her termination was a violation of Title VII. She was prevented from raising Title VII matters in the Adverse Action Appeal even though all government agencies are responsible "to assure nondiscrimination in employment" as required by the Constitution and statutes. 42 U.S.C. § 2000e-16(e). She was appealing this preclusion of issues to the EEOC when the parties settled.
Perhaps plaintiff could have refused to settle her case in order to have the EEOC rule on the Navy Exchange's policy. But the court cannot condemn her for achieving a positive result in her case. It remains for this court to determine what part, if any, of the services rendered in the Adverse Action Appeal was so related to plaintiff's Title VII proceedings as to be properly considered for the purposes of attorneys' fees.
Plaintiff's allegations of discrimination on the record in the Adverse Action Appeal contributed to the strength of plaintiff's settlement position, as did the finding of procedural irregularities by the hearing officer. She had already shown improper treatment. It only remained to show discriminatory animus.
As a practical matter the Adverse Action Appeal was inseparable from the Title VII proceedings. Some portion of counsel's services in that appeal constituted "work that was both useful and of a type ordinarily necessary to advance the civil rights litigation to the stage it reached before settlement," Webb v. Board of Educ., 471 U.S. 234, 243, 105 S. Ct. 1923, 1928-29, 85 L. Ed. 2d 233 (1985), and thus should be considered in determining attorney's fees.
But to the extent the services in the Adverse Action Appeal were about procedural problems alone and arguably unrelated to discrimination, the court will not award fees. The court finds that 10% of the time devoted "solely" to the Adverse Action Appeal was both useful and necessary to achieve the settlement of plaintiff's Title VII claims.
Defendant calculated from plaintiff's attorney Valerie Voorhees' time sheets the hours she spent on the Adverse Action Appeal alone, the hours she spent on both the Adverse Action and the EEO appeals, and the hours she spent on the EEO proceedings alone. The court will use that breakdown with the following adjustments: (1) all time spent solely on settlement, namely the hours in December and January, will be considered 100% compensable; and (2) the documented hours submitted by plaintiff since the defendant made its calculations, or 34.25 hours, will be added as compensable.
With these changes the court finds that plaintiff's attorney spent 124.45 hours solely on settlement and EEO-related proceedings, 41.35 hours on both the Adverse Action and the EEO appeals, and 53.95 hours on the Adverse Action Appeal alone. The court will count 50% of the mixed hours as attributable to the EEO proceedings and compensable. Of the other 50% of the mixed hours and of the 100% Adverse Action Appeal hours, the court will count 10% of that total as necessary to the Title VII claims and compensable. Thus:
settlement and EEO hours:
124.45 x 1.00 = 124.45 compensable hours
mixed, attribute to EEO:
41.35 x .50 = 20.68 compensable hours
mixed, attribute to Adverse Action and weight 10%:
41.35 x .50 x .10 = 2.07 compensable hours
solely Adverse Action, weight 10%:
53.95 x .10 = 5.40 compensable hours
total compensable hours:
124.45 20.68 2.07 5.40 = 152.60 compensable hours
The total of Ms. Voorhees' compensable time is 152.60 hours. Defendant does not dispute the 11.15 hours of Ms. Voorhees' associate Sherri L. Martin, nor does it dispute the $ 212.75 in costs submitted by plaintiff.
B. Hourly Rate
Plaintiff claims hourly rates of $ 325 for attorney Voorhees time and $ 125 for that of attorney Martin. Defendant challenges the $ 325 an hour rate.
Plaintiff submits documentation tending to show that since graduating from law school almost 21 years ago Ms. Voorhees has become a recognized expert in and leading practitioner of public sector labor law. She also submits declarations showing that $ 325 an hour is within the range of fees charged by employment lawyers with experience similar to hers. Other declarations show that as of 1990, firms such as Paul, Weiss, Rifkind, Wharton & Garrison billed at rates of up to $ 425 an hour.
Defendant argues that because plaintiff's was obligated to pay only $ 220 an hour for Ms. Voorhees' time, the court should use that rate. In the alternative, defendant notes that in Eidlen v. Community Sch. Bd. District 8, No. 92 Civ. 8041 (S.D.N.Y. 1993) (McKenna, J.), and in David v. Sullivan, 777 F. Supp. 212 (E.D.N.Y. 1991) (Weinstein, J.), the courts held $ 250 an hour to be acceptable maximum rates.
In Eidlen the court noted that $ 325 an hour would be a reasonable fee for some hours, but it reduced the average rate to $ 250 an hour because some work could have been performed by an associate. Here plaintiff's attorney appears to have performed her job with efficiency, and much of the work involved communications and negotiations properly attended to by a senior attorney.
In David v. Sullivan, the court found that a $ 250 an hour was an appropriate maximum rate for senior litigators in civil rights cases. 777 F. Supp. at 222 (report and recommendation adopted by the court) (citing Huntington Branch NAACP v. Town of Huntington, 749 F. Supp. 62 (E.D.N.Y. 1990) (surveying attorney's fee cases)).
Although Ms. Voorhees is an expert in her field, it is not appropriate to determine her hourly rate by comparison to large law firms. Although some Paul, Weiss partners may bill at over $ 400 an hour, that figure is misleading because of the high expenses associated with maintaining large offices. See, e.g., Burr v. Sobol, 748 F. Supp. 97, 101-02 (S.D.N.Y. 1990) (rejecting comparison to Cravath, Swaine & Moore and finding requested $ 225 an hour "wholly justified" for director of New York Lawyers for the Public Interest).
But there is also no reason to limit Ms. Voorhees' fee to the $ 220 an hour agreed upon with her client. She says that she charges clients on a sliding scale from $ 0 to $ 325 an hour depending on their ability to pay. The appropriate measure is the market rate for her services by client's who can afford them, not her client's perceived ability to pay. Otherwise pro bono attorneys could never recover fees. See Wilder v. Bernstein, 725 F. Supp. 1324, 1334 (S.D.N.Y. 1989), aff'd in part, remanded, 965 F.2d 1196 (2d Cir.), cert. denied sub nom. Administrator, New York City Dept. of Human Resources v. House, 121 L. Ed. 2d 335, U.S. , 113 S. Ct. 410 (1992).
Considering Ms. Voorhees' experience, the quality of her work in this case, and the relevant market rates for public interest attorneys, the court finds that $ 275 an hour is an appropriate rate for her services. The rate of $ 125 an hour for Ms. Martin also is reasonable and uncontested. Defendant will pay attorneys' fees and costs of:
$ 275/hour x 152.60 hours = $ 41,965.00
$ 125/hour x 11.15 hours = 1, 393.75
costs = 212.75
- previously paid = 5,000.00
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