507.50 Sylvia F. James 213.25 hours x $125.00 per hour = $ 26,656.25 Law Clerks and Paralegals (other than Cathy L. Watson) 78.60 hours x $65.00 per hour = $ 5,109.00 Cathy L. Watson 16.20 hours x $60.00 per hour = $ 972.00 TOTAL $154,257.25 D. Costs and ExpensesIn addition to attorneys' fees, Hunt seeks reimbursement for out-of-pocket expenses in the amount of $26,125.51. It is well-settled that "`attorneys' fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.'" LeBlanc-Sternberg, 143 F.3d at 763 (quoting United States Football League v. Nat'l Football League, 887 F.2d 408, 416 (2d Cir. 1989)). In LeBlanc-Sternberg, the Second Circuit noted a non-exhaustive list of expenses that are recoverable, including photocopying, travel, telephone costs, and postage. See id. (citations omitted); see also Kuzma v. Internal Revenue Service, 821 F.2d 930, 933-34 (2d Cir. 1987) ("Identifiable, out-of-pocket disbursements for items such as photocopying, travel, and telephone costs are generally taxable . . . and are often distinguished from nonrecoverable routine office overhead, which must normally be absorbed within the attorney's hourly rate."); but see United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 173 (2d Cir. 1996) (computerized research expenses recoverable as part of attorneys' fees, rather than as costs). Based thereupon it is apparent that many of the items claimed by defense counsel herein — with the exception of the claim for the cost of computer research which has already been accounted for as recoverable attorneys' fees — would be compensable expenses pursuant to 42 U.S.C. § 12205. However, EEOC objects to Hunt's claim for these costs because although the claimed expenses appear on defense counsel's billing records, they are not otherwise itemized or explained as being expressly tied to work done on this particular case. Short of conducting a line by line review of the billing entries and attempting to tie expenses to time referenced therein, the Court cannot assess the compensability of the claimed costs. In particular, the Court notes that Hunt claims reimbursement for an expert witness fee, a court reporter, exhibits, a document service, conference room rental, a hearing transcript and a government publication with no explanation of how these expenses are related to this case. In light of these factors, rather than completely disallow Hunt's request for reimbursement of costs and expenses, the Court will reduce the award by 20%.
IV. CONCLUSION
Based on the foregoing is it hereby
ORDERED that defendant's motion for an award of attorneys' fees is GRANTED to the extent that the Court awards Hunt $ 154,257.25 in attorneys' fees and $20,900.40 in litigation expenses for a total award of $175,157.65. The balance of defendant's claim is DENIED.
IT IS SO ORDERED.