Summary
noting that Connecticut courts have adopted twelve factors to consider in determining reasonable attorney fees and awarding $42,800 in attorneys' fees for a hostile work environment claim
Summary of this case from Baron v. Maxam North America, Inc.Opinion
No. CV 05 4016120 S
August 6, 2009
MEMORANDUM OF DECISION ON MOTION FOR ATTORNEYS FEES
In this employment discrimination case, the plaintiff, Luis Patino, seeks attorneys fees from the defendant, Birken Manufacturing Co., after prevailing at trial. For the reasons set forth below, the court grants the plaintiff's motion for attorneys fees.
FACTS AND PROCEDURAL HISTORY
The plaintiff, Luis Patino, commenced this action by service of process on the defendant, Birken Mfg. Co. ("Birken"), on August 23, 2005. The present action arises under a complaint that Patino filed with the commission on human rights and opportunities ("the commission") on January 26, 2004, alleging, inter alia, a discriminatory and hostile work environment. The CHRO released this matter from its jurisdiction on May 23, 2005. Patino's initial complaint contained six counts, but he elected to proceed to the jury on only one count.
Prior to initiating the present case against Birken, Patino also brought a whistleblower action at the United States Department of Labor, alleging that he had been wrongfully terminated from Birken after he had reported that Birken was supplying defective or substandard aircraft parts to government defense contractors. Ultimately, Patino prevailed on this claim and was awarded back pay in the amount of $12,922.62 and attorneys fees. Birken has appealed that determination.
In count five of this action, Patino alleged a state whistleblower claim, pursuant to General Statutes § 31-51m. The state whistleblower claim is virtually identical to the federal whistleblower claim. On May 5, 2009, the court granted Birken summary judgment on count five, because Patino elected to pursue his whistleblower claims in a federal forum.
The remaining cause of action in this case was heard before a jury beginning on January 27, 2009. At trial, the jury reasonably could have found the following facts. Patino began working as a machinist at Birken in 1977 and his employment ended on November 8, 2004, when he was fired. (Trial Transcript, January 27, 2009 [Tr.], pp. 3, 18, 90.) Beginning in 1991, some of Patino's co-workers began calling him derogatory names for homosexuals in Spanish such as "pato" and "maricon," and also used slang words about homosexuals in Italian and English such as "pira," "faggot" and "homo." (Tr., pp. 15-16.) He heard these words "very often": "Oh, I would say two, three times a day sometimes. Sometimes I didn't hear anything. I would say five times a week or so." (Tr., p. 22.) The derogatory words were not spoken to Patino directly, but were made in his presence, such as directly behind his back, while he was concentrating on his work. (Tr., pp. 108, 122, 128-29.) Patino is a quiet person who dislikes confrontation, so he did not initially complain about hearing these words. (Tr., p. 22.) Patino was devastated and "overwhelmed by anger and by frustration and the humiliation" because of this harassment. (Tr., p. 23.)
After five or six years of hearing these words, he brought a complaint to his supervisor. (Tr., p. 23.) The supervisor arranged a five-or ten-minute meeting with himself, Patino, the owner of the company, and two of Patino's co-workers, during which the owner said that "bad words" were being said and "they're going to stop." (Tr., pp. 23-24.) The situation improved for a few weeks but then the harassment began again, and Patino again raised the problem with his supervisor. (Tr., p. 25.) The supervisor agreed to transfer one of the co-workers who had harassed Patino to another building, but kept the other co-worker at Patino's facility. (Tr., p. 25.) This move did not solve the problem, as other co-workers "join[ed] in the brouhaha . . ." (Tr., p. 26.)
Patino retained an attorney, who sent a letter to Birken on April 13, 1995. (Tr., p. 28; Pl.'s Exh. 1.) Patino received a reply from Gary Greenberg, who was Birken's vice president and general counsel (Pl's Exh. 2.) suggesting that if Patino was suffering from mental and psychological stress as a result of his workplace, then Patino should be evaluated by a doctor because Patino works with precision instruments. (Tr., pp. 30-31.) Subsequently, Patino continued to suffer similar harassment, which he described as: "Some several guys screaming these words to each other, or going in back of my machine, they were screaming these words." (Tr., p. 32.) Patino recorded what his co-workers were saying in a series of diaries. (Pl.'s Exh. 31-A through 31-E.) The first entry is in 1991 and the last entry is November 5, 2004. (Tr., p. 33.)
Additionally, Patino filed five complaints with the CHRO. (Tr., p. 34.) The first complaint was filed on September 30, 1996. (Tr., p. 36; Pl's Exh. 3.) After a hearing with the CHRO, Patino wrote a letter to Greenberg on September 3, 1997, describing incidents where co-workers had called him derogatory names. (Tr., p. 41; Pl.'s Exh. 4.) Greenberg responded with a letter dated September 9, 1997, which stated that he had completed an investigation of Patino's complaints and found that none of the co-workers accused of harassing Patino knew anything about the alleged occurrences and that none of Patino's named witnesses observed any of the alleged occurrences. (Tr., p. 43; Pl.'s Exh. 8.) Patino and Greenberg exchanged further correspondence regarding the alleged harassment. (Pl's Exh. 6 and 7.) On September 16, 2007, Patino sent Greenberg a letter (Pl's Exh. 8.) stating that he would not describe any more harassment incidents with Birken because it would be "an exercise in futility." (Tr., p. 48.)
Patino and Birken settled the initial CHRO complaint by Birken agreeing to hold a workplace harassment seminar for all of Birken's workers in November 1997. (Tr., pp. 37, 40.) At the seminar, an attorney conducting the seminar stated that if an individual employee was caught making derogatory remarks, the employee could lose his job, be suspended, or even be sued by the company. (Tr., p. 48.) Some of the co-workers who harassed Patino did not attend this seminar, and Patino testified that he continued to be called "pato," "faggot" and "pira" afterwards. (Tr., pp. 38-39.)
Patino filed a second CHRO complaint in 1998. (Tr., p. 48; Pl.s Exh. 9.) Patino withdrew the complaint, however, and wrote a letter to Greenberg on March 20, 1998, explaining his reasons for withdrawing the complaint. (Tr., pp. 50-51; Pl's Exh. 10.) Patino filed a third CHRO complaint in October 7, 1999. (Tr., p. 55; Pl's Exh. 17.) This action did not resolve the problem and Patino continued to write letters to Greenberg complaining of harassment. (Tr., pp. 56-59; Pl.'s Exh. 18 through 23.) Subsequently, Patino filed a fourth CHRO complaint on March 1, 2002 (Pl.'s Exh. 24.) and continued writing letters to Greenberg describing incidents of harassment. (Tr., pp. 66-67; Pl's Exh. 25 through 27.) Patino filed a fifth CHRO complaint in January 2004 (Pl's Exh. 28.) which is the underlying subject of the present action. (Tr., p. 67.)
In the count that went to the jury, Patino alleged that Birken violated General Statutes § 46a-81c by creating "a hostile work environment because of the plaintiff's sexual orientation, failing to take adequate measures to alleviate the harassment or to remedy the hostile work environment after learning of their existence." (Complaint, ¶ 19.) This count further alleged that "[a]s a result of the defendant's conduct, the plaintiff has and will continue to suffer past and future economic, physical and emotional harm." (Complaint, ¶ 20.) For this count, Patino claimed "compensatory economic damages," costs, attorneys fees, interest and "such other further and different relief as to this Court may deem just and equitable."
On February 3, 2009, the jury found in favor of Patino and awarded him $94,500 in non-economic damages. Birken filed a motion to set aside the verdict, a motion for remittitur, and a supporting memoranda of law. These motions were denied on May 15, 2009. Luis Patino v. Birken Manufacturing Co., Superior Court, judicial district of Hartford, Docket No. CV 05 4016120S (May 15, 2009, Prescott, J.) [ 47 Conn. L. Rptr. 879]. The plaintiff now moves for an award of attorneys fees.
DISCUSSION
Pursuant to General Statutes § 46a-104, "[t]he court may grant a complainant in an action brought in accordance with section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorneys fees, and court costs." The defendant does not dispute that the plaintiff, having prevailed at trial, is entitled to some award of attorneys fees.
"An award of attorneys fees is not a matter of right. Whether any award is to be made and the amount thereof lies within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case." (Internal quotation marks omitted.) Bobinski v. Kalinowski, 107 Conn.App. 622, 628, 946 A.2d 283 (2008). The Supreme Court has repeatedly emphasized that this determination is not limited to the number of hours spent on the case times the hourly rate. Andrews v. Gorby, 237 Conn. 12, 24, 675 A.2d 449 (1996). In fact, the Appellate Court recently stated that "[t]he initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate . . . The courts may then adjust this lodestar calculation by other factors." (Internal quotation marks omitted.) Commission on Human Rights Opportunities v. Brookstone Court, LLC, 107 Conn.App. 340, 352, 945 A.2d 548 (2008).
To aid in the determination of reasonable attorney fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Ernst v. Deere Co., 92 Conn.App. 572, 576, 886 A.2d 845 (2005); see also, U.S. Football League v. National Football League, 887 F.2d 408 (2d Cir. 1989) (recognizing that court may consider the Johnson factors when calculating reasonable attorneys fees). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or by the circumstances; (8) the amount of damages or other relief 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. Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 717-19; see also, Conn. Rules of Prof'l 1 Conduct § 1.5a (2008). These factors are not exclusive, and not every factor will necessarily be relevant in a particular case. Krack v. Action Motors Corp., 87 Conn.App. 687, 695, 867 A.2d 86, cert. denied, 273 Conn. 926, 871 A.2d 1031 (2005). Because not all of the factors are particularly relevant in this case, only those that may affect the determination of fees are discussed below.
Although the amount of time and labor required for adequately performing a case is not the only criterion in determining the reasonableness of attorneys fees, it is the best place to start. The plaintiff's attorneys from the law firm Jon L. Schoenhorn Associates, have handled this case for the past several years. In addition to time spent on jury selection, the case involved a four-day trial, and post-trial briefing and argument.
Furthermore, the case involved a novel and difficult legal question. The principal question before the court was whether General Statutes § 46a-81c imposes liability on an employer who fails to prevent its employees from creating a hostile work environment for a co-worker because of his sexual orientation. Prior to this case, no Connecticut court had squarely addressed the question of whether the phrase "terms, conditions or privileges of employment" in § 46a-81c protects employees who are gay and lesbian, or perceived to be gay and lesbian, from a "hostile work environment." As the plaintiff aptly pointed out in his memorandum, pattern jury instructions were not available. Rather, they had to be crafted from sparse case law, further indicating the novelty of the question presented.
"Cases of first impression generally require more time and effort on the attorney's part." Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 718. Counsel, therefore, should be compensated for the challenge. Id. With these considerations in mind, the plaintiff's claim was a novel one that posed a difficult question for plaintiff's counsel and the court, and the court considers such novelty in awarding attorneys fees.
Another relevant factor is Attorney Schoenhorn's considerable experience in civil rights litigation. He has been a member of the Connecticut bar since 1982, and has tried many civil rights cases. Additionally, from 1988-1999, he served as a part-time hearing officer for the Connecticut commission for human rights. He is one of few lawyers nationwide to be dually certified in both Criminal and Civil Trial Advocacy by the National Board of Trial Advocacy.
To determine fees customarily charged in a locality for similar legal services, the court may examine the local market rates. Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 495, 958 A.2d 1195 (2008). The court finds the customary fee in the local area to be approximately $350 per hour for the work of a civil rights attorney with experience similar to Attorney Schoenhorn. The court makes this determination based on the affidavits of Hartford County civil rights attorneys Kathleen Eldergill and Hubert Santos.
Although a customary fee for an attorney with the experience of Attorney Schoenhorn may be approximately $350 per hour, Attorney Schoenhorn lowered his typical rate of $350 per hour to $200 per hour, due to the plaintiff's unemployment and limited income. Given Attorney Schoenhorn's experience and skill, he would have been justified in charging a higher rate than the $200 per hour he charged the plaintiff, but due to the plaintiff's financial circumstances, he did not do so. The fee agreement itself does not indicate that if the plaintiff were to prevail, a higher hourly rate were to be charged. Under these circumstances, the court declines to award an hourly fee commensurate with the fees customarily charged by Attorney Schoenhorn.
After the hearing on the motion for attorneys fees, the plaintiff submitted a letter from Attorney Canning to Patino, from June 21, 2005, five days after Patino had signed the fee agreement. The letter stated that he was being charged a reduced rate of $200 an hour due to his lack of employment, but if he was to prevail in his action against Birken, he would be charged the normal rate of $350 per hour for Attorney Schoenhorn, and $250 per hour for his associates. The court disregards this letter because it contradicts the signed fee agreement. Furthermore, there is no evidence that this letter was ever sent to Patino, or that he accepted its terms.
The court, however, recognizes that the $200 per hour fee, by itself, is not adequate because it fails to account for the difficulty and novelty of this case, the important public policy implications involved, and that "[a court] should not punish an `under-charging civil rights attorney' who offers a discount to their client in a civil rights case. Reiter v. MTA New York City Transit Authority, 457 F.3d 224, 233 (S.D.N.Y. 2006). In light of the circumstances of the case, the court will award the $200 hourly fee for Attorney Schoenhorn but will increase the total award of attorneys fees by a lump sum to account for the issues discussed above.
In regard to the hourly rates of Attorney Canning, Attorney Packman, and Attorney Sorokin, the court concludes that an hourly rate of $150 is appropriate in light of the fact that these attorneys, at the time they performed the work, had only recently passed the bar and had minimal practice experience.
Accordingly, having concluded that an award of reasonable attorneys fees pursuant to General Statutes § 46a-104 is appropriate in this case, and after review of the pertinent factors this court grants the plaintiff's motion for attorneys fees. The submission of the plaintiff properly documents that Attorney Schoenhorn spent 85.7 hours working on the case, Attorney Packman spent 109.8 hours, Attorney Sorokin spent 20.2 hours, and Attorney Canning spent 22.5 hours.
The plaintiff also seeks an award for Attorney Darley and Attorney Levin, who subsequently left Jon L. Schoenhorn Associates. Because there is no sworn affidavit attesting to their experience and time spent on the case, the court will not award attorneys fees for the time of Attorney Darley or Attorney Levin.
Some of the hours documented by counsel will not be awarded by the court. First, the parties have agreed that the plaintiff will not recover any fees for the work done on the state whistleblower retaliation claim. Indeed, such an award would be inappropriate in light of the fact that the plaintiff was represented by separate counsel in the federal case and has been awarded attorneys fees there. Moreover, the court in this case granted summary judgment for Birken on the state whistleblower claims.
In addition, the court will deny without prejudice fees for work done on the pending appeal for this case. A motion for any fees incurred for the appeal may be brought after the appeal is completed.
Lastly, the court will not impose attorneys fees for time the plaintiff spent consulting with amicus curiae. Awarding fees for consulting with amicus curiae would be inappropriate because amicus curiae are friends of the court, and the plaintiff had no right or ability to control their participation or the content of their participation. Therefore, the court reduces Attorney Schoenhorn's hours to 80.2 hours, Attorney Packman to 87.1 hours, Attorney Canning to 21.1 hours, and Attorney Sorokin to 20.2 hours.
To determine the award of attorneys fees, the court will multiply the hours by the reasonable fees. For the associates, the number of hours totals 128.4 hours. This amount, when multiplied by $150 per hour, totals $19,260. The 80.2 hours spent by Attorney Schoenhom, when multiplied by his $200 per hour fee, totals $16,040. The court will also increase the award for Attorney Schoenhorn's fees by $7,500 due to the nature of the case, his experience, and the reasoning behind his reduced rate. Therefore, the total attorneys fees awarded are $42,800.