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VULCAN SOCY. OF WESTCHESTER CTY., INC. v. FIRE DEP

February 25, 1982

VULCAN SOCIETY OF WESTCHESTER COUNTY, INC.; et al., Plaintiffs,
v.
FIRE DEPARTMENT OF the CITY OF WHITE PLAINS; et al., Defendants, and Professional Fire Fighters Association, Inc., et al., Intervenors-Defendants



The opinion of the court was delivered by: SOFAER

AMENDED OPINION

This has been a hard-fought employment discrimination case. Plaintiffs sought damages and major recruitment changes in the fire departments of four municipalities in Westchester County: Mount Vernon, New Rochelle, White Plains, and Yonkers. Plaintiffs challenged the job requirements for firefighters in those cities, their recruiting practices and policies, and the content of and weight given to the written tests for firefighter positions. In addition, plaintiffs sued the State of New York to secure changes in the tests the State Department of Civil Service ("DCS") prepared for firefighters. The purpose of the suit, and of the changes sought, was to increase the number of blacks serving those municipalities as firefighters.

Defendants made omnibus motions early in the litigation. They raised virtually every defense conceivable in an employment discrimination case. All contended that the organizational and individual plaintiffs lacked standing; that the Court lacked jurisdiction under Title VII of the Civil Rights Act of 1964, under 42 U.S.C. § 1981, and under 42 U.S.C. § 1983; that the applicable statute of limitations barred the suit as untimely; that the action was improperly brought under the fourteenth amendment; that defendants' good faith and lack of intention to discriminate immunized them from suit; that the state and city defendants were immune from liability under the eleventh amendment of the Constitution of the United States; that Yonkers was immune from liability because it was operating under the orders of an emergency control board; and that, with respect to the state defendants, Title VII of the Civil Rights Act of 1964 was inapplicable.

 Discovery limited to these motions was undertaken. Motions related to discovery were heard and decided, as was a motion to sever made by the White Plains defendants. Defendants also opposed plaintiffs' motion to certify the case as a class action arguing that none of the Rule 23 requirements was satisfied. Plaintiffs moved to amend the complaint, which generated further work. On April 10, Judge Sweet ruled on all the pending motions. Vulcan Society of Westchester County v. Fire Department of White Plains, 82 F.R.D. 379 (S.D.N.Y.1979). He denied the motions to dismiss and for summary judgment, and certified various classes. Discovery then proceeded on the merits.

 Virtually throughout this litigation, plaintiffs have sought and obtained forms of preliminary relief. The first effort to restrain the hiring of firefighters in the defendant cities was resolved by consent of the parties and approved by the Court. Subsequently, this agreement broke down with respect to Yonkers, which needed to hire firefighters. Plaintiffs opposed the hiring. The Court allowed a number of appointments, but required that a number of positions be kept open to protect plaintiffs' rights. On January 17, 1980, the United States filed suit against the same city and state defendants, raising the same charges of discrimination against blacks, and broadening the charges to include discrimination against Hispanics and women.

 Settlement negotiations began among the parties soon after Judge Sweet's decision of April 10, 1979, and continued with many disruptions for more than a year through 1980. These negotiations led to the resolution of complex and politically delicate issues, including relief with respect to the improvement and validation of the written tests; modification of the physical agility test; changes in recruitment and training, in the system of ranking candidates, the method of grading examinations, the treatment of persons with prior convictions, or a history of drug abuse, or those without a high school diploma; the interim appointment of firefighters; establishment of hiring and promotional goals; damages for some named plaintiffs and some unnamed class members; general injunctive relief and compliance, and cross-claims. The variety of local, state and federal policies and laws involved, the collective bargaining agreements already in effect in the cities, and the fact that sensitive political and human issues are at stake, all made a settlement complex and unusually difficult to achieve. See generally Vulcan Society of Westchester County v. Fire Department of White Plains, 505 F. Supp. 955 (S.D.N.Y.1981) (opinion approving settlement).

 Plaintiffs now seek attorneys' fees as the prevailing parties under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1976), as amended by Pub.L. 94-559; and 42 U.S.C. § 2000e-5(k) (1976). Their attorneys have filed affidavits establishing a total of 3,288.25 hours of lawyer time, worth at their current billing rates some $ 385,550.00. This lodestar figure, they propose, should be increased by a multiple of 2.5, in recognition of the importance of this case, the special qualities of their services, and their achievements. The fee sought, therefore, is $ 963,875.00 (which plaintiffs apparently miscalculated as $ 963,974.99). In addition, plaintiffs seek costs totalling $ 12,264.16, parts of which are opposed by the State of New York. Defendants oppose this motion for fees on numerous grounds. For the reasons that follow, a fee is clearly appropriate, and under the circumstances of this case a relatively modest multiple is warranted. Costs will be taxed by the Clerk for the amounts specified below.

 I.

 Plaintiffs have prevailed, and are entitled to their attorneys' fees. 42 U.S.C. § 1988 (1976); 42 U.S.C. § 2000e-5(k) (1976). Plaintiffs have obtained substantial benefits for the class they represent, and for themselves. See Gagne v. Maher, 594 F.2d 336, 340 (2d Cir. 1979), aff'd, 448 U.S. 122, 100 S. Ct. 2570, 65 L. Ed. 2d 653 (1980). Defendants' claims to the contrary are extensively briefed but frivolous. The settlement that some defendants offered to enter into before the EEOC was far less favorable to plaintiffs than the results obtained through this litigation, including dramatic increases in the number of blacks on the most recent firefighter lists. See Pl. Reply Memo. at 3-9; Reply Affidavit of Richard J. Hiller, Esq., especially PP 6-16. The consent judgments also secure major changes in the tests for firefighters, including validation requirements and a device for avoiding disparate impact. The written exam, moreover, is now only a qualifying test, not a ranking device. Having read the numerous conflicting affidavits and arguments on whether plaintiffs achieved or in fact obstructed the settlement, and related questions, and on the basis of long exposure to the parties and the attorneys, the Court finds that plaintiffs achieved a substantial victory, and that the defendants greatly exaggerate the significance of their early concessions. Judge Frankel's comments in Aspira of New York, Inc. v. Board of Education of New York, 65 F.R.D. 541, (S.D.N.Y.1975), are apposite here:

 
The court wishes to retract nothing of its appreciation for defendants' affirmative contributions. At the same time, there can be no question of the "necessity" ... served by plaintiffs in their bringing ... the action. It is perfectly clear that the "compliance" achieved in this case would not have happened, certainly not as early or as thoroughly as it has, without the initial and continued impact of plaintiffs' action.

 II.

 The proper first step in calculating the fee that should be paid to plaintiffs is to establish the so-called lodestar figure "by multiplying the number of hours expended by each attorney ... by the hourly rate normally charged for similar work by attorneys of like skill in the area." City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir. 1977) ("Grinnell II"). The historic hourly rates claimed for plaintiffs' attorneys are $ 110 for Messrs. Hiller and Teitelbaum, $ 100 for Howard Rubin, and $ 80 for Richard O. Berner. These are reasonable rates, based on the expertise and competence demonstrated by all the individuals involved, and in light of the experience they bring to civil-rights litigation. See affidavits and resumes filed with Notice of Motion for Attorneys Fees'. Numerous reported cases have approved fees in this range for similar work, some in localities with lower wages and higher costs of living than exist in this district. See, e.g., Keith v. Volpe, 501 F. Supp. 403 (C.D.Cal.1980) (environmental protection and civil rights) ($ 117.50 per hour for senior counsel; $ 70/hour for staff counsel); and other cases cited in plaintiffs' papers, including the unreported decisions collected in Appendices A & B of Plaintiff's Notice of Motion For Reasonable Attorneys' Fees and Costs.

 Much higher hourly rates have been awarded in securities and antitrust litigation, although the issues there are no more complex than in this case, and the social utility of encouraging those suits is certainly no greater than the benefits derived from this litigation. See generally Torres v. Sachs, 69 F.R.D. 343, 347 (S.D.N.Y.1975), aff'd, 538 F.2d 10 (2d Cir. 1976). On the other hand, this is not a case in which current as opposed to historic rates should apply, since the historic fees are reasonable under present economic conditions. On the other hand, the current fees are also reasonable, and seem particularly appropriate in light of the long delay in collecting the fees earned in this over three-year old case. The Court has considered this fact, however, in connection with the request for a multiple of the lodestar. Under the circumstances, the historic rates will be applied, on the assumption that a modest multiple is the proper method for offsetting the effects of inflation in connection with other meritorious considerations.

 The total number of hours for which plaintiffs' attorneys seek compensation is 3,288.25. That number is made up of the following: Hiller (1500.25 hours), Teitelbaum (1189.75 hours); Berner (526.25 hours), and Rubin (72 hours). Each attorney's claimed hours expended is supported with a detailed history, including date of work, description, and amount of time spent on each occasion. Billing practices were imperfect in minor respects, but any over- statements were more than offset by various conservative devices such as only charging for time exceeding one-quarter hour. See Pl. Reply Memo. at 62-63. The affidavits and supporting data convincingly establish that the hours claimed were actually spent in the manner ...


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