Dr. Gallo's testimony mentioned "stress" only twice: once when he
was reciting the initial complaints that the Plaintiff presented,
and again when he recommended that the Plaintiff seek to "reduce
stress." In light of the complete lack of any testimony by Dr.
Gallo that he determined the Plaintiff to be suffering from
stress related to her working environment, as opposed to any
other source, the Court's instruction to the Plaintiff's counsel
during summation was correct. In any event, the Court notes that
its instruction to the Plaintiff's counsel did not prohibit him
from referring to any other part of Dr. Gallo's testimony, nor
did Adchem make any significant mention of Dr. Gallo in its
summation, other than to indicate that Dr. Gallo suspected the
Plaintiff's use of Advil might have contributed to her stomach
To the extent that the Plaintiff's motion contends that the
Court's ruling regarding Dr. Gallo's testimony somehow confused
the jury into believing that their award for punitive damages
would encompass her claims for emotional distress as well, the
Court finds no merit in such a claim. Besides being uncertain of
precisely how the former is alleged to have caused the latter,
the Court finds that the Plaintiff raised no objection to the
compensatory damage instruction at either the initial charging
conference, or when the charge was actually given to the jury.
Thus, the Court finds no error occurred regarding the Plaintiff's
summation that warrants a new trial on damages.
The Plaintiff's second argument, that the Court erred in
instructing the jury on punitive damages, is irrelevant. Under
42 U.S.C. § 1981a(b)(1)(3), the combined total of compensatory and
punitive damages a Title VII claimant may recover is capped based
on the size of the employer. Here, the only evidence in the
record of Adchem's size is Pufhal's testimony that Adchem had
approximately 140 employees in 1993 and 1994. Accordingly, the
maximum amount that the Plaintiff could recover in punitive
damages would be $100,000, 42 U.S.C. § 1981a(b)(1)(3)(b), exactly
the amount the jury awarded for such damages. Thus, even if the
Court had given a more correct jury instruction and the jury had
returned a higher punitive damage award, the Court would
nevertheless have reduced the award to $100,000. Moreover, as
stated above, no punitive damages are available under the
Plaintiff's state law claims. Thoreson, supra. Therefore, even
assuming that the Court gave an incorrect jury instruction on
punitive damages, the error is harmless and the Plaintiff
received the maximum verdict she can obtain under Title VII.
For these reasons, the Plaintiff's motion for a new trial on
damages is denied.
C. As to the Plaintiff's application for attorney's fees
A prevailing party in a case brought pursuant to Title VII is
entitled to an award of reasonable attorney's fees.
42 U.S.C. § 2000e-5(k). Because of the district court's familiarity with the
quality of the representation and the extent of the litigation,
the decision whether to award fees and the amount of fees awarded
are issues generally confined to the sound discretion of the
court. Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998).
The well-known formula for calculating attorney's fees is the
"lodestar" method described in Pennsylvania v. Delaware Valley
Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct.
3088, 92 L.Ed.2d 439 (1986). Under this method, the court makes
an initial calculation of a lodestar amount by multiplying the
number of hours reasonably spent on the litigation by a
reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424,
433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); LeBlanc-Sternberg v.
Fletcher, 143 F.3d 748, 763-64 (2d Cir. 1998); Gierlinger, 160
F.3d at 876; Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir.
1997). If the court finds that certain claimed hours are
excessive, redundant, or otherwise unnecessary, the court should
exclude those hours from its lodestar calculation. Hensley, 461
U.S. at 434, 103 S.Ct. 1933; Luciano, 109 F.3d at 116.
Once the initial lodestar calculation is made, the court should
then consider whether upward or downward adjustments are
warranted by factors such as the extent of success in the
litigation and the degree of risk associated with the claim.
Hensley, 461 U.S. at 434 and n. 9, 103 S.Ct. 1933, citing
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719
(5th Cir. 1974).
Adchem first contests whether the Plaintiff is a "prevailing
party," arguing that the jury's verdict did not find Adchem
directly guilty of any act, but merely held it vicariously liable
for Mars' harassment. However, in Burlington Industries v.
Ellerth, 524 U.S. 742, 759, 118 S.Ct. 2257, 141 L.Ed.2d 633
(1998), the Supreme Court explained that an employer is directly
liable for its own negligence in failing to stop known workplace
sexual harassment. Thus, the jury's finding in favor of the
Plaintiff on the hostile environment claim is a finding of direct
liability against Adchem. Moreover, in light of the jury's award
of punitive damages to the Plaintiff, there can be no argument
that she has received an enforceable judgment against Adchem,
thus satisfying the prevailing party test set forth in Farrar v.
Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).
Therefore, the Court finds that the Plaintiff is a prevailing
party and entitled to an award of reasonable attorney's fees.
However, in making the initial lodestar calculation, the Court
finds that the hourly rates requested by the Plaintiff's counsel
are excessive. The rate to be used in the calculation must be the
rate "prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience, and reputation."
Luciano, 109 F.3d at 111, citing Blum v. Stenson,
465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The Second
Circuit has recently held that rates of $200 for partners, $135
for associates, and $50 for paralegals are reasonable hourly
rates for legal services in the Eastern District. Savino v.
Computer Credit, Inc., 164 F.3d 81, 87 (2d. Cir. 1998);
Luciano, 109 F.3d at 111-112 (collecting cases); Cruz v. Local
Union No. 3, Int'l. Brotherhood of Electrical Workers,
34 F.3d 1148, 1160 (2d Cir. 1994). Therefore, the Court will apply those
rates in making the initial lodestar calculation.
Next, the Court must determine the number of hours that were
reasonably expended in this litigation. Upon reviewing the time
sheets submitted by Plaintiff's counsel, and based upon this
Court's own knowledge of the issues tried in the case, the Court
concludes that many of the hours sought by the Plaintiff are
unnecessary and excessive. For example, three attorneys were
present at the Plaintiff's counsel table throughout most of the
trial. Given that this was a fairly simple case, involving no
novel issues of law or complex documentary evidence, the Court
finds that overstaffing of the case by the Plaintiff to be
unreasonable. At most, trial of the Plaintiff's claims required
the services of one partner and one associate, and thus, the
Plaintiff's claimed trial hours (including jury selection) will
be reduced to 65 hours each for one partner and one associate.
Given the lack of complexity of the issues for trial, the Court
finds that the additional 135 hours claimed by the Plaintiff for
"trial preparation" are also excessive, and the Court reduces
those hours to 60 hours at a partner rate and an additional 25
hours at an associate rate. The Court finds the remaining hours
claimed by the Plaintiff's counsel to be generally reasonable.
Based on these findings, the Court determines that the initial
lodestar calculation should be as follows:
Pre-trial: 18.8 hours at $50 per
hour (S.Stewart) = $940
16 hours at $135 per
hour (T. Eskridge) = $2160
137.5 hours at $200 per
(C. Stewart, R. Bielski,
R. Iaannacone) = $27,470
Trial prep.: 60 hours at $200 and 25
hours at $135 = $15,375
Trial time: 65 hours at $200 and 65
hours at $135 = $21,775
In addition, the Plaintiff's application contains 33.65 hours
attributed to a "T.A."
who is not identified. However, the task descriptions for this
individual indicate paralegal-type work, and thus, an additional
33.65 hours at $50 per hour will be included in the initial
calculation. Therefore, the total initial lodestar figure is
However, as the Supreme Court in Hensley observed,
calculation of the lodestar figure "does not end the inquiry."
Hensley, 461 U.S. at 434 and n. 9, 103 S.Ct. 1933. In its
opposition to the Plaintiff's request for fees, Adchem points out
that the Plaintiff achieved limited success on her claims.
Specifically, the jury found against her on her retaliation and
quid pro quo harassment claims, and found that she suffered no
compensable damages resulting from the hostile environment at
Adchem. The Court agrees that a reduction of the lodestar figure
is warranted in light of the Plaintiff's partial success.
Nevertheless, the Court also observes that the Plaintiff was
successful in her ultimate claim that Adchem was responsible for
the maintenance of a hostile working environment, and, in light
of the facts presented, recovered a very generous punitive damage
award. Therefore, the Court finds that a general lodestar
reduction of 25% is appropriate to reflect the partial lack of
success achieved by the Plaintiff. See e.g. Quinn v. Nassau
County, 75 F. Supp.2d 74, 79 (E.D.N.Y. 1999) (10% reduction in
case involving a much greater degree of success). In addition,
the Court awards the Plaintiff an additional 10 hours at $200 per
hour for time spent opposing Adchem's post-trial motions and
preparing the application for attorney's fees.
Therefore, the Court finds that the Plaintiff should be awarded
attorney's fees in the total sum of $54,052.
As to the Plaintiff's requested disbursements and expenses,
only those costs enumerated under 28 U.S.C. § 1920 may be taxed.
Parties can recover costs for deposition transcripts under
28 U.S.C. § 1920(2) when the depositions appear to have been
reasonably necessary to the litigation at the time they were
taken, even if those transcripts are not used during trial. Sim
v. New York Mailers' Union No. 6, 1999 WL 674447 (S.D.N Y
1999). As Adchem does not contend that the five depositions taken
in this case are non-taxable, the Court grants the Plaintiff's
request for the transcript costs. However, the Plaintiff's
unitemized request for $1,200 in "photocopies" is neither
supported by receipts nor reasonable. 28 U.S.C. § 1920(4)
entitles a party seeking costs to recover costs of photocopying
"papers necessarily obtained for use in the case." Here, the
Plaintiff offered only a handful of exhibits at trial, and thus,
the Court estimates that the total cost of photocopying the
documents necessarily used in this case is no more than $250.
United States v. Merritt Meridian Constr. Corp., 95 F.3d 153,
173 (2d Cir. 1996) (reduction of claim for photocopying where
costs were not itemized). In addition, the Court denies the
Plaintiff's request for a $300 "witness fee" for her expert, Dr.
Gallo. Expert witness fees may be taxed only where the expert is
appointed by the court. Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 442, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987).
Therefore, the Plaintiff is awarded costs in the amount of $2,026.
For the foregoing reasons, Adchem's motion for judgment as a
matter of law dismissing the hostile environment claim and
vacating the jury's award of punitive damages is DENIED. The
Plaintiff's motion for a new trial on the issue of damages is
DENIED. Based on the jury's verdict, the Clerk of the Court is
directed to enter a judgment in favor of the Plaintiff, Tonia
Cush-Crawford, against Adchem Corp. in the amount of $100,000,
together with $54,052 in attorney's fees pursuant to
42 U.S.C. § 2000e-5(k) and $2,026 in costs. The Clerk is directed to close
© 1992-2003 VersusLaw Inc.