James v. National Railroad Passenger Corporation

Full title: MICHELE JAMES, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION…

Court: United States District Court, S.D. New York

Date published: Mar 28, 2005

No. 02 Civ. 3915 (RJH) (AJP) (S.D.N.Y. Mar. 28, 2005)

Opinion

No. 02 Civ. 3915 (RJH) (AJP).

March 28, 2005

MEMORANDUM OPINION AND ORDER

RICHARD HOLWELL, District Judge

Plaintiff Michele James ("James") brought this discrimination suit against defendant National Railroad Passenger Corp. ("Amtrak"), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII") and the New York State Human Rights Law, N.Y. Exec. § 290 et seq. ("SHRL"). Beginning on June 16, 2004, and extending over a four-day period, a jury trial was held. On June 24, 2004 the jury found in favor of James on two claims, awarding her $5,000 in back-pay and $35,000 in compensatory damages. Both parties filed post-verdict motions.

James moved for attorney's fees and costs pursuant to Federal Rule of Civil Procedure 54(d) for work performed by her counsel, Broach Stulberg, LLP ("BS"), as well as pre-judgment interest on her back-pay award pursuant to Federal Rule of Civil Procedure 59(e). Amtrak opposed this application, and also moved for (i) judgment as a matter of law pursuant to Rule 50(b); (ii) a new trial pursuant to Rule 59(a); or (iii) remittance of the claims on which plaintiff prevailed.

For the reasons that follow, the Court awards plaintiff $238,638.81 in attorneys' fees and costs, as well as pre-judgment interest on her back-pay award, to be calculated pursuant to 28 U.S.C. § 1961(a). Defendant's motions are denied.

I. Background

Plaintiff worked at Amtrak's "Hunter Yard" site in Newark, New Jersey as a machine operator, where she was the only female member of a 12-person production gang, commonly referred to as a "work gang". (Memo. of Law in Support of Mot. for J. as a Matter of Law or a New Trial, p. 2 ("New Trial Memo.")).¹ Plaintiff's complaint stems entirely from her experience at the Hunter Yard site, where plaintiff alleges that Amtrak violated Title VII and the SHRL in four distinct ways: first, plaintiff maintained that Amtrak intentionally discriminated against her by providing only unisex comfort facilities² at the worksite; second, plaintiff contended that the unisex comfort facilities had a disparate impact on her as a woman; third, plaintiff alleged that she was subjected to sexual harassment and a hostile work environment at Hunter Yard, conditions for which Amtrak was responsible and failed to remedy; and fourth, plaintiff claimed that Amtrak retaliated against her for complaining about the alleged discrimination by transferring her to a less desirable work assignment, suspending her from work, initiating disciplinary proceedings against her, and ultimately terminating her employment. ( See generally, Memo. of Law in Supp. of Pl. Mot. Fees., pp. 1-2 ("Fee Memo")).

1 There was evidence that another woman worked with the gang for two weeks before departing for unknown reasons. (New Trial Memo., p. 4).

2 Throughout this Opinion, the Court will use the term "comfort facilities" to mean bathrooms and changing rooms.

Each of these claims was presented to a jury. At trial, the jury heard evidence that the comfort facilities at Hunter Yard were in a perpetually unsanitary condition, exposed plaintiff to egregious violations of privacy, and were generally "male-dominated." ( See generally, Memo. in Opp. to Def. New Trial Memo., p. 5 "New Trial Opp."). The jury also heard evidence that plaintiff's male co-workers at the Hunter Yard site sexually harassed her, and that plaintiff complained on several occassions to her supervisors about said conduct, as well as about the lack of women's comfort facilities. ( Id., p. 8). At some point after these complaints were lodged, Amtrak initiated disciplinary proceedings against plaintiff. ( Id., p. 9).

The first of those proceedings was commenced on or about June 24, 1998, when Amtrak's police forced informed plaintiff that she was being taken "out of service" for threatening her male co-workers at the Hunter Yard site. At about the same time, a formal notice of action was mailed to plaintiff, and she was suspended with pay. ( Id.).³ Among other things, this first notice accused plaintiff of (i) making unwanted physical contact with certain male co-workers; (ii) urinating in public; and (iii) behaving in an unprofessional manner for refusing to leave the "men's locker room". ( Id., p. 10). Most of the alleged events occurred several weeks prior to the June 24 notice. ( Id.). A hearing was never held on these charges. (Tr., p. 180).

3 There was also evidence that the notice was mailed to several of plaintiff's co-workers, including some who were not mentioned in the charges. ( Id., p. 10).

Plaintiff was informed of a second set of charges by notice dated July 2, 1998. This notice accused plaintiff of falsifying her employment application by not disclosing prior criminal convictions. (New Trial Opp., p. 10.). There was evidence at trial that plaintiff's criminal history had been checked at the time she started, but that it had been "re-checked" on or before July 2, 1998. ( Id.) On July 3, 1998, before plaintiff had received notice of this second more serious charge, Amtrak removed plaintiff from its payroll. ( Id.). Plaintiff was afforded an opportunity to contest this second charge at a hearing conducted on November 23, 1998, although she declined to participate. The hearing officer found that plaintiff falsified her employment application by failing to disclose prior criminal convictions. Thus, plaintiff was officially terminated on December 4, 1998. ( Id., p. 11; New Trial Memo., p. 6).

At some point prior to her official termination, plaintiff secured work outside the railroad industry as an "apprentice for operating engineering". (New Trial Memo., p. 7). According to Amtrak, this was "the very non-railroad work [that plaintiff] had been aiming toward securing" when she first applied with Amtrak. ( Id.). Amtrak describes plaintiff's new employment as generally more lucrative than her job at Hunter Yard, primarily because it paid more. Amtrak endeavored to demonstrate at trial that plaintiff "earned far more" in her new job than "she would have if she had not stopped working for Amtrak," thus suggesting that she was in no worse a position as a result of her termination. ( Id., p. 11).

After hearing this evidence, the jury rendered its verdict on June 24, 2004, finding (i) that Amtrak's failure to provide women's comfort facilities at Hunter Yard had a disparate impact on plaintiff and similarly situated women in violation of Title VII and the SHRL, (ii) that Amtrak retaliated against plaintiff by initiating disciplinary proceedings in response to her complaints, also in violation of Title VII and the SHRL, and (iii) that plaintiff was exposed to a hostile work environment created by a co-worker at the Hunter Yard site. The jury rejected the balance of plaintiff's claims, including her claims (i) that Amtrak's practice of providing unisex comfort facilities constituted intentional discrimination, (ii) that Amtrak was responsible for the hostile work environment at the Hunter Yard site, and (iii) that Amtrak retaliated against plaintiff by suspending her, transferring her to a less desirable worksite, or ultimately terminating her. ( Id., p. 2).

The instant motions followed.

II. Discussion

i. Motion for Judgment as a Matter of Law and Notwithstanding the Jury's Verdict

A. Defendant's Motions

Defendant first moves for a post-verdict judgment pursuant to Fed.R.Civ.P. 50(b), arguing that plaintiff's discriminatory impact and retaliation claims fail as a matter of law. Under Rule 50, district courts are permitted to award a judgment as a matter of law against a party only if "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed.R.Civ.P. 50(a).⁴ The standard for post-verdict judgment as a matter of law is the same as for summary judgment under Fed.R.Civ.P. 56. This Is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998). Thus, "[a] district court must deny a motion for judgment as a matter of law unless, viewed in the light most favorable to the nonmoving party, `the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict'" that could have been reached. Cruz v. Local Union No. Three of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)) (emphasis added). This is a difficult burden to carry.

4 Under Rule 50(a), a Court can enter a judgment as a matter of law following a jury verdict only if a pre-verdict motion is properly renewed. Fed.R.Civ.P. 50(b). In this case, it is undisputed that defendant properly renewed its motion for judgment as a matter of law — both with respect to the impact claim and the retaliation claim — after the jury rendered its verdict. Thus, both claims are now properly before the Court.

a. Disparate Impact Claim

To establish a prima facie case of disparate impact under both Title VII and the SHRL, a plaintiff must demonstrate that a facially neutral employment policy or practice had a disparate impact on a protected class. Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998). In this case, the jury found that Amtrak maintained a facially neutral policy or practice of supplying unisex comfort facilities at its "Hunter Yard" work site in Newark, New Jersey. The jury also found that this practice had a disparate impact on plaintiff and similarly situated female employees, thus establishing the necessary causal relationship.

Defendant first claims that it is entitled to judgment notwithstanding this verdict because no reasonable factfinder could have concluded that it had an affirmative policy or practice with respect to on-site comfort facilities. (New Trial Memo., p. 15). The Court disagrees. The jury could reasonably have found that it was Amtrak's practice to provide only unisex comfort facilities at the Hunter Yard site, simply based on the fact that there were no women's facilities on the site. In any case, where an employee has but one option — as plaintiff did — "no policy or practice" is the functional equivalent of an affirmative policy or practice.

Defendant takes a different position in its reply brief, arguing that if there was in fact a policy or practice, it was facially discriminatory, and therefore subject to analysis only under a discriminatory treatment theory. (Reply Memo. of Law in Further Support of Mot. for J. as a Matter of Law or a New Trial, pp. 2-3 ("New Trial Reply") ("Plaintiff's claims at trial concerned alleged Amtrak practices that were not facially-neutral"). See, e.g., E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1278 (11th Cir. 2000) ("[W]e are aware of no case in which a facially-discriminatory practice has been challenged successfully under a disparate impact theory.") (emphasis in original). Indeed, according to Amtrak, "plaintiff's stated position [at trial] was that Amtrak's practice was discriminatory in both form and substance." (New Trial Reply, p. 3). For this reason, Amtrak claims that "plaintiff's purported disparate impact claim should have been dismissed by this Court as functionally indistinguishable from her disparate treatment claim." ( Id., p. 5).

To be sure, plaintiff's counsel stated in closing remarks that it was "very clear on its face" that the bathroom facilities made available were "discriminatory based on sex." (Tr. at 689-90, 692). Plaintiff also suggested that the comfort facilities were more akin to "men's locker rooms" than a "unisex arrangement." (Tr. at 693). These and other similar statements were obviously an attempt to convince the jury that Amtrak intentionally discriminated against plaintiff in violation of Title VII and the SHRL. But plaintiff was not prevented from arguing in the alternative that — if the jury found the policy to be facially neutral — it had a disparate impact.⁵ This is exactly what plaintiff did. (Tr. at 693) (arguing that even if the policy is facially neutral, it "had a greater burden on women that it did on men.").

5 "Disparate impact claims are concerned with whether employment policies or practices that are neutral on their face and were not intended to discriminate have nevertheless had a disparate effect on the protected group." Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001) (citations omitted).

The question is whether there was evidence to support the jury's conclusions (i) that Amtrak had a facially neutral policy or practice of providing only unisex comfort facilities at the Hunter Yard work-site; and (ii) that the policy or practice had a disparate impact on plaintiff and similarly situated female employees. Having determined, supra, that the jury reasonably concluded that Amtrak had a facially neutral policy, the Court turns to the question of impact. Amtrak argues that plaintiff did not demonstrate any impact on the relevant "protected group," namely, "all similarly-situated female Amtrak employees." (New Trial Memo., p. 15; New Trial Reply, pp. 5-6).

The crux of this argument is that plaintiff's impact claim fails because it is not supported by statistical or medical evidence. Defendants cite a number of cases for the proposition that such evidence "almost always" forms the basis for a prima facie disparate impact showing, the implication being that courts generally reject disparate impact claims in the absence of statistical or medical evidence. See, e.g., Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 111 (2d Cir. 2001) (rejecting disparate impact claims because statistical disparities in work force not causally connected to any hiring policy or practice); Brown v. Coach Stores, Inc., 163 F.3d 706, 712-13 (2d Cir. 1998) (same); Lopez v. Metropolitan Life Ins. Co., 930 F.2d 157, 159-160 (2d Cir. 2001) (same); Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1041 (2d Cir. 1993) (noting that "[t]he evidence in disparate impact cases usually focuses on statistical disparities" and holding that, statistically, plaintiff failed to demonstrate gender disparity with regard to pay increases or promotions) (citations and internal quotation marks omitted)); Rodriguez v. Beechmont Bus Service, Inc., 173 F.Supp.2d 139, 147-48 (S.D.N.Y. 2001) (rejecting disparate impact claim because plaintiff failed to adequately identify a neutral policy that is alleged to have a disproportionate impact on Hispanic employees).

But none of those cases go as far as defendant suggests. In particular, none support the proposition that disparate impact plaintiffs must substantiate their claim with statistical or medical evidence; neither is there any language in Title VII or the SHRL to that effect. At most, then, these cases hold that in some types of disparate impact cases, such as in cases where the impact of the prohibited conduct is diffuse, widespread or otherwise difficult to detect, statistical evidence may be the only available or best means of establishing the alleged impact.

This is not such a case. A jury could have reasonably concluded that any woman needing to use comfort facilities at Hunter Yard would be subject to the same "impact" as was plaintiff, namely: (i) an egregious lack of privacy; (ii) potential disciplinary action for using alternate facilities; and (iii) unsanitary conditions. Although men were certainly subject to these same conditions, the jury could have reasonably concluded that plaintiff and similarly situated women were affected to a greater degree than were men, and not because of mere "personality differences" between the sexes (New Trial Reply, p. 9). As the Seventh Circuit observed in DeClue v. Central Ill. Light Co., 223 F.3d 434 (7^th Cir. 2000), albeit in dicta:

[I]nsofar as absence of restroom facilities deters women (normal women, not merely women who are abnormally sensitive) but not men from seeking or holding a particular type of job, and insofar as those facilities can be made available to the employees without undue burden to the employer, the absence may violate Title VII. We need hardly add that women are not "unreasonable" to be more sensitive about urinating in public than men; it is as neutral a fact about American women, even though it is a social or psychological rather than physical fact, as the fact that women's upper-body strength is on average less than that of men, which has been held in disparate-impact litigation to require changes in job requirements in certain traditionally male job categories.

DeClue, at 436 (citations omitted). Moreover, there was evidence at trial that the Hunter Yard workforce was male dominated, and that women attempting to use the comfort facilities to urinate were faced with feces-covered toilet seats. In light of such evidence, the jury cannot be said to have "speculated" about the disparate impact of Amtrak's comfort facility policy on women, including plaintiff. (New Trial Reply, p. 6).

Other Courts have allowed similar claims to proceed in the absence statistics. In Lynch v. Freeman, 817 F.2d 380, 397-98 (6^th Cir. 1987), the Sixth Circuit allowed a disparate impact claim to proceed in the absence of statistics where the claim involved unsanitary toilet facilities. In reversing the district court, the Lynch court noted that statistics were "not the only avenue available" to prove disparate impact cases. Id., at 398. Defendant attempts to distinguish Lynch on the ground that, unlike in the instant case, there was evidence in Lynch to the effect that women suffered disproportionate harm from unsanitary toilets. That may be true, but it is also the case that the alleged "impact" in Lynch was a "medical" impact involving allegations that women are more susceptible to urinary-tract infections than are men. Here, by contrast, plaintiff alleges that the unisex comfort facilities exposed female employees to egregious violations of privacy in addition to whatever harm arose from the fact that the only available toilets were unsanitary. Indeed, the Seventh Circuit has observed that a disparate impact claim could be based on unsanitary toilet conditions, with no suggestion that statistical or medical evidence would be required to succeed. DeClue, at 436. This Court agrees.

Finally, defendant argues that the impact claim ought to be dismissed as a matter of law because plaintiff sought no equitable relief, such as reinstatement, as a result of the impact, and Title VII provides only equitable remedies for disparate impact violations. See Kolstad v. American Dental Ass'n, 527 U.S. 526, 547-48 (1999). In response, plaintiff concedes that compensatory damages are unavailable under Title VII, but argues that they can be awarded under the SHRL. That is correct. District courts in this circuit have upheld compensatory damages where a federal discrimination claim is brought concurrently with an SHRL claim. Meacham v. Knolls Atomic Power Laboratory, 185 F.Supp.2d 193, 218 (N.D.N.Y. 2002) ("[A]wards of damages for emotional distress are authorized . . . by the [S]HRL."). New York courts also support this conclusion, Thoreson v. Penthouse Intern., Ltd., 179 A.D.2d 29, 34 (N.Y.App.Div. 1^st Dep't 1992) (holding that compensatory but not punitive damages are available under SHRL), as does Section 297(9) of New York's Executive Law, which provides in part: "Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate." N.Y. Exec. Law § 297(9). Thus, the Court finds that plaintiff's compensatory award was both premised on and permitted by the SHRL.⁶

6 The jury's award for $35,000 in compensatory damages was a lump-sum amount for both the discriminatory impact and retaliation claims, as provided in the verdict form approved by the defendant. ( See Verdict Form, attached as Ex. B to Giannetta Aff.).

b. Retaliation Claim

"To establish a prima facie case of retaliation, an employee must show `(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action.'" Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) ( quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995)). The jury found that Amtrak retaliated against plaintiff by "initiating disciplinary proceedings" against her. ( See Verdict Form, attached as Ex. B to Giannetta Aff.). Amtrak now contends that it is entitled to judgment as a matter of law, primarily because the June 24 disciplinary proceeding was never "adjudicated", and therefore cannot constitute an "adverse employment decision."

This argument is premised on a mistaken interpretation of the verdict. As noted, supra, plaintiff was subjected to two disciplinary proceedings. The first was initiated on June 24, 1998, and involved allegations that she threatened co-workers. As a result of this first proceeding, plaintiff was suspended with pay. Approximately one week later, on or about July 2 or 3, 1998, a second disciplinary action was initiated against plaintiff, this time on the ground that she lied in her employment application by not disclosing past criminal convictions. As a result of this second proceeding, plaintiff was removed from Amtrak's payroll. In early December 1998 the second disciplinary action was adjudicated before an Amtrak hearing officer. The officer determined that plaintiff had, in fact, falsified her employment action, and she was officially terminated on December 4, 1998. Thus, plaintiff remained suspended without pay from July 3, 1998 unitl December 4, 1998.

To be sure, the Second Circuit has held that disciplinary proceedings that have been filed but not adjudicated do not constitute an "an employment action disadvantaging the plaintiff". See, e.g., Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir. 1996) (filing of internal union charges did not constitute retaliation because the charges had not yet been adjudicated and if the charges were ultimately dismissed, plaintiff would not have suffered any adverse effect from them); see also Dawson v. County of Westchester, 274 F. Supp.2d 364, 376 (S.D.N.Y. 2003). Similarly, courts have found that anxiety associated with unconsummated disciplinary proceedings is not a "materially adverse change" supporting a retaliation claim. See, e.g., Dawson, 274 F. Supp.2d, n. 12 (citing Jenkins v. Fischer, 2002 WL 205674, at *6 (S.D.N.Y. 2002)).

But, as plaintiff notes, the jury found that Amtrak retaliated by initiating disciplinary "proceedings", in the plural. Fairly understood, this means that the jury's verdict encompassed all disciplinary proceedings; in other words, both the June 24, 1998 and the July 3, 1998 proceeding.⁷ Defendant responds that this is a "tortured interpretation" of the jury's finding, and offers as a competing theory the suggestion that the retaliatory action that formed the basis of the verdict was not the initiation of the proceedings against plaintiff, but was rather the fact that Amtrak didn't "concomitantly initiate formal charges against fellow gang members, based on [plaintiff's] prior complaints against them." (New Trial Reply, p. 11). This is not a compelling interpretation. The jury plainly found that Amtrak retaliated against plaintiff by " initiating disciplinary proceedings" against her. ( See Verdict Form, attached as Ex. B to Giannetta Aff.). There is nothing on the verdict form to suggest that Amtrak retaliated by not initiating proceedings against others.

7 It is undisputed that plaintiff was suspended without pay as a result of the July 3, 1998 notice, which certainly constitutes an "adverse employment decision." See, e.g., Mitchell v. Vanderbilt University, 389 F.3d 177, 182 (6^th Cir. 2004) (noting that "an employee who was suspended without pay . . . suffer[s] an adverse employment action despite subsequently being reinstated with back pay.").

Defendant next contends that because Amtrak was justified in initiating disciplinary proceedings against plaintiff — both on June 24 and July 3 — she was required to show "pretext". As defendant puts it, "[plaintiff had] the obligation to come forward with objective evidence indicating that Amtrak's non-discriminatory reason for commencing disciplinary proceedings was really a pretext for unlawful discrimination." (Memo. for New Trial, p. 21). Plaintiff responds that there was ample evidence in the record from which the jury could have found pretext, including that: (i) the June 24, 1998 charges strained credulity by alleging that plaintiff — the only female member of a 12 person work gang — threatened her male coworkers; (ii) two of the June 24 charges were identical to the complaints plaintiff had made about her co-workers at the Hunter Yard, and were therefore "turned around" on her; (iii) the alleged threatening conduct occurred four to six weeks prior to June 24, but was not complained of until immediately after plaintiff complained of discrimination and harassment; (iv) plaintiff testified that she did not threaten her coworkers and Amtrak failed to produce any evidence that she had, in particular by calling any of several witnesses that would have had knowledge of the alleged threats; (v) the male supervisor to whom plaintiff complained testified that he refused to meet alone with women who complained of harassment, indicating a hostile attitude towards women; (vi) Amtrak "rechecked" plaintiff's criminal record after she complined, the implication being that Amtrak knew of the fact that she omitted past convictions on her job application but only acted upon it when it was convenient to do so; (vii) a hearing was never held on the June 24 charges; and (viii) plaintiff was removed from the payroll before receiving notice of the additional July 3 charges. (New Trial Opp., pp. 26-29). Viewed in the light most favorable to plaintiff, the Court agrees that — taken together — this is sufficient evidence from which a reasonable jury could have found pretext with regard to the initiation of both disciplinary proceedings.

Accordingly, for the reasons just stated, defendant's motion for judgment as a matter of law is denied.

ii. Motion for a New Trial

As an alternative to a judgment as a matter of law, defendant asks the Court to order a new trial based on its own independent review of the evidence. In considering a motion for a new trial pursuant to Rule 59, "a trial judge is free to weigh the evidence himself, and need not view it the light most favorable to the verdict winner." DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998). However, a new trial should be awarded only if the court, upon post-trial review, determines that the verdict was "seriously erroneous" or a "miscarriage of justice". Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 634 (2d Cir. 2002) (internal quotation marks omitted).

Defendant argues that a new trial is warranted because the jury "reached a seriously erroneous result" for the following four reasons: (i) there is no evidence that other female employees were subjected to the conditions that gave rise to plaintiff's claims; (ii) there is "woefully insufficient" evidence that plaintiff suffered any adverse employment action attributable to Amtrak's retaliation, and no evidence of pretext; (iii) the Court mistakenly precluded evidence of plaintiff's criminal history; and (iv) the Court failed to properly order a new trial after a witnesses impermissibly speculated that plaintiff had been harassed at work. ( See generally, New Trial Memo., pp. 22-23).

Defendant's first two arguments are repetitive of those made in support of its motion for a judgment as a matter of law, and are rejected for the reasons discussed, supra. With respect to the third argument, that the Court erroneously excluded evidence of the nature of plaintiff's criminal history, the Court adheres to its initial decision. Defendant was allowed to introduce evidence of the fact that plaintiff had a prior criminal history, which afforded the jury an opportunity to consider the fact that defendant lied on her employment application when considering her credibility. This also permitted the jury to consider whether Amtrak had sufficient grounds to ultimately terminate plaintiff. Nothing more than this was required. As the Court ruled at the time, evidence of the nature of plaintiff's prior criminal history would have been both duplicative and unduly prejudicial, and was therefore properly excluded under Rule 403 of the Federal Rules of Evidence, which states that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403.⁸ Defendant's renewed argument to the contrary is baseless.⁹

8 Among other things, plaintiff has been convicted of prostitution.

9 In particular, the Court rejects the premise of defendant's argument. Typical of defendant's contentions is the statement that there was a "yawning chasm between plaintiff's prior lifestyle and the vulnerable demeanor she tried to present during her direct examination at trial." (New Trial Memo., p. 8). Amtrak now states that it should have been afforded an opportunity to explore that "chasm" on cross-examination. To be sure, the fact of her prior convictions was relevant to plaintiff's credibility; but the Court finds it difficult to imagine how the nature of those convictions might be relevant. For this reason, the Court rejects outright defendant's contention that plaintiff's past convictions somehow made it less likely that she is a "demure" person, or suffered from depression and feelings of helplessness when exposed to conditions and practices that a jury found to violate Title VII and the SHRL. See, e.g., Carr v. Allison Gas Turbine Division, General Motors Corp., 32 F.3d 1007, 1010-1011 (7^th Cir. 1994) (the fact that plaintiff engaged in "crude" and "unladylike" behavior has no bearing on whether plaintiff found sexual harassment "unwelcome"). Indeed, these are precisely the sort of "impermissible" conclusions that Rule 403 is designed to prevent.

Defendant also argues that a new trial is warranted because plaintiff impermissibly testified that La Verne Washington, an Amtrak Employee Assistance Counselor, told her that she had been sexually harassed. This comment was stricken from the record immediately after it was made. (James, Tr. 157). In any case, the statement is clearly not a ground for a new trial, especially given that the Court gave curative instructions to the jury. Defendant challenges the effectiveness of the curative instructions, arguing that "it beggars reality to assume that her statement did not prejudicially affect the jury's consideration of whether there was any bona fides . . . [to any of] plaintiff's claims". (New Trial Memo., p. 24). Defendant also argues that the statement "encouraged [the jury] to give [plaintiff] some modest relief by accepting" the claims upon which she ultimately prevailed. ( Id.).

The Court rejects these arguments. The curative instructions adequately corrected any possible prejudice caused by the statement. In any case, the jury rejected plaintiff's sexual harassment claim, and therefore clearly wasn't directly influenced by the stray comment. The assertion that the comment may have had some indirect effect is entirely speculative. As noted above, there was ample evidence from which the jury could have found discriminatory impact and retaliation.

Under the circumstances, and because the jury's verdict was neither "seriously erroneous" nor a "miscarriage of justice," the Court declines to order a new trial.

iii. Motion to Remit

Finally, Amtrak argues that the jury's damage awards are unsubstantiated by the evidence and therefore moves for remittal. If a district court finds that damages awarded by a jury are excessive, it may grant a defendant's motion for a new trial in whole or limited to damages, or it may grant remittitur by conditioning denial of a defendant's motion for a new trial on a plaintiff's accepting damages in a reduced amount. See Tingley Sys., Inc. v. Norse Sys., Inc., 49 F.3d 93, 96 (2d Cir. 1995). Remittitur is "the process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial." Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328 (2d Cir. 1990) ( quoting Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984)). "It is not among the powers of the . . . court . . . simply to reduce the damages without offering the prevailing party the option of a new trial." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 914-15 (2d Cir. 1997) ( quoting Tingley Sys., Inc., 49 F.3d, at 96).

A district court has "authority to enter a conditional order of remittitur, compelling a plaintiff to choose between reduction of an excessive verdict and a new trial, in at least two distinct kinds of cases: (1) where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken, . . . and (2) more generally, where the award is intrinsically excessive in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error." Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (citations and internal quotation marks omitted).

Amtrak first attacks the $5,000 back-pay award, arguing that plaintiff did not suffer any loss of pay as a result of her disciplinary notice, both because she was initially suspended with pay, and because she obtained higher-paying employment soon after losing her job with Amtrak. The Court disagrees. Plaintiff was suspended, first with pay but ultimately without pay, as a direct consequence of the fact that disciplinary hearings were initiated against her. The jury found those hearings to have been initiated in a retaliatory fashion and awarded back-pay. There was no error in this decision.

With respect to the claim that plaintiff obtained higher-paying employment after being suspended without pay, plaintiff responds that the jury's calculation accurately reflected what plaintiff would have earned had she continued at Amtrak, even considering her new job. The Court agrees. The determination of back-pay need not be made with mathematical exactitude. There was sufficient evidence in the record from which the jury could have arrived at a reasonable estimation of plaintiff's average work-week during her employment at Amtrak. Plaintiff was taken off Amtrak's payroll as of July 3, 1998 and was officially terminated on December 4, 1998, which means that plaintiff was eligible for 22 weeks of backpay. The parties stipulated to the fact that plaintiff's base rate would have been $13.79 per hour over that time period. (Tr., p. 754). Her overtime rate would have been $20.69 per hour, and she testified that she worked an average of 10 hours of overtime per week.¹⁰ Based on these figures, plaintiff would have earned approximately $16,687 had she remained on the job.¹¹ Plaintiff also testified that she earned approximately $11,561 working at her new job during the 22-week eligibility period. The difference is approximately $5,000, which is what the jury awarded in back-pay. The Court finds that there was no error in this decision, and the award is not excessive by any measure.

10 (Tr., p. 151). There is no doubt that overtime compensation is an allowable component of a back-pay award. See, e.g., Maturo v. National Graphics, Inc., 722 F.Supp. 916, 929 (D. Conn 1989) (upholding back-pay award with overtime component.)

11 That calculation is as follows: 22 weeks × 40 regular hours per week = 880 hours of regular pay × $13.79 = $12,135.20. 22 weeks × 10 hours of overtime per week = 220 hours of overtime pay × $20.69 = $4,551.80. Taken together, plaintiff would have earned $16,687 over the 22-week period.

Amtrak also contends that the $35,000 compensatory non-economic damages award should be remitted. Its first argument is that plaintiff is not allowed to recover compensatory damages on her disparate impact claim. That argument fails for the reason discussed, supra, namely that compensatory damages are allowable under the SHRL. Defendant next argues that the only possible non-economic injuries plaintiff could have suffered as a result of defendant's retaliation were "fleeting, common reactions like `humiliation' or not feeling part of her work group." (New Trial Reply, p. 14). According to defendant, such "transient" emotions are not compensable, which renders the $35,000 verdict excessive.

As noted, supra, plaintiff was only eligible for compensatory damages under the SHRL, which means that New York law applies to review of the award. Katt v. City of New York, 151 F.Supp.2d 313, 369 n. 45 (S.D.N.Y. 2001) ("While a court should apply federal law in determining the excessiveness of a damages award on a federal cause of action, it should apply New York law to test damages awards on claims governed by New York law."); Funk v. F K Supply, Inc., 43 F.Supp.2d 205, 226 (N.D.N.Y. 1999) ("Because plaintiffs' compensatory awards were made pursuant to the [S]HRL, I look to New York State law in determining whether the awards are excessive."). In evaluating the excessiveness of an award in a claim governed by New York law, a court should find an award to be "excessive or inadequate" only "if it deviates materially from what would be reasonable compensation." N.Y.C.P.L.R. § 5501(c). In assessing an award, the reviewing court should look to "the duration of a complainant's condition, its severity or consequences, any physical manifestations, and any medical treatment." In re New York City Transit Auth., 573 N.Y.S.2d 49, 55 (1991). "Finally, the reviewing court must determine how the award compares with others awarded for similar injuries and whether it is supported by evidence before the jury." Meacham v. Knolls Atomic Power Laboratory, 381 F.3d 56, 78 (2d Cir. 2004) (citation omitted).

The New York Court of Appeals has held that compensatory damages may be awarded for mental anguish and humiliation and that such "[m]ental injury may be proved by the complainant's own testimony, corroborated by reference to the circumstances of the alleged misconduct." New York City Transit Authority v. New York State Div. of Human Rights, 78 N.Y.2d 207, 216 (1991). In this case, there is ample evidence in the record from which a jury could have concluded that plaintiff suffered significant mental anguish and humiliation. To wit, there was evidence that at the time she was suspended as a result of the disciplinary proceedings, plaintiff was depressed, suffered from weight loss, and began drinking heavily. (Tr. 189, 198). This account was corroborated by a co-worker, plaintiff's treating therapist, and an expert witness, thus distinguishing this case from "garden variety mental anguish cases," where emotional distress "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." Bick v. City of New York, 1998 WL 190283, at *25 (S.D.N.Y. 1998).

Although "New York cases vary widely in the amount of damages awarded for mental anguish," Meacham, 381 F.3d 56, 78, the compensatory damage award in this case cannot be said to "deviate materially" from awards in similar cases. See, e.g., Bick, 1998 WL 190283 (awarding $100,000 to plaintiff who suffered serious anguish over two year period); Ginsberg c. Vahalla Anesthesia Associates, P.C., 1997 WL 669870, at *4 (S.D.N.Y. 1997) (awarding $100,000 where plaintiff saw a psychiatrist and took an antidepressant for one year); Anderson v. YARP Restaurant, Inc., 1997 WL 27043, at *8 (S.D.N.Y. 1997) (upholding award of $65,000 where plaintiff and therapist testified concerning plaintiff's emotional trauma); Allender v. Mercado, 233 A.D.2d 153, 153 (N.Y.App.Div. 1st Dep't 1996) (upholding award of $100,000 for mental anguish in employment discrimination suit); Boutique Indus., Inc. v. New York State Div. of Human Rights, 228 A.D.2d 171, 171 (N.Y.App.Div. 1st Dep't 1996) (reducing award of $150,000 to $100,000 in age discrimination suit); Sanderson v. City of New York, 1998 WL 187834, at *10 (S.D.N.Y. 1998) (reducing award of $450,000 to $100,000 in age discrimination suit for plaintiff who held position of Duty Chief for six or seven months and testified to loss of reputation and "discombobulat[ion]" of his personal life). Accordingly, the Court declines to grant defendant's motion for remittur.¹²

12 The federal standard used to assess the excessiveness of a damage award is whether the award "shocks the conscience." The New York standard is less deferential to the jury's verdict than the federal standard. See Consorti v. Armstrong World Indus., 72 F.3d 1003, 1011 (2nd Cir. 1995). Thus, in this case the Court would reach the same result were it to apply the federal standard. See, e.g., Hamilton v. New York City Comm'n on Human Rights, 199 A.D.2d 223, 606 N.Y.S.2d 166 (N.Y.App.Div. 1st Dep't 1993) ($20,000.00 award for mental anguish is not shocking to one's sense of fairness).

Having declined to grant defendant post-verdict relief, the Court turns to plaintiff's application for attorneys' fees and costs.

B. Plaintiff's Motion for Pre-Judgment Interest and Attorneys' Fees and Costs

Plaintiff seeks attorneys' fees in the amount of $407,251.25, costs in the amount of $31,268.60, and pre-judgment interest on the back-pay award at the rate of 9% per annum. Defendant contests each of plaintiff's requests, which the Court will address seriatim.

i. Attorneys' Fees

Pursuant to 42 U.S.C. § 2000e-5(k), the "prevailing party" in a Title VII action is entitled to litigation costs, including attorneys' fees. See Greenbaum v. Handelsbanken, 998 F.Supp. 301, 303 (S.D.N.Y. 1998). "A plaintiff need not have succeeded on every issue raised in her case, nor even the most crucial one in order to be considered a `prevailing party.'" Sowemimo v. D.A.O.R. Sec., Inc., 2000 WL 890229, at *1 (S.D.N.Y. 2000) ( citing Larouche v. Kezer, 20 F.3d 68, 71 (2d Cir. 1994)). "Rather, a plaintiff is treated as a prevailing party when the judgment entered on her case `material[ly] alter[s] . . . the legal relationship of the parties.'" Id. (internal citations omitted).

Defendant first contends that plaintiff is not a prevailing party because her award was de minimus, (Fee Opp., p. 6). In Farrar v. Hobby, 506 U.S. 103, 114 (1992), the Supreme Court indicated that the amount of attorneys' fees a plaintiff is awarded turns on the degree of success the plaintiff has obtained, and therefore observed that an award of attorneys' fees may not be justified when a plaintiff's success is de minimis or "technical" in nature. Success is considered de minimus when (i) there is a substantial difference between the damages sought and those awarded, (ii) the legal issue on which plaintiff prevails is relatively unimportant and (iii) the litigation served no public purpose. Farrar, 506 U.S. at 121-22. Defendant argues that the "most critical" factor in this tripartite test is the degree of overall success, and maintains that plaintiff's success was "extremely modest at best" in this case given that the jury rejected her "principal claims of disparate treatment and hostile work environment," and accepted her retaliation claim only on limited grounds while completely rejecting her claim for punitive damages. (Memo. of Law in Opp. to Pl. Mot. for Fees, p. 14 ("Fee Opp.").

Plaintiff sought damages of $2,000,000 in this action. To be sure, her award of $40,000 falls far short of this amount; indeed, as defendant notes, it is "less than two percent" of the original demand. (Fee Opp., p. 7). But this does not justify denying plaintiff attorneys' fees. For one, the legal issues on which plaintiff prevailed — retaliation and disparate impact — were not "relatively unimportant" when considered beside the issues on which she lost — sexual harassment, disparate treatment, and hostile work environment. To the contrary, both are well-recognized and longstanding means of recovery under both Title VII and the SHRL. Moreover, the Court finds that plaintiff's case "served a public purpose", namely, alerting Amtrak and other employers that separate comfort facilities may be required on all work sites, and reaffirming the simple principle that an employer cannot retaliate against an employee merely because it is frustrated by the employee's demand for a neutral, non-hostile work environment. For both of these reasons, the Court concludes that plaintiff was a prevailing party. Myree v. Local 41, Intern. Broth. of Elec. Workers, 847 F. Supp. 1059 (W.D.N.Y. 1994), aff'd without opinion, 29 F.3d 620 (2d Cir. 1994) (plaintiff was a prevailing party in Title VII race discrimination action because his suit required the defendant labor union to alter its behavior in a way that directly benefited the plaintiff and altered the legal relationship between the parties, although he was unsuccessful on some theories of discrimination, and although he was not awarded backpay or compensatory or punitive damages).

Having reached that conclusion, the Court turns to the specifics of the fee application. In Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983), the Supreme Court set forth a practical approach to evaluate requests for attorneys' fees and costs:

Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally, this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit . . . Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.

Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983) (citation omitted). Generally speaking, district courts are given broad discretion to grant, deny or modify a fee application. Id. at 437; Luciano v. Olsten Corporation, 109 F.3d 111, 115 (2d Cir. 1997). That analysis begins by calculating a so-called "lodestar amount," which is simply "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433-34; see also Quaratino v. Tiffany Co., 166 F.3d 422, 425 (2d Cir. 1999) ( en banc).

a. Hours

From May 30, 2002 until July 31, 2004, plaintiff claims to have spent a total of 1,279.55 hours of legal service in prosecuting this case, broken down as follows: 263.75 partner hours, 925.70 senior associate hours, 30.70 junior associate hours, and 59.4 paralegal hours. From July 31, 2004 until September 15, 2004, plaintiff claims to have spent an additional 190.7 hours responding to defendant's post-verdict motions, as well as preparing the instant application for attorneys' fees and costs. These latter hours consist of 49.9 partner hours, 129 associate hours, and 11.8 paralegal hours. Plaintiff has submitted time sheets to support its claim to 1470.25 total hours.

In calculating the number of "reasonable hours" exerted in any particular case, the Court must "look to its own familiarity with the case . . . and its experience generally as well as to the evidentiary submissions and arguments of the parties." Clark v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992). This process begins by analyzing the nature of the billing records submitted, with particular focus on the clarity of the entries. Sowemimo v. D.A.O.R. Sec., Inc., 2000 WL 890229, at *4 (S.D.N.Y. 2000). A party seeking fees bears the burden of supporting its claim of hours expended by accurate, contemporaneous time records. See New York State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983).

In particular, the Second Circuit requires that any attorney who applies for court-ordered compensation in this Circuit should "specify, for each attorney, the date, the hours expended, and the nature of the work done." New York State Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147 (2d Cir. 1983). Such clarity is essential to ensure that opposing parties are not prejudiced by sloppy record keeping; for that reason, when "there are numerous entries . . . [that are too vague]," Broome v. Biondi, 1997 WL 691427, at *3 (S.D.N.Y. 1997), courts frequently reduce fees across the board. See, e.g., Parrish v. Sollecito, 280 F. Supp.2d 145, 171 (S.D.N.Y. 20003) (reducing fee application 15 percent because time entries were vague). Time records need not be overly detailed, but must be sufficiently specific so that the Court may assess the reasonableness of time expended in relation to the work performed. See United States Football League v. National Football League, 887 F.2d 408 (2d Cir. 1989); Dailey v. Societe Generale, 915 F.Supp. 1315, 1328 (S.D.N.Y. 1996).

Starting from the proposition that a "reasonable" number of hours should be determined with reference to this Court's "familiarity" with the proceedings, Clark, at 1153, defendant argues that plaintiff's total time should be measured against the time spent by its counsel, which it contends was 65% of what plaintiff claims. (Fee Opp., p. 12). Although by no means a perfect proxy, the time billed by defendant's counsel is certainly a rough measure of what was "reasonable" in this case, even taking into account that plaintiff had the ultimate burden of persuasion. See, e.g., Shaw v. AAA Engineering Drafting, Inc., 213 F.3d 538, 543 (10^th Cir. 2000) ("Evidence of the hours expended by opposing counsel may be helpful in determining whether time expended on a case was reasonable, but the opponent's time is not an immutable yardstick of reasonableness.") (citations and quotation marks omitted); Taylor v. Scarborough, 66 F.2d 589, 591 (2d Cir. 1933) (in attorney's suit for lien for services rendered, opposing counsel's fees were persuasive though not conclusive); but see Peterson v. Foote 1995 WL 118173, at *3 (N.D.N.Y. 1995) ("[T]he court is not persuaded that attorney Walsh's hours should be reduced simply because opposing counsel expended far less time on similar work than did he"). In this same regard, the Court notes that defendant required only one lawyer to present its case to the jury, while plaintiff generally had two lawyers in the Courtroom. Again, although such comparisons are relevant, they are not controlling or otherwise outcome determinative of the question of what was "reasonable" in this case. Accordingly, the Court will consider defendant's other arguments before reaching a conclusion on this issue.

Setting aside the comparisons discussed above, defendant still contends that plaintiff's hourly total is unreasonably high. Specifically, defendant argues that it contains redundant or otherwise unnecessary hours, is based upon impermissibly vague time entries, includes hours spent on administrative tasks, and includes hours incurred prior to May 2002 that are not "clearly and directly related" to this case. (Fee Opp., pp. 11-12; Giannetta Decl. in Opp. to Fees, Ex. A). The Court has reviewed the time sheets, and finds that, in many respects, they are insufficiently detailed. For example, no fewer than 75 entries describe the nature of the work done simply as a "conference." (Ex. A to Giannetta Decl., pp. 1-4). See, e.g., Schruefer v. Winthorpe Grant, Inc., 2003 WL 21511157, at *3 (S.D.N.Y. 2003) (10% reduction for imprecise and vague time entries such as "various phone conferences," "review file," "legal research," and "case administration"); N.S.N. Int'l Indus. N.V. v. E.I. DuPont de Nemours Co., 1996 WL 154182, at *4 (S.D.N.Y. 1996) (15% reduction for attorney conferences and vagueness of billing entries); General Elec. Co. v. Compagnie Euralair, S.A., 1997 WL 397627, at *4-*6 (S.D.N.Y. 1997) ("Based on all of these factors — inadequate proof of the reasonableness of the hourly rate charged, over-staffing, excessive `office conference' time, and excessive hours spent on certain tasks — the Court believes an across-the-board 50% reduction is appropriate."). In addition, several time entries are "blocked", involve arguably ministerial tasks, or appear tangentially related — at best — to plaintiff's case. ( See generally Ex. A to Giannetta Aff.)

Having undertaken "a conscientious and detailed inquiry into the validity of the representation that a certain number of hours were usefully and reasonably expended," Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994), and in light of the above factors, the Court finds that 1,470.25 hours was not "reasonable" in this case. In reaching this conclusion, the Court does not rely on any particular "deficiency" in plaintiff's application, and will therefore not engage in a line-by-line adjustment to the total. Rather, the Court will exercise its discretion to "deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application." Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998). Having considered defendant's arguments, and also in light of the Court's familiarity with the proceedings, a 20% across-the-board reduction will be applied to plaintiff's application for 1,470.25 hours of time. See id., (finding that district court did not abuse its discretion by implementing 20% across-the-board adjustment for vagueness, inconsistencies, and other deficiencies in the billing records); Sowemimo, 2000 WL 890229, at *4 ("To insure that defendants are not penalized for plaintiff's counsel's inadequate recordkeeping or the time plaintiff's counsel wasted on extraneous tasks, the court takes a 20% across the board reduction in the number of hours requested in the fee application.").

b. Rates

Plaintiff requests that Court award fees at the rates of $425.00 per hour for work performed by partners, $250.00 per hour for work performed by senior associates, $175.00 per hour for work performed by junior associates, and $75.00 per hour for paralegals. Defendant does not contest the fee requested for paralegal work, but argues that the balance of the requested fees are not reasonable. Reasonable fees should be "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984); Cruz v. Local Union No. 3, 34 F.3d 1148, 1159 (2d Cir. 1994). The party seeking a fee award bears the burden of producing evidence demonstrating that the requested rates are in line with those prevailing in the community. See Wilder v. Bernstein, 975 F.Supp. 276, 281 (S.D.N.Y. 1997). The court may also look to attorney's fees granted in other cases and rely on its own knowledge of the market to determine a reasonable rate. Blum, 465 U.S. at 895. A reasonable attorney's fee is "adequate to attract competent counsel" without resulting in "windfalls to attorneys." Id. at 897; see also Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 96 (2d Cir. 1997). Generally, the relevant community for determining a reasonable hourly rate is the district in which the case was brought. See Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d Cir. 1997); In re Agent Orange Product Liabililty Litigation, 818 F.2d 226, 232 (2d Cir. 1987).

Defendant attacks the suggested hourly rates on several grounds, including because plaintiff's counsel (i) do not say what standard rates are for clients, (ii) do not indicate what specific fee arrangement in this case was, (iii) do not offer the affidavit of a third party familiar with fees charged by firms of similar size specializing in employment discrimination cases, and (iv) do not say whether attorneys that worked on this case had ever tried an employment discrimination claim to verdict. (Fee Opp., p. 8).

Both parties agree that Judge Leisure's decision in I.L.G.W.U. Nat'l Retirement Fund v. WSI Group, Inc., 2003 WL 135797, at *3 and n. 8 (S.D.N.Y. 2003) has some bearing on the issue of reasonable rates in this case. In I.L.G.W.U., Broach Stulberg, LLP successfully represented plaintiff in an ERISA action for which over $2,000,000 in damages was recovered. As in this case, the I.L.G.W.U. plaintiffs sought reimbursement for attorneys' fees and costs, proposing that their attorneys be compensated at the following rates: $400 for partners, $250 for associates, and $100 for paralegals. Judge Leisure wasn't convinced. After noting that plaintiffs failed to produce evidence demonstrating that the requested rates were in line with those prevailing in the community, the court held that the rates were entitled to "no weight," I.L.G.W.U., at *4, and proceeded to set the rate by reference to similar cases, finally arriving at a rate of $350 for BP partners, $150 for associates, and $75 for paralegals.

Relying on I.L.G.W.U., defendant suggests that the rates found by Judge Leisure to be reasonable should not be exceeded here. Defendant also cites a series of cases finding rates in that range to be reasonable. Not surprisingly, plaintiff disagrees, contending that the rates set forth in I.L.G.W.U. are the minimum that should be awarded here, both because courts award attorneys' fees at higher rates in Title VII actions than they do in ERISA actions, and because I.L.G.W.U. was decided on summary judgment, and therefore "did not involve any of the complexities and skill involved in trial practice that were required in the instant case." (Reply Memo. of Law in Supp. of Pl. Mot. Fees, p. 3).

Having considered the cases cited by the parties, as well as the nature of the instant case and counsel's role therein, the Court finds that the better view is that "reasonable" rates in this case should not exceed the rates set forth in I.L.G.W.U. Although I.L.G.W.U. was decided on summary judgment, the case "involved complicated issues of ownership and control of various companies that required extensive factual research," I.L.G.W.U., at *2, which, at a minimum, puts it on par with the complexity of this case, even considering that this case went to trial. Further, the Court has not found — and plaintiff does not cite — any cases to support the proposition that attorneys' fees are awarded at lower rates in ERISA cases than in Title VII cases.¹³ To the contrary, it appears that plaintiff has selectively cited a handful of ERISA cases in which the awarded rate happened to be lower than the rate awarded in a handpicked group of Title VII cases.

13 Neither does it appear that the operative ERISA fee shifting statute, 29 U.S.C. § 1132(g), contemplates lower rates than does the operative Title VII fee shifting statute, 42 U.S.C. § 2000e-5(k).

Moreover, as in I.L.G.W.U., in this case plaintiff "ha[s] submitted no evidence regarding the prevailing rates in the community," I.L.G.W.U., at *3, and has therefore failed to convince the Court that the requested rates are reasonable. Cf. McDonald v. Pension Plan of NYSA-ILA Pension Trust Fund, 2002 WL 1974054, at *4 (S.D.N.Y. 2002) (stating that attorney submitted billing rate surveys of major New York City firms and affidavits from several ERISA attorneys in an attempt to show a reasonable rate). Neither does plaintiff indicate at what rates it was actually billed in this case, or at what rates its counsel typically bills its time in Title VII cases. In essence, counsel asks the Court to simply adopt the view that $425 per hour is the "market rate" for litigation partners with similar skill, ability, and experience.

The Court declines to do so. Rather, the Court adopts the fee structure set forth by Judge Leisure in I.L.G.W.U. with only slight modification: $350 per hour for partner hours, $175 ( not $150) per hour for associates, regardless of whether they were billed by "senior" or "junior" associates, and $75 per hour for paralegal hours. In reaching this decision, the Court was also influenced by the fact that defendant's firm charges rates that fall significantly below the rates proposed by plaintiff, despite the fact that defendant's firm is both larger than plaintiff's and of a similar character, and is therefore an adequate rate proxy.¹⁴ Moreover, several courts in this district have approved similar rates as reasonable, which suggests that the schedule adequately reflects the local market. See, e.g., Marisol A. ex rel. Forbes v. Giuliani, 111 F.Supp.2d 381, 386 (S.D.N.Y. 2000) (finding that $350 per hour is a reasonable rate for an attorney with more than fifteen years' experience, and collecting similar cases).

14 The size of the firm representing a plaintiff seeking attorney's fees may be considered a factor in determining a reasonable attorney's fee, primarily due to lower overhead costs. See, e.g., Chambless v. Masters, Mates Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d Cir. 1989) (noting that the size of an attorney's firm is relevant in determining the relevant community's "prevailing market rates" and that "smaller firms may be subject to their own prevailing market rate"); Reiter v. Metropolitan Transp. Authority of New York, 2004 WL 2072369, at *7 (S.D.N.Y. 2004).

b. Plaintiff's Success

Defendant also challenges plaintiff's fee application on the ground that plaintiff achieved limited success. Specifically, defendant contends that the fees should be reduced because plaintiff (i) only succeeded on two of her five claims, and was awarded less than 2% of the damages sought; and (2) fails to distinguish the work done on behalf of successful claims from the work done on failed claims. As noted at the outset, the district court has broad discretion in determining the reasonableness of the attorneys fees requested. The Supreme Court has listed twelve factors that district courts should generally consider in making this determination. See Hensley, 461 U.S., at 429-30.¹⁵ Defendant's challenge focuses on the eighth factor — the amount involved and the results obtained. As the Hensley Court noted, "[t]his factor is particularly crucial where a plaintiff is deemed `prevailing' even though he succeeded on only some of his claims for relief." Id. at 434.

15 These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

As the Court explained in Bick v. City of New York, 1998 WL 190283, at *32 (S.D.N.Y. 1998):

The determination whether the lodestar amount should be adjusted when a plaintiff prevails on only some of her claims involves a two-step process. First, the court must exclude hours spent on failed claims found to be independent of the claims on which plaintiff succeeded. Second, if the failed claims are intertwined with successful claims, the court must next consider whether the extent of plaintiff's success was so limited that it would be unreasonable to award the entire balance of the requested fee.

Id. Thus, defendants first argue that the Court should reduce fees attributable to unsuccessful claims because plaintiff in this case has failed to demonstrate that they were "inextricably intertwined" with her successful claims. Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1183 (2d Cir. 1996).

As a general rule, fees may not be recovered for distinct unsuccessful claims. See Hensley, 461 U.S. at 434-35. If, however, the court "determines that the successful and unsuccessful claims are inextricably intertwined and involve a common core of facts or are based on related legal theories, it is not an abuse of discretion for the court to award the entire fee." Reed, 95 F.3d, at 1183 (internal quotations omitted); Sowemimo, 2000 WL 890229, at *5. Defendant acknowledges at the outset "that a successful retaliation claim may be treated as inextricably intertwined with an unsuccessful sexual harassment or similar claim." (Fee Opp., p. 13). There is significant support for that proposition in this circuit. See, e.g, Dominic v. Consolidated Edison Co. of New York, Inc., 822 F.2d 1249, 1259 (2d Cir. 1987) (upholding district court finding that the legal theories underlying discrimination and retaliation claims are "inextricably interwined"); Pinner v. Budget Mortg. Bankers, Ltd., 336 F.Supp.2d 217, 222 (E.D.N.Y.,2004) (finding unsuccessful sexual harassment/hostile work environment claim to be inextricably intertwined with successful retaliation claim); Raniola v. Bratton, 2003 WL 1907865, at *3, n. 5 (S.D.N.Y. 2003) (same); Gonzalez v. Bratton, 147 F.Supp.2d 180, 212 (S.D.N.Y. 2001); Malarkey v. Texaco, Inc., 794 F.Supp. 1237, 1246 (S.D.N.Y. 1992), aff'd., 983 F.2d 1204 (noting that proof of the same events was necessary to establish both discrimination and retaliation claims); Caruso v. Peat, Marwick, Mitchell Co., 779 F.Supp. 332, 334-35 (S.D.N.Y. 1991) (finding that the plaintiff's discrimination and retaliation claims were legally and factually intertwined and thus not "distinct in all respects"); Dallessandro v. Monk, No. 85-8880, 1989 WL 97840, at *4 (S.D.N.Y. Aug. 15, 1989) (holding that the plaintiff's discrimination and retaliation claims "arose from a common core of facts and involve related legal theories").

As defendant notes, to succeed in her retaliation claim, plaintiff had to establish a "good-faith, reasonable belief that the underlying challenged actions of the employer violated the law." (Fee Opp., p. 13). Altman v. Port Authority of New York and New Jersey, 879 F.Supp. 345, 354 (S.D.N.Y. 1995) (stating that much of the evidence for both claims was intertwined and the evidence relating solely to the discrimination claim was "essential to show a reasonable basis for the complaints of age discrimination."). Nonetheless, according to defendant, "plaintiff could have easily supported her successful retaliation claim with a straightforward disparate impact claim — which was predicated simply on the impact of her having to share changing and bathroom facilities with male co-workers." ( Id.). To be sure, this was apparently plaintiff's complaint from the outset, that the changing facilities were inadequate. However, whether or not the retaliation claim "could" have been predicated only on the disparate impact claim, the jury clearly found that Amtrak retaliated against plaintiff "for complaining about sexual discrimination or harassment", thus requiring the plaintiff to establish that her complaints had merit. ( See Verdict Form, attached as Ex. B to Giannetta Aff.). Indeed, although the jury ultimately rejected plaintiff's hostile work environment claim, they did find that plaintiff established that she was subjected to a hostile environment. ( Id.). For these reasons, the Court finds that plaintiff's retaliation and disparate impact claims are inextricably intertwined with the claims on which she did not prevail.

Having reached this conclusion, the next step is to assess the level of success achieved by the plaintiff. See Hensley, 461 U.S. at 434. As noted above, this question is addressed because, "even where plaintiff's unsuccessful and successful claims are interrelated, if a plaintiff achieves only partial or limited success `the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.'" Lilly, 910 F.Supp. at 952 (quoting Hensley, 461 U.S. at 436). See also Farrar, 506 U.S. 103, 113 (1992); Pino v. Locascio, 101 F.3d 235, 237 (2d Cir. 1996).

The jury in this case found that Amtrak retaliated against plaintiff by initiating disciplinary proceedings against her after she complained to her supervisors about conditions at the Hunter Yard. They also found that Amtrak's practice of providing only unisex comfort facilities had a disparate impact on plaintiff and those similarly situated. However, they rejected plaintiff's disparate treatment and hostile work environment claims. As noted above, plaintiff vehemently contended that Amtrak's comfort facility policy was intentionally discriminatory, only arguing disparate impact in the alternative; plaintiff also spent a great deal of time attempting to establish her harassment and hostile work environment claims.

Under the circumstances, and for the reasons set forth above, the Court finds that an across-the-board reduction is warranted under the eighth Hensley factor. To be sure, "[t]here is no precise rule or formula" for adjusting the lodestar to account for limited success. 461 U.S. at 435. As the Supreme Court explained, "[t]he district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment." Id. at 436-37. However, if a plaintiff has obtained "excellent results," the fee award "should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit." Hensley, 461 U.S. at 435.

In this case, the Court finds that plaintiff achieved a relatively modest level of success, especially when her claims are considered in toto and in relation to other cases in which courts have refused to impost across-the-board reductions under Hensley. Cf. Marisol A. v. Giuliani, 111 F.Supp.2d 381, 398 (S.D.N.Y. 2000) (refusing to impose across-the-board reduction for lack of success where plaintiffs' suit resulted in "systemic improvements to the New York City child welfare system"); see also Parrish v. Sollecito, 280 F.Supp.2d 145, 171 (S.D.N.Y. 20003) (reducing lodestar by 10% under "lack of success" factor where plaintiff failed to prevail on harassment/hostile work environment claim); Green v. Torres, 290 F.Supp.2d 427, 431 (S.D.N.Y. 2003) (reducing lodestar by 20% where plaintiff "sought to enlarge the case beyond reasonable bounds by alleging no fewer than nine causes of action against five police officers and wholesale claims against the entirety of the police force."), aff'd 361 F.3d 96 (2d Cir. 2004). Thus, the Court will "award only that amount of fees that is reasonable in relation to the results obtained." Hensley, 461 U.S. at 440. Considering the litigation as a whole, the Court finds that a 15% across-the-board fee reduction is warranted under Hensley. Id., at 440 ("A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole").¹⁶

16 In reaching this conclusion, the Court is cognizant of the fact that attorneys' fees cannot be awarded according to the proportion between damages sought and damages actually recovered. Grant v. Martinez, 973 F.2d 96, 102 (2d Cir. 1992).

c. Lodestar Calculation

Having established both the rate and the total hours to be billed, the Court calculates plaintiff's fee award as follows: (i) 313.65 partner hours × 20% reduction × $350 = $87,822, (ii) 1085.4 associate hours × 20% reduction × $175 per hour = $151,956, and (iii) 71.2 paralegal hours × 20% reduction × $75 per hour = $4272. The total of these figures, or lodestar, is $244,050. Factoring in the 15% reduction, the Court awards plaintiff $207,442.50 in attorneys' fees.

ii. Costs

An attorney's fee award may include costs limited to reasonable out-of-pocket expenses that are incurred and ordinarily charged to fee-paying clients. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 178, 763 (2d Cir. 1998). Plaintiffs seeking to recover costs must submit bills or receipts for claimed expenses, I.L.G.W.U., at *3, which, among other things, may include charges relating to document reproduction, travel, and telephone charges. In this case, plaintiff seeks to recover out-of-pocket expenses incurred during the period July 9, 1998 to September 14, 2004, and to that end has provided the Court with a detailed accounting. ( See Accounting, attached as Ex. F to Stulberg Aff.; see also Ex. B to Reply Decl. of Stulberg). That accounting includes cost entries in the following categories: expert and subpoenaed witness fees, deposition and trial transcript costs, court filing fees, transportation, legal research, messenger services, facsimiles, postage, document reproduction, clerical overtime, telephone charges and other miscellaneous charges. The total of these charges is $31,268.60.

For several reasons, defendant argues that plaintiff's cost award, if any, should be significantly less than that. Defendant first argues that plaintiff's request for more than $4,600 in expenses relating to daily trial transcripts should be denied. (Fee Opp., p. 16). According to defendant, this was a "relatively short, uncomplicated trial during which plaintiff was actively represented by not one but two attorneys at the counsel table." ( Id.). For this reason, defendant argues that "there is no basis to conclude that this considerable trial expense was reasonable," and also contends that plaintiff has not demonstrated that such costs "ordinarily" are charged to clients. The Court disagrees, both because plaintiff needed the trial transcripts to oppose defendant's post-trial motions, and because daily transcripts are appropriate where — as here — a trial involves multiple witnesses.¹⁷

17 It also appears that defendant needed the transcripts to prepare its own post-trial motions; indeed, plaintiff states that defendant requested from BS certain of the transcripts it now contends were unnecessary. (Stulberg Reply Decl., ¶ 26 ("[D]efendant's counsel asked this firm to send her copies of certain trail transcripts that defendant did not order, so that she could use them in preparing defendant's reply papers to plaintiff's opposition.")

Defendant also argues that plaintiff should not be allowed to recover the $72.29 cost of in-court, pre-trial conference transcripts. Although 42 U.S.C. § 2000e-5(k) provides for cost shifting, defendant argues that the statute does not supersede Local Rule 54.1(c)(1), which states that "[t]he cost of a transcript of court proceedings prior to or subsequent to trial is taxable only when authorized in advance or ordered by the court." See Marisol A., 111 F.Supp 2d 381, 401-02 (S.D.N.Y. 2000). The Court agrees. Nothing in § 2000e-5(k) explicitly permits the Court to tax costs associated with such transcripts, nor have plaintiffs cited any case that stands for the proposition that § 2000e-5(k) overrules Rule 54.1(c). Accordingly, under Local Rule 54.1(c)(1), the costs associated with pre-trial transcripts are not taxable to defendants, as plaintiffs did not comply with the mandates of the local rule by seeking advance authorization or an order of the court.

Defendant next argues that plaintiff should not be allowed to recover fees for expert witnesses. Plaintiff has included three receipts for expert fees, $6,600 for fees and services rendered by Dr. Richard G. Dudley in August 2002, $3,150 for services by Dr. Dudley in 2004 (both prior to and during trial), and another $437.50 for services rendered on June 18, 2004 by Penny W. Nash. ( See Ex. G to Stulberg Aff.). According to defendant, all of these fees should be rejected because the accounting offers "previous little information about the specific services performed." Moreover, defendant argues, Dr. Dudley's charges "appear dubious, at best, in light of his trial testimony." In this regard, defendant points out that Dr. Dudley's expert report largely consisted of information relating to plaintiff's "history" and the causation of her injuries, neither of which were subjects he was allowed to testify about at trial. (Giannetta Aff., ¶ 7). Thus, according to defendant, "neither Dr. Dudley nor Ms. Nash "ultimately testified on the issues to which the bulk of their efforts were directed." ( Id.) Even were the Court to credit Dr. Dudley's fees, defendant argues that they are grossly over inflated given his testimony at trial regarding his hourly rate. Moreover, defendants argue that pursuant to Local Civil Rule 54.1(c)(3) expert witness fees "are recoverable only to the extent of fees for ordinary witnesses unless prior court approval is obtained," which was not done in this case. (Fee Opp., p. 17).

The Court is not persuaded. 42 U.S.C. 2000e-5(k) explicitly provides for the recovery of expert witness fees, which can include consultation, trial preparation and trial testimony. Anderson v. YARP Restaurant, Inc., 1997 WL 47785, at *5-*6 (S.D.N.Y. 1997). The language of the statute provides for "a reasonable attorney's fee (including expert fees)," and no distinction is made between fees for an expert's trial preparation and testimony. Nor is there any indication that Congress intended to exclude fees for expert consultations. According to plaintiff, among other things Dr. Dudley "met with plaintiff twice to evaluate her, reviewed documents pertinent to [her] psychiatric condition . . . prepared a nineteen-page expert report based on his evaluation and review, prepared an affidavit in opposition to defendant's motion in limine . . . and testified at trial." In total, Dr. Dudley spent 35.45 hours on plaintiff's case, and billed plaintiff at a rate of $275 per hour, for a total of $9,750. The Court finds the hourly total to be reasonable, and the rate to be in line with rates charged by "recognized experts" in the Second Circuit. See, e.g., Williams v. Secretary of the Navy, 853 F. Supp. 66, 70-71 (E.D.N.Y. 1994) (awarding $275 per hour to a "recognized expert in and leading practitioner of public sector labor law"). For similar reasons, the Court declines to reduce or modify the $437.50 fee application for plaintiff's treating therapist, Pennye Nash.

Defendant's remaining arguments are without merit. Legal research costs are recoverable in an application for attorneys' fees. See United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 173 (2d Cir. 1996) ("[C]omputer research is . . . compensable under an application for attorneys' fees and is not a separately taxable cost."); Anderson v. City of New York, 132 F.Supp.2d 239, 247 (S.D.N.Y. 2001) (recognizing that although costs for computerized research are not taxable pursuant to 28 U.S.C. § 1920, "in this circuit they are considered as part of attorneys' fees, because, in theory, an attorney will complete a research assignment faster with the aid of computerized databases than without such aides."); accord Lawson v. City of New York, 2000 WL 1617014, at *5 (S.D.N.Y. Oct. 26, 2000). Similarly, processor server fees are recoverable where, as here, they are properly documented, see, e.g., Newsome v. McCabe, 2002 WL 1008472, at *11 (N.D.Ill. 2002), as are costs for travel, document duplication, facsimiles, messenger services, and exhibit preparation. Contrary to defendant's contention, these costs are not "hidden profit center[s]", and are typically taxed to prevailing plaintiffs as ordinary litigation costs. (Fee Opp., p. 20).¹⁸ Finally, the Court declines to speculate about the necessity, purpose, or length of depositions at this late stage.¹⁹ The proper time to object to depositions has long since passed.

18 Neither will the Court punish plaintiff's for clerical errors. In a footnote, defendant asks the Court to refuse the $112 "witness fee" for "Penneye W. Walsh" because the name is wrong. Indeed, it appears that a check for $112 was made out to — and deposited by — a Ms. Walsh, when in fact it should have been made out to Ms. Pennye Nash, plaintiff's therapist. (Stulberg Aff., Ex. H).

19 In particular, Amtrak contests an award of costs for two deposition transcripts that were not used at trial nor, it contends, "reasonably necessary" when taken. Costs for a deposition transcript may be recovered even if the transcript was not used at trial, so long as the deposition, at the time it was taken, reasonably appeared necessary for trial preparation. United States Media Corp. v. Edde Entertainment, Inc., 1999 WL 498216, at *9 (S.D.N.Y. 1999). As noted, defendant should have objected at the time the deposition was taken if it was truly unnecessary.

Accordingly, the Court awards plaintiff costs in the amount of $31,196.31.

iii. Pre-Judgment Interest

Plaintiff asks the Court to award pre-judgment interest on her $5,000 back pay award at a rate of 9% per annum. In an action to enforce a federal right, the decision whether to award prejudgment interest and the rate to be applied if such interest is granted, are matters ordinarily left to the discretion of the district court. See Gierlinger v. Gleason, 160 F.3d 858, 874 (2d Cir. 1998); Abou-Khadra v. Mahshie, 4 F.3d 1071, 1084 (2d Cir. 1993); Orshan v. Macchiarola, 629 F.Supp. 1014, 1016-17 (E.D.N.Y. 1986). However, to the extent damages awarded to the plaintiff represent compensation for lost wages, "it is ordinarily an abuse of discretion not to include pre-judgment interest." Gierlinger, 160 F.3d at 874 (quoting Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993)) (emphasis in original); see also Epstein v. Kalvin-Miller Int'l Inc., 139 F.Supp.2d 469, 485 (S.D.N.Y. 2001) (prejudgment interest on award for back pay recoverable under state law claims).

Nonetheless, defendant argues that pre-judgment interest is not warranted in this case because plaintiff left Amtrak for much more lucrative employment. This argument doesn't make sense. The question is not whether her subsequent job paid more, or was otherwise more lucrative, but whether plaintiff lost wages as a result of defendant's wrongful conduct — indeed, this is the definition of back-pay. After hearing extensive testimony on the subject, the jury awarded plaintiff $5,000 in back-pay; in reaching this figure, the jury properly took into account the fact that plaintiff earned money in her new job, which means that they necessarily concluded that plaintiff would have earned more had she remained at Amtrak. Thus, pursuant to Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993), the Court will award pre-judgment interest in this case.

Anticipating this outcome, defendant argues in the alternative that, if pre-judgment interest is awarded, it should be calculated pursuant to 28 U.S.C. § 1961(a), which pegs the rate of interest to the average return of one-year Treasury bills for the relevant time period. Plaintiff disagrees, contending instead that interest should be computed pursuant to § 5001(a) of New York's Civil Practice Law and Rules ("CPLR"), which requires that interest be awarded at the 9% rate set by CPLR § 5004. According to plaintiff, this is the proper outcome because "[t]he Second Circuit has held that, in cases involving both federal and state law claims, state law applies to questions of prejudgment interest on the pendant state law claim." (Fee Memo., p. 4). That may be true, but it assumes that the back-pay award was based on a "pendant state law claim."

Courts in this Circuit considering mixed federal and state law judgments in which back-pay is awarded uniformly apply the rate set forth at 28 U.S.C. § 1961(a). See, e.g., Tuszynski v. Innovative Services, Inc., 2005 WL 221234, at *7 (W.D.N.Y. Jan. 29, 2005) ("The pre-judgment interest on the back pay award will be calculated at the current federal rate in accordance with 28 U.S.C. § 1961(a)"); Collins v. Suffolk County Police Dept., 349 F.Supp.2d 559, 565 (E.D.N.Y. 2004) (awarding pre-judgment interest on back-pay award at rate set by 28 U.S.C. § 1961(a) where plaintiff alleged violations of Title VII and the SHRL); Kuper v. Empire Blue Cross and Blue Shield, 2003 WL 23350111 (S.D.N.Y. 2003) (same, collecting cases). This Court will do the same. Courts calculating prejudgment in accord with section 1961(a) use the average annual rate of return on one-year T-bills between the time the claim arises and the entry of judgment. See, e.g., Yellow Freight System, Inc., 2002 WL 31011859, at *33 ("the average annual Treasury bill rate of interest, referred to at 28 U.S.C. § 1961, for the years 1995 through 2000, will be applied to the back pay award"); Gonzalez v. Bratton, 147 F.Supp.2d 180, 214 (S.D.N.Y.,2001) ("the Court will add prejudgment interest to Gonzalez's award for back pay at the rate of the average of annual interest paid on a one-year United States Treasury bill during each of the past three years."). Again, this Court will do the same.

Thus, plaintiff is awarded pre-judgment interest on her back-pay award, to be calculated at the average annual rate of return on one-year T-bills between the dates of plaintiff's termination and the entry of judgment in this case. Interest shall be calculated as though it had been compounded annually. Saulpaugh, 4 F.3d 134, 145 (2d Cir. 1993) (failure to apply compound rate of interest to back pay award was an abuse of discretion, because compounding interest was the only way to make the plaintiff whole). Within ten days after entry of this Memorandum Opinion and Order, counsel shall report to the Court in writing the total back pay judgment computed in accordance with this opinion so that a final judgment can be entered.

III. Conclusion

For the foregoing reasons, defendant's motions for post-verdict relief [46] are denied, and plaintiff's motions [48] are granted. Plaintiff is awarded attorneys' fees and costs in the amount of $238,638.81, as well as pre-judgment interest on her back-pay award, which shall be calculated pursuant to 28 U.S.C. § 1961(a), as set forth above.

SO ORDERED.