Summary
In Holness, the court relied on a 1999 publication to value the three categories of emotional distress claims and which valued a significant emotional distress claim between $50,000 and $100,000.
Summary of this case from Lewis v. Am. Sugar Ref., Inc.Opinion
09 CV 2601 (KAM)(RML)
02-13-2012
DONOVAN HOLNESS, Plaintiff, v. NATIONAL MOBILE TELEVISION, INC., and VENUE SERVICES GROUP, Defendants.
REPORT AND RECOMMENDATION
:
On March 21, 2011, the Honorable Kiyo A. Matsumoto, United States District Judge, adopted my report and recommendation granting plaintiff's motion for a default judgment, a discovery period on the issue of damages, and a factual hearing on non-economic damages. (See Order, dated Mar. 21, 2011.) On May 25, 2011, I held a hearing on damages, at which plaintiff Donovan Holness ("plaintiff" or "Holness") testified under oath and submitted two exhibits on his economic damages. On June 20, 2011 and September 16, 2011, plaintiff submitted supplemental documentation regarding his damages. Having throughly reviewed all of plaintiff's submissions, I respectfully recommend that he be awarded $177,541.05 in damages, as well as interest and $6,920.00 in attorney's fees and costs.
BACKGROUND AND FACTS
Plaintiff commenced this employment discrimination action on June 18, 2009, naming as defendants National Mobile Television, Inc. ("National Mobile Television") and its subsidiary Venue Services Group ("VSG") (collectively, "defendants"). (See Complaint, dated June 18, 2009 ("Compl.").) Plaintiff, who is African-American, alleged that defendants discriminated against him on the basis of race and sought recovery under four separate statutes: Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law ("NYSHRL"), the New York City Human Rights Law ("NYCHRL"), and 42 U.S.C. § 1981. Because defendants did not timely answer the complaint, plaintiff moved for a default judgment, a period of third-party discovery on damages, and a factual hearing on non-economic damages. By order dated October 14, 2010, Judge Matsumoto referred the matter to me for a report and recommendation. On January 6, 2011, I recommended that plaintiff's motion be granted in full (see Report and Recommendation, dated Jan. 6, 2011), and on March 21, 2011, Judge Matsumoto adopted my recommendation (see Order, dated Mar. 21, 2011).
Pursuant to defendants' default, plaintiff's well-pleaded allegations have been deemed admitted. The court assumes familiarity with these facts, which are set out in detail in my January 6, 2011 Report and Recommendation. (See Report & Recommendation, dated Jan. 6, 2011, at 1-3.) Briefly, plaintiff, an audio engineer, alleged that defendants discriminated against him on the basis of his race and retaliated against him for having filed lawsuits against his former employer. (See Compl.) In addition to alleging that defendants failed to give him meaningful work commensurate with his education and experience (id. ¶ 17), plaintiff contended that defendants denied him three promotions for which he was qualified (id. ¶¶ 18-20).
Plaintiff has since withdrawn his retaliation claim. (See Memorandum in Support of Motion for Default Judgment, dated Apr. 28, 2010, at 5 n.1.)
Now that liability is established pursuant to the default judgment, plaintiff seeks the following damages: (1) economic damages (including lost wages, overtime, benefits, and front pay), (2) compensatory emotional damages, and (3) punitive damages. He also seeks pre- and post-judgment interest and attorney's fees and costs. On May 25, 2011, I held a hearing on plaintiff's damages, at which plaintiff testified under oath and submitted two exhibits. Following the hearing, he submitted supplemental documentation of his damages.
DISCUSSION
"Victims of employment discrimination are entitled to reasonable damages that would make the plaintiff 'whole for injuries suffered on account of unlawful employment discrimination.'" Moore v. Houlihan's Rest, Inc., No. 07-CV-3129, 2011 WL 2470023, at *4 (E.D.N.Y. May 10, 2011), adopted, 2011 WL 2462194 (E.D.N.Y. June 17, 2011). In a default judgment, the plaintiff need only prove that the "compensation sought relate[s] to the damages that naturally flow from the injuries pleaded." Greyhound Exhibitgroup Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 159 (citation omitted). Plaintiff's testimony at the evidentiary hearing and the documentary evidence that he subsequently submitted provide a basis for assessing his damages and whether they "naturally flow from the injuries pleaded." I will address each type of damages plaintiff seeks in turn.
Although plaintiff alleges that defendants violated federal, state, and local laws, for the purposes of determining damages, I have largely limited discussion to Title VII because "damages recoverable are for the most part . . . similar under the various statutes." Whitten v. Cross Garage Corp., No. 00 Civ. 5333, 2003 WL 21744088, at *3 n.1 (S.D.N.Y. July 9, 2003).
A. Back Pay
Plaintiff first seeks $410,257.38 in back pay (consisting of lost salary, overtime, pension contributions, and annuity contributions). When a defendant has violated Title VII, a court may award back pay, 42 U.S.C. § 2000e-5(g)(1), and such an award "is the rule, not the exception." Carrero v. New York City Housing Auth., 890 F.2d 569, 580 (2d Cir. 1989). As the purpose of a back pay award is to "make persons whole for injuries suffered through past discrimination," Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d Cir. 1996) (citation omitted), the award can consist not only of lost salary, but also lost fringe benefits, see, e.g., Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993) ("[Plaintiff's back pay] award should therefore consist of lost salary, including anticipated raises, and fringe benefits."). Back pay is calculated from the date of the discriminatory practice to the date of judgment. Sands v. Runyon, 28 F.3d 1323, 1327 (2d Cir. 1994).
Back pay is also available under NYSHRL, and NYCHRL. See N.Y. Exec. Law. § 297(4), (9); N.Y.C. Admin. Code § 8-502(a).
Here, plaintiff seeks what he would have earned in salary and fringe benefits in the positions that he was denied on account of his race, less the actual compensation he earned between the time he was denied his first promotion and the end of May 2011. He submitted a spreadsheet reflecting his computations of the differences in salary and compensation for various time periods, and he calculates this total as $410,257.36. (See Plaintiff's Hearing Exhibit 1, filed May 26, 2001 ("Pl.'s Hearing Ex. 1").) According to plaintiff, he prepared the spreadsheet using the salary and compensation rates for each position, as set forth in controlling collective bargaining agreements ("CBAs") between his union and VSG, as well as his own personal observations of overtime postings. (See Transcript of Hearing, dated May 25, 2011 ("Tr."), at 6-19.) In support of his request plaintiff also submitted all three controlling CBAs, which he subpoenaed from his union, and a subpoenaed copy of payroll data for employees of Priority Production Services, LLC ("PPS"), the successor to VSG.
Plaintiff was denied promotions to technical director and crew chief in November 2007 and engineering supervisor in April 2008. (Transcript of Hearing, dated May 25, 2011 ("Tr."), at 7-8; see also Compl. ¶¶ 18, 19.)
Plaintiff seeks the difference in salary and benefits of an engineer with over five years of experience (which he was) and that of (1) a technical director (for the period November 2007 through March 2008) and (2) an engineering supervisor (for the period April 2008 through July 2008). (See Plaintiff's Hearing Exhibit 1, filed May 26, 2001 ("Pl.'s Hearing Ex. 1").) Because plaintiff quit his job at VSG in July 2008 and began a new job working for Metro-North Railroad in August 2008 (see Tr. at 52), he also seeks the difference between his salary at Metro-North and the salary of an engineering supervisor for the period of August 2008 through May 2011. (See Pl.'s Hearing Ex. 1.)
Three CBAs cover the relevant time period: two between VSG and IBEW Local 1212 (the "Union") and one between VSG's successor, Priority Production Services, LLC ("PPS"), and the Union. Plaintiff subpoenaed all three CBAs from the Union and they are attached as exhibits to a letter that plaintiff's attorney, Michael G. O'Neill, Esq., submitted to the court. (See Letter Enclosing Exhibits by Donovan Holness, dated June 20, 2011, Exs. 3 ("2009 CBA"), 4 ("2005 CBA"), 5 ("2008 CBA"). The three CBAs set forth salaries for various positions, including plaintiff's old position (an engineer with more than five years of experience) and the supervisory positions that plaintiff was denied. (See 2005 CBA § 2.05; 2008 CBA § 2.05; 2009 CBA § 2.05.) They also set the pension and annuity contribution rates at a percentage of the employee's base salary. (See 2005 CBA §§ 3.01(A), 4.01(A) (setting the pension rate at 15.5% of the base salary for engineers hired before 1994 and the annuity rate at 2.5% of the base salary for all employees); 2008 CBA §§ 3.01(A), 4.01(A) (same); 2009 CBA §§ 3.01(A), 4.01(A) (setting the pension rate at 17.05% and then $17.36% for engineers hired before 1994 and the annuity rate at 2.5% of the base salary for all employees).)
It is unclear exactly when PPS succeeded VSG, as plaintiff did not mention the succession in his complaint. It appears to have occurred on May 21, 2009, the date that PPS and union representatives executed an Adoption and Assumption Agreement. Plaintiff provided the court with a copy of this agreement; as part of it, PPS agreed to assume responsibility for VSG's United Nations contract and retain all union employees. (Letter Enclosing Exhibits by Donovan Holness, dated June 20, 2006, Ex. 2 ("Adoption & Assumption Agreement"), ¶ 1.)
"In order to recover damages, a claimant must present evidence that provides the finder of fact with a reasonable basis upon which to calculate the amount of damages. . . . [T]he [factfinder] is not allowed to base its award on speculation or guesswork." Sir Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d 1033, 1038 (2d Cir. 1992). Plaintiff's testimony and the CBAs establish that defendants' discrimination caused plaintiff to lose salary, as well as pension and annuity benefits, and provide the court a basis from which to calculate plaintiff's losses in each of these categories of income. However, plaintiff has not provided the court with any authority for awarding him back pay for the period after PPS assumed VSG's United Nations contract. As it would be speculative to conclude that the discriminatory treatment of plaintiff and/or his economic damages would have continued at the same level even after VSG assumed the contract, plaintiff has failed to establish that his purported lost wages from after that time "flow naturally from the injuries pleaded." As a result, plaintiff is entitled to lost salary, as well as pension and annuity benefits only for the period of November 2007 through May 20, 2009, the day before PPS appears to have assumed VSG's contract. However, plaintiff's calculation of these amounts (as reflected in the spreadsheet that he prepared) contains numerous errors. As a result, the court has conducted its own calculations, as reflected below:
In fact, plaintiff failed to mention the succession in either his complaint or his damages submission. The record is thus devoid of evidence that PPS discriminated against plaintiff.
For example, in calculating lost salary, plaintiff used $2,130.82 instead of $2,173.44 as the weekly salary for an engineering supervisor during the period of July 2008 through May 2009. (Compare Pl.'s Hearing Ex. 1 with 2008 CBA § 2.05.)
The court separated the time period in question into increments during which all relevant factors stayed constant.
| Nov 2007-Mar 2008 | SALARY | PENSION (15.5% ofsalary) | ANNUITY (2.5%of salary) |
|---|---|---|---|
| technical director weekly rate (2005 CBA) | $1,778.96 | $27.57 | $44.47 |
| Engineer (5+ years) weekly rate (2005 CBA) | $1,610.00 | $249.55 | $40.25 |
| difference in weekly rate | $168.96 | $26.19 | $4.22 |
| difference in compensation over relevanttime period (5 months) | $3,660.80 | $567.42 | $91.52 |
| Apr 2008-June 2008 | SALARY | PENSION (15.5% ofsalary) | ANNUITY (2.5%of salary) |
|---|---|---|---|
| supervisor weekly rate (2005 CBA) | $2,130.82 | $330.28 | $53.27 |
| Engineer (5+ Years) weekly rate (2005 CBA) | $1,610.00 | $249.55 | $40.25 |
| difference in rate/wk | $520.82 | $80.73 | $13.02 |
| difference over relevant time period (3months) | $6,770.66 | $1,049.45 | $169.27 |
| July 2008 | SALARY | PENSION (15.5% ofsalary) | ANNUITY (2.5%of salary) |
|---|---|---|---|
| supervisor weekly rate (2008 CBA) | $2,173.44 | $336.88 | $54.34 |
| Engineer (5+ Years) weekly rate (2008 CBA) | $1,642.20 | $254.54 | $41.06 |
| difference in rate/wk | $531.24 | $82.34 | $13.28 |
| difference over relevant time period (1month) | $2,302.04 | $356.82 | $57.55 |
| Aug 2008-Dec 2008 | SALARY | PENSION (15.5% ofsalary) | ANNUITY (2.5%of salary) |
|---|---|---|---|
| supervisor weekly rate (2008 CBA) | $2,173.44 | $336.88 | $54.34 |
| New employment weekly rate | $1,000.00 | $0.00 | $0.00 |
| difference in weekly rate | $1,173.44 | $336.88 | $54.34 |
| difference over relevant time period (5months) | $25,424.53 | $7,299.14 | $1,177.28 |
| Jan 2009-May 20, 2009 | SALARY | PENSION (15.5% ofsalary) | ANNUITY (2.5%of salary) |
|---|---|---|---|
| supervisor weekly rate (2008 CBA) | $2,173.44 | $336.88 | $54.34 |
| New employment weekly rate | $1,130.00 | $0.00 | $0.00 |
| difference in weekly rate | $1,043.44 | $336.88 | $54.34 |
| difference over relevant time period (4months, 20 days) | $20,811.63 | $6,719.20 | $1,083.74 |
| SALARY | PENSION | ANNUITY | |
|---|---|---|---|
| TOTALS | $58,969.66 | $15,992.03 | $2,579.36 |
In addition, plaintiff has failed to provide the court with competent evidence from which to calculate his lost overtime with any "reasonable basis." At the hearing, plaintiff testified that the overtime hours in his spreadsheet were "the average overtime hours that [each of the] positions work." (Tr. at 9.) However, he submitted only hearsay evidence of the hours people in each position worked, as he testified that these figures were based on his observations of postings of overtime in the shop area of his workplace. (Id. at 12.) Moreover, the payroll data that plaintiff obtained from PPS does not cover the years that VSG had the contract (see Exhibit Payroll Data by Donovan Holness, dated June 20, 2011) and the average overtime amounts for the years it covers (2009 through 2011) vary significantly by year. As any award of overtime consequently would be based on guesswork, I recommend that the court deny his request for an award of lost overtime.
Therefore, based on the court's calculations, I respectfully recommend that plaintiff be awarded a total of $177,541.05 in back pay for the period of November 2007 through May 20, 2009.
B. Front Pay
Plaintiff also seeks five years of front pay. (Tr. at 43.) "Front pay is awarded at the discretion of a district court where reinstatement is inappropriate and the plaintiff has been unable to find [a comparable] job. The purpose of front pay is to make victims of discrimination whole in cases where the factfinder can reasonably predict that the plaintiff has no reasonable prospect of obtaining comparable alternative employment." Bergerson v. New York State Office of Mental Health, Nos. 10-1040-cv, 10-1247-cv, 2011 WL 2899237, at *6 (2d Cir. July 21, 2011) (internal citations and punctuation omitted). While plaintiff testified credibly at the hearing that his search for comparable employment was unsuccessful, as explained above, he failed to demonstrate that his purported economic damages from the time period after PPS succeeded VSG "flow naturally from the injuries pleaded." As "an award of front pay cannot be unduly speculative[,]" Dunlap-McCuller v. Riese Org., 980 F.2d 153, 159 (2d Cir. 1992) (citation omitted), it would therefore be inappropriate to award front pay.
C. Emotional Damages
Next, plaintiff seeks between $150,000 and $250,000 in non-economic (or compensatory) damages. (Tr. at 44.) 42 U.S.C. § 1981a permits a Title VII claimant to recover compensatory damages to redress "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses . . . ." 42 U.S.C. § 1981a(b)(3). Cases in the Second Circuit involving awards for emotional distress can generally be grouped into three categories of claims: "garden-variety," "significant" and "egregious." Rainone v. Potter, 388 F. Supp. 2d 120, 122 (E.D.N.Y. 2005) (citation omitted). "This approach has been used in damages inquests on default judgments as well as review of jury verdicts." Moore, 2011 WL 2470023 (citing Maker v. Alliance Mort. Banking Corp., No. 06-CV-5073, 2010 WL 3516153, at *2 (E.D.N.Y. Aug. 9, 2010)).
"Although Title VII limits the amount of damages that may be awarded, the NYSHRL and NYCHRL do not. The Title VII damages cap, therefore, does not bar compensatory damages in excess of this cap where [as here] a plaintiff pleads pendant state law claims." Moore, 2011 WL 2470023, at *4 (citations omitted).
"At the lower end of the emotional distress damages spectrum are cases involving 'garden-variety' claims, in which damages ranging from $5,000 to $35,000 are appropriate. Khan v. Hip Centralized Lab. Servs. Inc., No. CV-03-2411, 2008 WL 4283348, at *11 (E.D.N.Y. Sept. 17, 2008) (citing Rainone, 388 F. Supp. 2d at 122). "In such cases, the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury. Id. (citations and internal punctuation omitted). "The middle of the spectrum consists of 'significant' ($50,000 up to $100,000) and 'substantial' emotional distress claims ($100,000). These claims differ from the garden-variety claims in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses." Rainone, 388 F. Supp. 2d at 122-23. Finally, "egregious" emotional distress claims, where courts have upheld awards of over $100,000, "have only been warranted where the discriminatory conduct was outrageous and shocking or where the physical health of plaintiff was significantly affected." Id. at 123 (citation omitted).
In this case, plaintiff seeks between $150,000 and $250,000 in compensatory damages, which is in the range of "egregious" awards. In support of his claim, plaintiff testified at length regarding how his supervisors harassed him and how his emotional and physical health were affected. Not only did plaintiff receive few work assignments despite his experience, but supervisors made discriminatory comments to him such as, "[y]ou're a slave and I'd rather work and be placed in the bathroom than to be working with you." (Tr. at 38.) Plaintiff testified that as a result of this overt discrimination, he found himself withdrawn from his family and "couldn't conversate [sic] with people." (Id. at 25.) He also stated that he has been under the care of a psychologist since 2007; the psychologist has treated him for anxiety, stress, and depression. (Id. at 20.) Plaintiff also testified that at the peak of his distress in early 2008, he had an emotional breakdown with severe physical manifestations (including chest pains) (see id. at 21-24) that his doctor diagnosed as "some sort of an arrhythmia" (id. at 22).
According to plaintiff, his supervisors "treated me differently from everyone else. They removed me from the shop and gave me a corner to sit in." (Tr. at 34.) Plaintiff also stated that his supervisors "brought up situations to make it appear that I was being insubordinate when I wasn't" and "didn't give me work to do[.]" (Id. at 21.)
I find that plaintiff's testimony was credible and his distress rose beyond "garden variety." However, as plaintiff failed to introduce medical documentation or corroborating testimony, and his physical health has not been significantly affected, plaintiff's claim does not belong within the category of "egregious" cases. As it is more properly characterized as "significant," I recommend that plaintiff be awarded $50,000 in compensatory damages. See Hill v. Airborne Freight Corp., 212 F. Supp. 2d 59, 73 (E.D.N.Y. 2002) (collecting cases in which a plaintiff testified about humiliation and stress, without medical corroboration, that resulted in family and/or personal problems, and finding that damages "have generally been awarded in the range of $5,000 to $100,000").
Plaintiff testified that he has been suffering from irritable bowel syndrome since around June 2005 but he offered no medical evidence to link his condition to defendants' discrimination. (Tr. at 27.)
D. Punitive Damages
Plaintiff also seeks $100,000 in punitive damages. (Tr. at 44.) Punitive damages may be awarded for a civil rights claim against a defendant employer where the employer has engaged in intentional discrimination and has done so "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1); see also Tolbert v. Queens College, 242 F.3d 58, 77 (2d Cir. 2001). "Malice and reckless indifference refer to 'the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.'" Farias v. Instructional Sys., Inc., 259 F.3d 91, 101 (2d Cir. 2001) (quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535 (1999)).
In this case, it is reasonable to infer that defendants acted with malice or reckless indifference. Plaintiff testified that he brought his supervisors' discriminatory actions to the attention of VSG management and that they failed to act. (See Tr. at 29-31.) He also testified that he believed VSG knew that race discrimination was against the law "because they had posted in the work place the federal posters and the state posters [about workplace discrimination] where we signed in and signed out." (Id. at 28-29.) Therefore, an award of punitive damages is appropriate here.
Plaintiff requests $100,000 in punitive damages but cites no authorities to justify this amount. Punitive damages "must be reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition." Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir. 1992) (internal citation omitted). Moreover, a punitive damages award should not be "so high as to result in financial ruin to the defendant . . . ." Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 373 (2d Cir. 1988). There has been an extraordinarily wide range of recent punitive damages awards in this circuit, from $300 to over $1 million. See, e.g., Mendez v. Starwood Hotels & Resorts Worldwide, Inc., 746 F. Supp. 2d 575 (S.D.N.Y. 2010) (lowering jury punitive award to $300 for employer's impermissible retaliation against employee for engaging in protected activity); Jowers v. DME Interactive Holdings, Inc., No. 00 Civ. 4753, 2006 WL 1408671 (S.D.N.Y. May 22, 2006) (awarding $5,000 in punitive damages for defendants' discriminatory termination of plaintiff); Greenbaum v. Svenska Handelsbanken, 67 F. Supp. 2d 228 (S.D.N.Y. 1999) (imposing a $1.25 million punitive damages award where defendant had repeatedly refused to promote the plaintiff because of her sex, subjected her to a six-year pattern of discrimination, attempted to hide its adverse actions from plaintiff, and eventually terminated her in retaliation for complaining about discrimination); see also Hill, 212 F. Supp. 2d at 76-77 (collecting cases upholding punitive awards between $10,000 and $1.25 million). Plaintiff has failed to cite any comparable cases awarding $100,000 in punitive damages or to provide the court with information on the number of employees VSG had to help guide the court in its determination of an appropriate punitive award. Given defendants' apparently tenuous financial situation (see Letter Enclosing Exhibits by Donovan Holness, dated June 20, 2006, Ex. 1 ("VSG . . . closed due to financial reasons . . . .")), I find that $100,000 would be an excessive punitive damage award. Instead, $50,000 is a more appropriate amount. I therefore respectfully recommend that plaintiff be awarded $50,000 in punitive damages.
Title VII sets caps on punitive and compensatory damages to reflect the size of the employer whose misconduct is to be punished. See 42 U.S.C. § 1981a(b)(3)(A)-(D). Although the NYCHRL does not contain such a cap, courts in this circuit have found "that the legislative determination to impose a . . . cap on compensatory and punitive damages awards under Title VII reflects that this is a 'suitable' amount 'to support the objectives of deterrence and punishment' of discriminatory conduct." Tse v. UBS Fin. Servs., Inc., 568 F. Supp. 2d 274, 318 (S.D.N.Y. 2008); see also Thomas v. iStar Fin. Inc., 508 F. Supp. 2d 252, 263 (S.D.N.Y. 2007).
E. Interest
Plaintiff also requests interest on his award. (Tr. at 44.) To the extent the damages awarded to the plaintiff represent compensation for lost wages, "it is ordinarily an abuse of discretion not to include pre-judgment interest." Gierlinger v. Gleason, 160 F.3d 858, 873 (2d Cir. 1998) (citation omitted and emphasis in original). An award of pre-judgment interest on plaintiff's back pay award is appropriate here, "because it serves to compensate the plaintiff for loss of the use of money wrongfully withheld [because of defendants' discrimination]." Thomas v. iStar Fin. Inc., 508 F. Supp. 2d 252, 264 (S.D.N.Y. 2007) (citation omitted). Although courts have the discretion to determine the appropriate rate of pre-judgment interest in a back pay award, see McIntosh v. Irving Trust Co., 873 F. Supp. 872, 882 (S.D.N.Y. 1995), where "a judgment is based on violations of both federal and state law, courts in this circuit uniformly have applied a federal interest rate, most commonly based on the average rate of return on one-year Treasury bills ("T-bills") for the relevant time period." Thomas, 508 F. Supp. 2d at 264 (citations omitted); see also Walia v. Vivek Purmasir & Assocs., Inc., 160 F. Supp. 2d 380, 388-89 (E.D.N Y. 2000). As plaintiff's claim arose under both federal and state laws, the appropriate rate of interest "is the federal interest rate based on the average rate of return on one-year Treasury bills for the relevant time period between the time the claim [arose in this case] until the entry of judgment pursuant to 28 U.S.C. § 1961(a)." Thomas, 508 F. Supp. 2d at 264 (citing Levy v. Powell, No. 00 cv 4499, 2005 WL 1719972, at * 3 (E.D.N.Y. July 22, 2005)). I therefore recommend that plaintiff be awarded pre-judgment interest on his backpay award at this rate.
In addition, plaintiffs who prevail on federal civil claims are entitled to post-judgment interest on all money awards. 28 U.S.C. § 1961. Section 1961(a) sets the rate for post-judgment interest at the weekly average one-year constant maturity Treasury yield, as published by the Federal Reserve System for the calendar week preceding the date of judgment. Accordingly, I recommend that plaintiff be granted post-judgment interest on the full judgment amount, as calculated by the Clerk of Court at the rate prescribed by § 1961(a).
F. Attorney's Fees
Finally, plaintiff seeks $8,320 in attorney's fees and $680 in costs. A plaintiff prevailing in a Title VII suit is entitled to recover his attorney's reasonable fees and costs. 42 U.S.C. § 2000e-5(k). Plaintiff has submitted contemporaneous time records in support of his fee request. (See Declaration of Michael G. O'Neill, Esq., dated Sept. 16, 2011 ("O'Neill Decl."), Ex. A.) In calculating a "presumptively reasonable" fee award, the court must first establish a reasonable hourly rate, which is "what a reasonable, paying client would be willing to pay." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 193 (2d Cir. 2008). Reasonable hourly rates are determined by reference to, inter alia, fees in the community in which the action is pending and to the skill and experience of the attorney who worked on the matter. See, e.g., Luciano v. Olsten Corp., 109 F.3d 111, 115-16 (2d Cir. 1997); see also Arbor Hill, 522 F.3d at 190. The party seeking fees then bears the burden of establishing that the number of hours for which it seeks compensation is reasonable. See Cruz v. Local Union No. 3 of the IBEW, 34 F.3d 1148, 1160 (2d Cir. 1994) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).
In the Second Circuit, applications for attorney's fees must be supported by contemporaneous time records specifying relevant dates, time spent, and work done. N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983).
Plaintiff bases his request for $8,320 in attorney's fees on a billing rate of $400 per hour for 20.8 hours of time. (O'Neill Decl. ¶ 6.) Hourly rates approved in recent Eastern District cases have ranged from $200 to $400 per hour for partners at law firms, see Luca v. County of Nassau, 698 F. Supp. 2d 296, 305 (E.D.N.Y. 2010) (noting prevailing Eastern District rates of $300-400 for partners and $200-250 for senior associates); Cho v. Koam Med. Servs. P.C., 524 F. Supp. 2d 202, 207 (E.D.N.Y. 2007) (collecting cases), but the size and caliber of a firm may also be considered when determining a reasonable hourly rate, Cioffi v. New York Cmty. Bank, 465 F. Supp. 2d 202, 219 (E.D.N.Y. 2006) (citations omitted). In this case, given plaintiff counsel's status as an experienced solo practitioner, I recommend that the hourly rate be set at $300 an hour. See Garland v. Cohen & Krassner, No. 08-CV-4626, 2011 WL 6010211, at *11 (E.D.N.Y. Nov. 29, 2011) (awarding fees for an experienced solo practitioner at a rate of $300 an hour); Brown v. Starrett City Assocs., No. 09-CV-3282, 2011 WL 5118438, at *5-6 (E.D.N.Y. Oct. 27, 2011) (same).
Mr. O'Neill has been practicing law since 1980 and states that he has"handled well over 300 employment discrimination cases . . . ." (O'Neill Decl. ¶ 2.) --------
The next question is whether the hours expended by counsel were reasonable in an action of this nature. In short, I find that 20.8 hours on a default employment discrimination case is reasonable. See, e.g., Walia, 160 F. Supp. 2d at 397 (finding thirty-two hours of work on a default employment discrimination to be an appropriate amount of time). I therefore recommend that plaintiff be awarded a total of $6,240 in attorney's fees.
Plaintiff also seeks to recover $680 in costs, consisting of filing fees, process service fees, and messenger service fees. These are reasonable out-of-pocket expenses that are customarily compensable. See, e.g., Kuzma v. I.R.S., 821 F.2d 930, 933-34 (2d Cir. 1987) ("Identifiable, out-of-pocket disbursements for items such as photocopying, travel, and telephone costs are [compensable] . . . ."). I find these expenses reasonable and recommend that they be granted in full.
CONCLUSION
For the reasons stated above, I respectfully recommend that plaintiff be awarded $177,541 .05 in back pay, $50,000 in compensatory damages, and $50,000 in punitive damages. I also recommend that plaintiff be awarded pre-judgment interest on his back pay award, post-judgment interest on his entire award, and $6,920 in attorney's fees and costs. Any objection to this Report and Recommendation must be filed with the Clerk of the Court, with courtesy copies to Judge Matsumoto and to my chambers, within fourteen (14) days. Failure to file objections within the specified time period waives the right to appeal the district court's order. See 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72, 6(a), 6(e). Plaintiff is directed to serve a copy of this Report and Recommendation on defendants.
Respectfully submitted,
/s/_________
ROBERT M. LEVY
United States Magistrate Judge Dated: Brooklyn, New York
February 13, 2012