Opinion
94-CV-0915E(Sc)
October 2, 2001
MEMORANDUM and ORDER
Ms. Kohlbrenner commenced this action December 14, 1994 alleging that defendant had discriminated against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New York Human Rights Law, N.Y. Exec. Law § 296, and had intentionally and negligently inflicted emotional distress upon her. Plaintiff claimed as her damages "all past salary and normal salary increases, employer paid retirement benefits, vacation days and other benefits, from January 28, 1992 to the date of judgment herein, together with interest", $1,000,000 in compensatory damages, $1,000,000 in punitive damages and reasonable attorney fees, costs and disbursements. Familiarity with the facts is presumed. This Court dismissed plaintiff's claim for intentional and negligent infliction of emotional distress in a Memorandum and Order dated February 11, 1997. In a Memorandum and Order dated August 20, 1998, this Court granted defendant's motion to bifurcate the liability and damages phases of the case.
Kohlbrenner filed an Amended Complaint June 16, 1998 to substitute Mark J. Schlant, Esq., as Trustee in Bankruptcy for Linda Lee Kohlbrenner, as plaintiff pursuant to this Court's June 3, 1998 Memorandum and Order wherein it had been found that Kohlbrenner lacked standing to bring this case because she had filed for bankruptcy and had failed to list the above claims on the schedule of assets with the result that such claims belonged to the bankruptcy estate.
Despite such dismissal of Kohlbrenner's claim for intentional and negligent infliction of emotional distress, she attempted to re-raise it in the Amended Complaint.
Trial was had on plaintiff's discrimination claims from April 17, 2000 to April 25, 2000 and resulted in a jury verdict finding that defendant had discriminated against plaintiff on the basis of her sex in violation of Title VII and the Human Rights Law. The damages phase of the trial was held April 27, 2000 after which the jury found that plaintiff had not proven that she had suffered any damages as a result of defendant's discrimination — other than back or front pay which were to be later determined by this Court — and accordingly awarded her neither compensatory nor punitive damages. In an Memorandum and Order dated November 9, 2000 this Court awarded plaintiff $832.34 in back pay together with $316.64 in prejudgment interest for a total of $1,148.98.
Plaintiff had become totally disabled and unable to work two weeks after her wrongful discharge; accordingly this Court held that her entitlement to front and back pay ended as of that date. See Thornley v. Panton Publishing Inc., 104 R3d 26, 31 (2d Cir. 1997).
Plaintiff filed a motion December 5, 2000 seeking to recover her attorney fees and disbursements as a prevailing plaintiff based upon the jury decision in her favor on liability and this Court's award of two weeks of back pay. Plaintiff seeks $46,493.50 in attorney fees and $2,035.59 in disbursements for a total of $48,529.09. Defendant opposes any award of attorney fees arguing that, while plaintiff is technically a prevailing party she should not be awarded attorney fees because her success was de minimis. Oral argument was had on such motion January 12, 2001 and it has thereafter been before this Court for disposition.
"In any action or proceeding under [Title VII] the court, in its discretion, may allow the prevailing party a reasonable attorney's fee (including expert fees) as part of the costs." 42 U.S.C. § 2000e-5(k). A plaintiff is considered to be prevailing if she "has succeeded on any significant issue in litigation which achieved some of the benefit the parties sought in bringing suit" — i.e., "at a minimum, to be considered a prevailing party within the meaning of [Title VII], the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between [herself] and the defendant." Texas State Teachers Assn. v. Garland School Dist., 489 U.S. 782, 791-792 (1989). Where a plaintiff recovers a monetary judgment, which the defendant is legally obligated to pay, she is a prevailing party — Raishevich v. Foster, 247 F.3d 337, 345 (2d Cir. 2001) — because such "modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money [it] otherwise would not pay." Farrar v. Hobby, 506 U.S. 103, 113 (1992). Therefore, plaintiff is a prevailing party because pursuant to the jury's finding that defendant had discriminated against her, this Court issued a judgment requiring defendant to pay her two weeks of back pay. Defendant does not contest that plaintiff is a prevailing party. Mem. of Law in Opp'n to Pl.'s Req. for Att'y Fees at 8. However,
"This provision is to be construed in the same fashion as all other `prevailing party' fee provisions in federal civil rights laws, and opinions regarding fees in cases decided under sections 1983 and 1988 therefore are authoritative in the Title VII context." Lyte v. Sara Lee Corporation, 950 F.2d 101, 103 (2d Cir. 1991). See also, Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7 (1983).
"[a] plaintiff who has prevailed in the litigation has established only [her] eligibility for, not [her] entitlement to, an award of fees. The district court retains discretion to determine, under all the circumstances, what constitutes a reasonable fee, and in appropriate circumstances the court may conclude that, even though a plaintiff has formally prevailed, no award of attorney fees to that plaintiff would be reasonable." LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir. 1998).
Internal citations and punctuation ommited.
A prevailing plaintiff is only eligible for, as opposed to entitled to, attorney fees because even though a "plaintiff may often succeed in identifying some unlawful practices or conditions, the range of possible success is vast. That the plaintiff is a `prevailing party' therefore may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved." Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). Where a plaintiff
"has achieved 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. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. [T]he most critical factor is the degree of success obtained." Id., at 436.
The attorney fees requested by a prevailing party must be reasonable in relation to the degree of success obtained. Pino v. Locascio, 101 E3d 235, 237-239 (2d Cir. 1996) (reversing district court's award of $50,590.80 to plaintiff who recovered $1 on the basis that "attorney fees and costs are usually not appropriate when a plaintiff recovers only nominal damages"). "Where the damage award is nominal or modest, the injunctive relief has no systematic effect of importance, and no substantial public interest is served, a substantial fee award cannot be justified." Carroll v. Blinken, 105 F.3d 79, 81 (2d Cir. 1997) (noting that had the plaintiff in Pino recovered $2,000 instead of nominal damages, that an award of $50,000 in attorney fees would still not be permissible).
"Where recovery of private damages is the purpose of [a Title VII action], a district court in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought. Such a comparison promotes the court's central responsibility to make the assessment of what is a reasonable fee under the circumstances of the case. Having considered the amount and nature of the damages awarded, the court may lawfully award low fees or no fees without reciting the twelve factors bearing on reasonableness or multiplying the number of hours reasonably expended by a reasonable hourly rate." Farrar, at 114-115 (no attorney fees awarded where plaintiff claimed $17 million and only recovered $1).
Reasonable attorney fees are customarily determined by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate and then making adjustments based upon twelve factors — viz., "(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; (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." Hensley, at 430 n. 3, 433 (internal citations and punctuation omitted).
Internal citations and punctuation omitted.
To determine whether a prevailing plaintiff's recovery was de minimis, such that low attorney fees or no attorney fees should be awarded, courts often apply the three-part test devised by Justice O'Connor in her concurring opinion in Farrar. Sowemimo v. D.A.O.R. Security, Inc., No. 97 CIV 1083 RLC, 2000 WL 890229, 1 (S.D.N.Y. June 30, 2000), aff'd 2001 WL 38267 (2d Cir. Jan. 12, 2001); Adams v. Rivera, 13 F. Supp.2d 550, 552 (S.D.N.Y. 1998); Haywood v. Koehler, 885 F. Supp. 624, 629 (S.D.N.Y. 1995), aff'd 78 F.3d 101 (2d Cir. 1996). These three factors are (1) whether there is "a substantial difference between the judgment recovered and the recovery sought", (2) "the significance of the legal issue on which the plaintiff claims to have prevailed" and (3) whether the victory "accomplished some public goal other than occupying the time and energy of counsel, court, and client." Farrar, at 121-122 (O'Connor, J., concurring).
The first factor to be applied in determining whether a prevailing plaintiff's recovery is de minimis is whether there is a substantial difference between the judgment recovered and the recovery sought. In the present case, there is a substantial difference between the recovery gained and the recovery sought — i.e., plaintiff "asked for a bundle and got a pittance". Farrar, at 120 (O'Connor, J., concurring). Plaintiff claimed $1 million in compensatory damages and the jury awarded her none, plaintiff claimed $1 million in punitive damages and the jury awarded her none and plaintiff claimed $715,340.20 in back and front pay and this Court awarded her $832.34. Put another way, plaintiff requested $2,715,340.20 but only received $832.34 which equates to less than one 3,262.3th of what she had requested. Plaintiff argues that her success was not de minimis, however, because in Title VII cases "compensatory damage awards are often modest and punitive damages are not common." Pl.'s Reply Mem. of Law in Supp. of Mot. for Att'y Fees at 3. Plaintiff accordingly argues that her recovery of $832.34 is not de minimis, citing to Young v. Healey, N0. 92-CV-0801 (NPM), 1999 WL 1281503 (N.D.N.Y Dec. 16, 1999). While plaintiff is correct that therein the court found that a recovery of $50 was not de minimis and awarded attorney fees, what plaintiff fails to disclose is that the plaintiff in Young had sought only $300 in compensatory damages and $300 in punitive damages from the defendant and that such court specifically distinguished that case from Farrar on the basis that plaintiff had "recovered a significant portion of the amount sought. Young, at 2. In the present case, however, the first of Justice O'Connor's factors suggests that plaintiff's recovery is de minimis due to the substantial difference between the judgment she sought and that which she recovered.
The second factor is the significance of the legal issue on which the plaintiff claims to have prevailed. Plaintiff claims that she is entitled to a full award of attorney fees because the jury's verdict on liability established that defendant had intentionally discriminated against her on the basis of her sex. Plaintiff argues that the finding that defendant discriminated against her is more valuable to her than a recovery of $15,000 would have been because such sum would have gone only to her bankruptcy estate to pay her creditors. Reply Mem. of Law in Supp. of Pl.'s Req. for Att'y Fees at 1, 3. This argument is meritless. Preliminarily, plaintiff did not have a claim for a declaratory judgment; she only sought to recover monetary damages. Furthermore,
Defendant's highest settlement offer, which was rejected by plaintiff. Kearney Jan. 5, 2001 Decl. ¶¶ 2-6.
"[i]n all civil litigation, the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces — the payment of damages, or some specific performance, or the termination of some conduct. Redress is sought through the court, but from the defendant." Hewitt v. Helms, 482 U.S. 755, 761 (1987).
The moral satisfaction of knowing that a jury concluded that defendant had discriminated against her does not entitle plaintiff to attorney fees. Hewitt, at 761-762 (court could have found that defendant had violated plaintiff's rights but was nonetheless entitled to qualified immunity). Furthermore, it is not the significance of the legal issue to plaintiff personally, but its significance to the legal community as a whole and, as noted by the Second Circuit Court of Appeals, the "vast majority of civil rights litigation does not result in groundbreaking conclusions of law, and therefore, will only be appropriate candidates for fee awards if a plaintiff recovers some significant measure of damages or other meaningful relief." Pino, at 239. In the present case — as in the vast majority of Title VII cases —, there is no particular significance to the legal issue on which plaintiff prevailed because such did not establish a new theory of liability and the resolution of such has no significance beyond the parties to this case. Accordingly, the second of Justice O'Connor's factors also suggests that plaintiff's recovery is de minimis.
The third factor is whether the victory "accomplished some public goal other than occupying the time and energy of counsel, court, and client." Plaintiff argues that this case did accomplish a public goal because
"[a]fter a lengthy legal process over a six-year period, defendant here was found by a jury to have intentionally discriminated against the plaintiff because of her gender, in violation of both federal and state law. Defendant has not appealed that finding. The impact of a woman obtaining such a verdict in connections with a `man's job' in a blue collar work environment is not limited to this plaintiff or this employer. Indeed, although defendant `sold its plant in Buffalo many years ago', this verdict has been widely discussed among employees at the current Buffalo Weaving and Belting, and beyond." Reply Mem. of Law in Supp. of Pl.'s Req. for Att'y Fees at 1 (emphasis in original).
Plaintiff's attorney argues that the "impact of this case was far greater than its reward to a single plaintiff. Since plaintiff's victory, my firm has received many calls from other Buffalo Weaving and Belting Employees who feel they have been the victims of discrimination as well." Sanders Dec. 5, 2000 Aff. ¶ 14(e). This Court fails to comprehend how this case served any public purpose. As plaintiff acknowledges, defendant sold Buffalo Weaving and Belting many years ago and plaintiff's counsel's unsupported statements regarding the discussion of this case among employees at Buffalo Weaving and Belting and the fact that many of those employees also feel that they have been discriminated against is irrelevant and the statutory period of limitations presumptively expired long ago on any discrimination claims by current employees against defendant. This case neither benefitted anyone other than plaintiff nor was designed to do so from its inception.
The crux of this case was aptly summed up by Judge Rakoff of the Southern District of New York, who stated that
"[plaintiff] sought nearly [$3 million] in compensatory and punitive damages and received only [$832.34 in back pay], an amount that cannot be considered significant on any fair analysis of this case. [Plaintiff] sought no material non-monetary relief, established no legal principle, and no new rule of liability and accomplished no readily discernable public purpose. Indeed, the jury effectively chose not to send a message to [defendant] when it declined to award punitive damages and awarded [no] compensatory damages. In short, this case accomplished essentially nothing other than consuming substantial time, energy, and resources of this Court and the judicial process. To be sure, the public interest in encouraging injured parties to vindicate their civil rights is such that attorneys' fees should sometimes be awarded to prevailing plaintiffs even when damages are very modest. But there is also a public interest in preventing dubious or trivial claims from flooding the federal courts." Adams, at 553.
Internal citations and punctuation omitted.
Plaintiff's recovery is de minimis and accordingly a full award of attorney fees is foreclosed based upon the holding in Farrar. This Court may only award either low or no attorney fees. This Court, in its discretion, finds that plaintiff is entitled to an award of attorney fees because plaintiff recovered substantially more than a nominal award of $1. However the $46,493.50 requested by plaintiff must be greatly reduced to account for her degree of success. See, Carroll at 81 (award of $50,000 in attorney fees impermissible where plaintiff recovers $2,000). The customary contingency fee retainer agreement provides for attorney fees in the amount of one-third of the total recovery. In cases providing for statutory attorney fees where a plaintiff's recovery is technical or de minimis, courts — when they award attorney fees at all — have found one-third of the plaintiff's recovery to be the reasonable attorney fee. Rivera v. T.P. Horton, 7 F. Supp.2d 147, (N.D.N.Y. 1998) (awarding $0.66 in attorney fees where plaintiff recovered $2); McCardle v. Haddad, 131 F.3d 43, 53-55 (1997) (affirming award of $0.33 in attorney fees where plaintiff recovered $1). Therefore plaintiff will be awarded $277.45 in attorney fees, constituting one-third of the back pay awarded by this Court.
Plaintiff also seeks to recover $2,035.59 in costs constituting $783.75 for deposition transcripts, $120 for the filing fee, $13.48 for photo reprints, $314.02 for photocopies, $20 for service of process, $224.64 for trial graphics, $79 for facsimiles, $146.17 for LEXIS-NEXIS, $9.90 for postage, $296 for subpoenas, and $28.63 for travel. Defendant has not addressed such in its Memorandum of Law in Opposition to Plaintiff's Request for Attorney's Fees and defendant's objections to such in its counsels's declaration are meritless and are overruled.
Accordingly, it is hereby ORDERED that plaintiff's motion to recover her attorney fees and disbursements is granted and that plaintiff shall recover from defendant $2,313.04 constituting $277.45 in attorney fees and $2,035.59 in costs.