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VERNON v. PORT AUTHORITY OF NEW YORK AND NEW JER.

August 26, 2002

LEONARD VERNON, PLAINTIFF,
V.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, DEFENDANTS.



The opinion of the court was delivered by: Leisure, District Judge.

      OPINION AND ORDER

Plaintiff Leonard Vernon ("Vernon") commenced this action against his former employer, The Port Authority of New York and New Jersey ("Port Authority"), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq (2001) ("Title VII") and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623(a), (d) (2001) ("ADEA"). Following a trial on the merits and a finding in favor of Vernon, Vernon's attorney submitted an application for attorney's fees and an economic report detailing both an award of back pay and an award of front pay owed to Vernon. The Court will address these submissions in seriatim.

Background

On May 24, 2002 the jury returned a verdict in favor of Vernon. See Trial Transcript, Vernon v. Port Authority of New York and New Jersey ("Tr."), at 1222-25. With regard to the first instance of alleged discrimination, the downgrade of Vernon's Performance Planning and Review ("PPR") in January 1995, the jury found that the Port Authority discriminated against Vernon on the basis of national origin, thus violating Title VII, but that age was not a motivating factor in the Port Authority's decision to downgrade Vernon's PPR ratings, and therefore there was no ADEA violation on this ground. See id. at 1223. The jury did find, however, that the Port Authority's motivation to downgrade Vernon's PPR ratings was founded in retaliation for Vernon filing a complaint with the Port Authority's Office of Equal Opportunity. See id. This retaliatory action violated both Title VII and the ADEA.

In addition, with regard to the issue of "Failure to Promote" in March of 1995, the jury found that the Port Authority violated Title VII by discriminating against Vernon on account of his race and national origin, but that there was no ADEA violation because age was not a motivating factor for its decision. See id. The jury did find that retaliation was a motivating factor in the Port Authority's decision not to promote Vernon, and thus violated both Title VII and the ADEA. See id. at 1223-24. Further, the jury awarded Vernon $1.5 million in compensatory damages and found that he was entitled to back pay. See id. at 1224-25.*fn1

On June 21, 2002 Vernon submitted to the Court an application for attorney's fees and an economic report regarding back pay and front pay that is owed to Vernon. See Analysis of Economic Loss of Leonard A. Vernon prepared by Leonard R. Freifelder, Ph.D. ("Economic Report"). Vernon seeks $78,250 in compensation for the work of his attorney, Thomas F. Bello, Esq. on this matter. See Letter dated June 21, 2002, written by Thomas F. Bello, Esq. to Judge Leisure ("Letter of June 21"). In response, the Port Authority has submitted its economic report regarding back pay and front pay owed to Vernon and its opposition to the award of attorney's fees.

Discussion

I. Attorney's Fees

A. Applicable Law

An attorney for a prevailing plaintiff is eligible to seek attorney's fees and costs under both Title VII and the ADEA. See 42 U.S.C. § 2000e-5(k); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997) (citing Hagelthorn v. Kennecott Corp., 710 F.2d 76, 86 (2d Cir. 1983)); Bridges v. Eastman Kodak Co., 102 F.3d 56, 58 (2d Cir. 1996) (McLaughlin, J.). Plaintiffs are entitled to recover taxable costs, pursuant to 28 U.S.C. § 1920, and all expenses normally charged to the client. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998). However, costs do not include overhead or items normally incorporated within the attorney's fee. See id.

Attorney's fees are determined using the "lodestar" method, which is calculated by multiplying the number of hours spent on the litigation by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The attorney, in his application for fees, should submit a record of the hours worked, such that the Court can verify the amount of fees requested. See id. If such records are inadequate the Court may reduce the award accordingly. See id. Moreover, the Court has a great deal of discretion in determining attorney's fees. Thus, if it feels the hours charged are superfluous or unreasonable, it may deduct these hours from the lodestar calculation. See Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d Cir. 1997) (deducting hours from the lodestar calculation because found to be excessive).

In determining the fees to be charged, the Court should use a rate that is reasonable for the district in which it sits. See Polk v. New York State Dep't of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983). Moreover, the rate should be compatible with rates of attorneys of "comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). In addition, submissions should be made in accordance with Rule 54(d)(2)(B), which requires that a motion for attorney's fees be filed no later than 14 days after entry of judgment, unless otherwise provided by statute or order of the court. See Fed.R.Civ.P. 54(d)(2)(b).

The fee may be adjusted upward or downward depending on the circumstances of the case. The Court may adjust the fee upward if the case presents a novel or difficult question, or if the skill required to present the case is of a great magnitude. See Hensley, 461 U.S. at 434, 103 S.Ct. 1933 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974)). The Supreme Court has noted, however, that only in rare situations are these factors not accounted for in both the billable hours spent on the case and the hourly fee that is charged, and therefore an adjustment often amounts to a double counting of these factors. See Blum, 465 U.S. at 898, 104 S.Ct. 1541.

Likewise, the Court may adjust the fee downward. For example, in suits comprised of multiple claims, the attorney may only charge for hours spent on meritorious claims, and therefore the fee can be adjusted accordingly. See Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1183 (2d Cir. 1996). Downward adjustment should not occur, however, when the claims are "inextricably intertwined" and "involve a common core of facts or [are] based on related legal theories." Id. (quoting Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1259 (2d Cir. 1987)).

B. Application

1. Hours Worked

The law is clear that while an attorney does not have to account for every minute of his time, the records should be accurate enough for a court to make a genuine determination of the actual hours spent on the litigation. See Hensley, 461 U.S. at 437 n. 12, 103 S.Ct. 1933. After reviewing the record summary submitted herein, it is apparent that there is a great deal of discrepancy between the actual hours reported by Mr. Bello and the hours he charged his client. This may be a result of unclear time charts or simple miscalculations. In either case, Mr. Bello has failed to comply adequately with the applicable case authorities, and submit time sheets that allow the Court to make an accurate determination of the time spent on specific matters. See Stratton v. Department for Aging for City of New York, No. 91 Civ. 6623, 1996 WL 352909, at *4 (S.D.N.Y. June 25, 1996) (citing Hensley, 461 U.S. at 433, 103 S.Ct. 1933) (holding that detailed records of all hours billed must be submitted to the court). The Port Authority has specifically challenged the hours Mr. Bello has submitted in conjunction with the depositions and trial preparation, See Letter Submitted by The Port Authority of Now York and New Jersey, dated July 19, 2002 ("Port Authority Letter"), at 4.*fn2

Chart of Hours Worked Presented By Thomas Bello

Matter Who/Hours Reported Billable Time Charged
Depositions Bello/9.83 Hours 37 Hours
Associate/12.5 Hours 15 Hours
Trial Prep. Unspecified/104.5 Hours ...

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