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VERNON v. PORT AUTHORITY OF NEW YORK AND NEW JER.
August 26, 2002
LEONARD VERNON, PLAINTIFF,
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, DEFENDANTS.
The opinion of the court was delivered by: Leisure, District Judge.
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.
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.
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.
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
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
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
Depositions Bello/9.83 Hours 37 Hours
Associate/12.5 Hours 15 Hours
Trial Prep. Unspecified/104.5 Hours ...