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July 30, 1981

Cathryn Anita SMITH, Plaintiff,

The opinion of the court was delivered by: WARD

Plaintiff Cathryn Anita Smith moves for an order confirming an arbitration award issued in February 1981. The award was issued by a panel of three arbitrators constituted to resolve disputes arising out of the consent decree pursuant to which this action was settled. The arbitrators awarded plaintiff the sum of $ 2,055. Plaintiff also moves for an award of an attorney's fee in the amount of $ 22,562.50. Opposing both of plaintiff's applications, defendant La Cote Basque cross-moves for an award of attorneys' fees in its favor on the ground that plaintiff's instant applications are frivolous. For the reasons that follow, the branch of plaintiff's motion seeking to confirm the arbitration award is granted, the branch of her motion for an award of an attorney's fee is adjourned pending an evidentiary hearing, and defendant's cross-motion for attorneys' fees is denied.


This sex-discrimination action, brought pursuant to Title VII of the Civil Rights Act of 1964 ("the Act"), 42 U.S.C. §§ 2000e-2000e-17, was commenced in May 1976 against defendant La Cote Basque, a number of other New York City restaurants and several labor organizations representing the employees of the defendant restaurants. The action was settled as to defendant La Cote Basque, and a settlement agreement ("the La Cote Basque agreement") in the form of a consent decree was filed on March 7, 1977. In their settlement, however, the parties agreed that defendant La Cote Basque retained the option of substituting for the terms and conditions of the La Cote Basque agreement the terms and conditions of any settlement agreement entered into between plaintiff (and the class she sought to represent) and any of the other defendants. On December 20, 1978, La Cote Basque exercised this option and elected to be bound by a subsequently executed agreement pursuant to which the action was settled as to Lutece ("the Lutece agreement"), another of the defendant restaurants.

 By stipulation approved by the Court and filed on February 13, 1979, plaintiff and defendant La Cote Basque agreed that La Cote Basque had validly exercised its option. Prior to the execution of this stipulation, plaintiff had moved for an order directing that La Cote Basque participate in the arbitration of certain disputes between it and plaintiff that had arisen under the settlement agreement, and in the stipulation the parties agreed to submit these disputes to arbitration. Because of La Cote Basque's election, it was agreed that this arbitration would be conducted under the arbitration procedures of the Lutece agreement rather than those of the La Cote Basque agreement. Since the disputes had arisen before La Cote Basque elected to substitute the Lutece agreement, however, the Court directed that the arbitrators apply the terms of the La Cote Basque agreement to determine the substantive rights of plaintiff and La Cote Basque.

 Arbitration Award

 Defendant contends that the Court does not have jurisdiction to confirm the arbitration award. This contention is without merit. The Court has retained jurisdiction over this matter throughout. The Lutece agreement, at paragraph 17, provides that "(t)he Court will retain jurisdiction of this action pending disposition of all matters contained in this Decree and for the purpose of issuing any additional order required to effectuate this Decree." Moreover, in the stipulation pursuant to which the arbitration was conducted, plaintiff and defendant La Cote Basque agreed that "the Court has continuing jurisdiction to enforce the agreement of the parties." A court's jurisdiction to issue orders to effectuate and enforce the settlement of an action before it includes the jurisdiction to enter an order confirming an award resulting from an arbitration conducted pursuant to the settlement.

 Both the Lutece and La Cote Basque agreements (at paragraphs 16(h) and 14(i), respectively) provide that an arbitration award will be enforceable "under New York Law (sic) as if it were a labor arbitration award." In the Court's view, this provision does not require that judgment on an arbitration award be entered only by a New York state court. Rather, it evidences an intention only that the award be enforceable in accordance with New York law. As the court of appeals observed in I/S Stavborg v. National Metal Converters, Inc., 500 F.2d 424, 427 (2d Cir. 1974), given that the underlying dispute was governed by federal law, "it seems doubtful ... that either party was particularly concerned that an award might be enforced in federal court." See also T & R Enterprises, Inc. v. Continental Grain Co., 613 F.2d 1272, 1279 (5th Cir. 1980) (once federal court has jurisdiction, power exists to enter judgment on arbitration award arising out of original action).

 The Court also finds no merit to defendant's further contention that the award be modified to reverse certain of the arbitrators' findings as to La Cote Basque's liability to plaintiff. There is nothing in the record to suggest that the arbitrators exceeded their authority or otherwise acted improperly in reaching the results they did. Accordingly, plaintiff's application to confirm the award must be granted.

 Attorney's Fee

 Turning to the more difficult question of plaintiff's application for an award of a $ 22,562.50 attorney's fee, the Court notes first that this application was presented by plaintiff to the arbitrators at the close of the arbitration proceedings. The arbitration panel awarded plaintiff's counsel the nominal fee of $ 250 authorized in paragraph 16(e) of the Lutece agreement, after determining that it had no other authority under either the Lutece agreement or the La Cote Basque agreement to award a more substantial attorney's fee to plaintiff. The arbitrators did conclude, however, that plaintiff's counsel deserved "a substantial and reasonable fee for her highly skillful and professional work."

 To determine whether it can award an attorney's fee to the plaintiff in this case pursuant to Title VII the Court must address itself to two separate inquiries. The Court first must decide whether, as a general matter, Title VII authorizes an award of attorneys' fees in actions brought to enforce settlements of employment discrimination actions. Second, the Court must determine whether in this particular action, even if Title VII would otherwise empower it to award an attorney's fee to plaintiff as the prevailing party, the applicable settlement agreement or agreements here preclude such an award.

 The Court has reviewed the authority cited by plaintiff in support of her contention that attorneys' fees are commonly awarded in proceedings brought to enforce consent decrees in civil rights actions. None of the cases cited addresses the precise question raised here. In Class v. Norton, 505 F.2d 123, 126-27 (2d Cir. 1974), for example, the court of appeals affirmed an award of attorneys' fees against a state officer, sued in his official capacity, for the willful and unreasonable failure to comply with certain orders issued in connection with the district court's decision in the underlying dispute. Similarly, the court in Vecchione v. Wohlgemuth, 481 F. Supp. 776, 783 (E.D.Pa.1979), merely stated in dictum that, for the part of the fee application before it where fees were sought for services performed by counsel after the consent decree had been entered, it would award fees for those services "on the theory that defendants' bad faith in complying" with the decree permitted such an award. The closest plaintiff comes to the question at issue here is a footnote appended to the Fifth Circuit's decision in Cook v. Ochsner Foundation Hospital, 559 F.2d 270, 273 n.6 (1977) (which affirmed a decision to award attorneys' fees for the willful disobedience of a court order), where the court notes in dictum that an award of attorneys' fees incident to the enforcement of a consent decree in a civil rights action might be permissible under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988.

 Nevertheless, even without the support of authority directly on point, the Court is of the view that the award of a reasonable attorney's fee may be appropriate in this case. Courts have consistently given a liberal construction to the attorneys' fees provision of Title VII. Indeed, it is now settled that a prevailing plaintiff in a Title VII action "ordinarily is to be awarded attorney's fees in all but special circumstances." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417, 98 S. Ct. 694, 698, 54 L. Ed. 2d 648 (1978). See also Milwe v. Cavuoto, 653 F.2d 80, 82 (2d Cir. 1981). Moreover, as the Supreme Court recently held in New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S. Ct. 2024, 64 L. Ed. 2d 723 (1980), section 706(k) of the Act authorizes an award of attorneys' fees to a prevailing Title VII plaintiff for work done in administrative proceedings preceding the filing of a Title VII action. Attorneys' fees may also be awarded pursuant to section 706(k) to a plaintiff who prevails by settlement through a consent judgment, as in this case, or even without formally obtaining court-ordered relief. Chicano Police Officer's Association v. Stover, 624 F.2d 127, 131 (10th Cir. 1980). See also Maher v. Gagne, 448 U.S. 122, 129-30, 100 S. Ct. 2570, 2574-75, 65 L. Ed. 2d 653 (1980) (fact that plaintiff prevailed by settlement in action under 42 U.S.C. § 1983 does not preclude award of attorneys' fees pursuant to 42 U.S.C. § 1988).

 Although the Court in New York Gaslight Club, Inc. v. Carey, supra, necessarily concentrated on the meaning of the word "proceeding" in section 706(k) as it relates to administrative proceedings instituted prior to the commencement of a Title VII action, in its decision the Court did not limit the Title VII proceedings for which attorneys' fees could be awarded to those administrative proceedings required by the Act as conditions precedent to a federal lawsuit. At one point in the New York Gaslight Club opinion the Court observed that "throughout Title VII the word "proceeding,' or its plural form, is used to refer to all different types of proceedings in which the statute is enforced, state and federal, administrative and judicial." 447 U.S. at 62-63, 100 S. Ct. at 2030. Indeed, as the Court further noted, id. at 63 n.3, 100 S. Ct. at 2030 n.3, section 706(i) authorizes the Equal Employment Opportunity Commission "to commence proceedings to compel compliance" with certain court orders issued in Title VII actions. Plainly, the "proceedings" ...

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