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United States District Court, Southern District of New York

April 29, 2003


The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge


This employment discrimination action was brought against The Port Authority of New York and New Jersey (the "Authority") and a number of its employees and officials by Neville Evans. The matter now is before the Court on the motion of the Authority and individual defendants Ernesto Butcher, Adrienne Holmes, and Lee Home for an award of attorneys fees pursuant to Section 706(k) of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(k), and the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988(b). As the case has occasioned several written opinions,*fn1 familiarity with which is assumed, only the briefest statement is necessary here.


The plaintiff in this employment discrimination case, Neville Evans, is an engineer at the Authority who believes that he repeatedly has been passed over for promotion because he is African-American. The complaint asserted also that plaintiff was subjected to a hostile work environment and that defendants retaliated against him for complaining about alleged racial discrimination at the Authority. The claims were based on Title VII of the Civil Rights Act, 42 U.S.C. § 1981, and in some cases on common law theories. The hostile work environment claim, some of the failure-to-promote claims, and claims against a number of individual defendants — including Lee Home — were dismissed on summary judgment.*fn2 The case was tried to a jury, which returned a verdict in favor of the remaining defendants on all points.

Movants now seek to recover (a) the entire cost incurred by the Authority in engaging outside counsel to defend defendant Home, and (b) a reasonable fee for the services of its two in-house attorneys in defending Butcher and Holmes. As to the latter, the Authority's in-house lawyers do not maintain time records. The application therefore seeks to recover only a reasonable fee for time actually spent in court in the eight days of trial and two additional hours spent at a conference with the Court.


A. Lee Home

Lee Home was involved — so far as the entire, voluminous record of this lawsuit reveals — in only one incident involving the plaintiff. He was present with plaintiff at a staff meeting on March 29, 2000 at which plaintiff allegedly complained to a supervisor about alleged racial discrimination. Following the meeting, Home, a co-worker whose office cubicle was near that of plaintiff, put a couple of strips of masking tape in a criss-cross form across the entrance to plaintiff's cubicle and suspended some Authority job bulletins or postings from the tape. Although he did not at first admit his responsibility for this prank, he later came forward, admitted it, and apologized to plaintiff. Plaintiff nevertheless sued him on five theories: (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) creation of a racially hostile work environment in violation of 42 U.S.C. § 1981, (4) retaliation under the same statute, and (5) violation of the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Ad. C. § 8-502 ("NYCHRL").

Home moved for summary judgment. Plaintiff then abandoned his common law claims. The Court granted summary judgment dismissing the others. It assumed arguendo that an individual co-worker who engages in racially motivated harassment sufficient to create a hostile work environment might be held liable under Section 1981, the NYSHRL, and the NYCHRL. But it dismissed the hostile work environment claims under all three statutes on the ground that Home's involvement was limited to this single incident, which "although tasteless and offensive, did not cause `the workplace [to be] permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of [plaintiff's] employment.'" Evans v. Port Authority, No. 00 Civ. 5753 (LAK), 2002 WL 77074, at *2 (S.D.N.Y. Jan. 22, 2002) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal quotation marks omitted)). Similarly, it dismissed the retaliation claims under all statutes because plaintiff failed to adduce any evidence of an adverse employment action causally connected with Home's action. Id.

The only statute applicable to this motion, insofar as it relates to Home, is 42 U.S.C. § 1988(b).*fn3 It provides in pertinent part that the Court, in its discretion, may award a reasonable attorney's fee to a prevailing defendant in a Section 1981 action. Section 1988 permits such recovery "only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant."*fn4

In this case, Home clearly was a prevailing party. The Section 1981 claims against him were patently frivolous. The hostile work environment claim was so because Home's only action was an isolated (as to Home) incident patently insufficient to alter the conditions of Evans' employment. The retaliation claim was so because plaintiff never even claimed that an adverse employment action flowed from Home's action. And as the state and city statutory and the common law claims were based on the same facts as the Section 1981 claims, the entire defense of Home was a single unit in which it is impossible to allocate the cost of defense as between the Section 1981 and the other claims. The entire cost of defense thus may be awarded under Hensley, 461 U.S. at 433-35, and Bonner v. Guccione, 178 F.3d 581, 600 (2d Cir. 1999).

Having determined that the Authority, which paid the cost of Home's defense by the law firm of Cullen and Dykman, is eligible to recover the reasonable cost of the entire defense, the next issue is one of the reasonableness of the fee. The Authority has submitted contemporaneous time records of Cullen and Dykman. Much of the work was done by Douglas Langholz at a rate of $200 per hour. There was occasional input on the file from Timothy Flanagan at a rate of $250 and a small amount of paralegal work. In all, Cullen and Dykman billed $52,613.24 of which $48,295 represented hourly charges for attorneys and paralegals and $4,318.24 was for disbursements.

Mr. Langholz was admitted to the Bar of this Court in 1998. Based on his years at the Bar and the Court's familiarity with his work, the rate of $200 charged for him was reasonable. Mr. Flanagan was admitted in 1979, is a partner in the firm, and is an honors graduate of Syracuse Law School. The rate charged for his services likewise was reasonable. In sum, the $52,613.24 paid by the Port Authority for the defense of Mr. Home was reasonable.

B. Ernesto Butcher and Adrienne Holmes

Plaintiff sued Butcher and Holmes under Title VII, Section 1981, the NYSHRL, and the NYCHRL and sued Ms. Holmes alone for intentional and negligent infliction of emotional distress. The principal thrust of the claim against Butcher was that he was involved in discriminatory failures to promote the plaintiff. The essence of the claim against Holmes was that she criticized plaintiff for raising his concerns about alleged racial discrimination at a staff meeting and then suspended plaintiff without pay for a brief period when he failed to appear for a scheduled appointment with the Authority medical department during a period in which he was not reporting to work on the basis of alleged illness. See generally Evans, 192 F. Supp.2d at 259-61.

The Title VII claims against both Butcher and Holmes were dismissed on motion on the ground that they were not liable to suit under that statute. Id. at 280 (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). The state statutory claims also were dismissed on motion on the ground that the anti-discrimination laws of New York and New Jersey do not apply to the Authority because it is an agency created by interstate compact. Evans, 192 F. Supp.2d at 281-82. The Section 1981 claim against Holmes was dismissed on summary judgment for want of any causal connection between her alleged actions and any actionable discrimination by the employer. Id. at 281. Plaintiff abandoned the rest of his claims against Holmes at trial. And while a small portion of plaintiff's Section 1981 claim survived Butcher's summary judgment motion, id. at 282, the Court on consent directed a verdict for Butcher on one aspect of what remained (Tr. 1232-34), and the jury returned a verdict in Butcher's favor on the others.

In view of these circumstances, all of the claims against Holmes, as well as the Title VII and state statutory claims against Butcher, were from doomed at the outset. The relevant statutes simply were inapplicable as a matter of law. And even if plaintiff's factual assertions against Holmes were true, there simply was no basis for suing her personally.*fn5 Nevertheless, three instances of allegedly discriminary failures to promote, in alleged violation of Section 1981, were submitted to the jury as against the Authority. Two of those were submitted also as to Butcher, plaintiff's theory being that Butcher, motivated by plaintiff's race, took or omitted to take some action that was a proximate cause of the Authority's decision to promote someone else on those occasions. As noted above, the jury returned a verdict for defendants on all issues. The question is whether those claims against Butcher also might be regarded as frivolous.

The case against the Authority on the discriminatory failures to promote claim was weak. The case against Butcher individually on those claims was gossamer-thin. See, e.g., Tr. 926-27 (denying Butcher's Rule 50 motion on the ground that the jury was unlikely to return a verdict for plaintiff, probably making the issue of the legal sufficiency of the proof academic). Nevertheless, bearing in mind that evidence of employment discrimination often can be hard to come by and frequently, as in this case, must be developed from hostile witnesses, the fact that a claim fails, even badly, does not necessarily mean that it lacked any basis to begin with. Although the jury and the Court are persuaded that there was no prohibited discrimination here and that Butcher in any case had nothing to do with the Authority's decisions to promote others in the instances at issue, the Court is not prepared to label this claim frivolous.

At the end of the day, then, we have the Authority seeking to recover the entire cost $43,250. As noted above, however, that figure includes also the cost of defending the Authority at those same proceedings, although it excludes the significant pretrial costs of defending Holmes and Butcher. What then is to be done?

There is no suggestion here that the case against the Authority, despite all its infirmities, was frivolous or that the Authority should recover attorney's fees. The incremental cost of defending Holmes and Butcher was marginal, as the Authority had to defend their actions in order to defend itself. A purist view therefore would conclude that the Authority, in the Court's discretion, might recover the marginal cost of defending Holmes as well as the marginal cost of defending Butcher to the substantial extent that the claims against him were frivolous. But it is impossible to make such an analysis with precision. The lack of time records precludes allocation of costs either as between pretrial and trial proceedings or among the Authority, Butcher and Holmes.


This Court is very mindful that awards of attorney's fees to prevailing defendants in civil rights litigation risks discouraging resort to the courts by people with meritorious claims. Such awards, however, are available in the Court's discretion. And this is an appropriate case in which to exercise that discretion, with moderation, in favor of the defendants.

The Court has commented elsewhere on the wholly inappropriate manner in which plaintiff's counsel conducted this case. While it is not prepared to say that there was utterly no merit to any of plaintiff's claims, there was utterly no merit to a good many of them. Moreover, the case was conducted in a way that maximized the burdens on the defendants, the Court and even the jury.

Were the records adequate to permit the purist approach mentioned above, the Court would begin with the sum of the cost of defending Home and the marginal cost to the Authority of defending Holmes and Butcher on the frivolous claims. It then would adjust that figure in light of plaintiff's status as an individual litigant and common notions of moderation. The deficiencies in the records, however, preclude that approach.

In all the circumstances, only one conclusion can be drawn with utter confidence: the entire $52,613.24 paid by the Port Authority for the defense of Mr. Home was both reasonable and wholly attributable to an entirely frivolous claim. That figure understates the total cost incurred by the Authority in consequence of plaintiff's assertion of entirely frivolous claims against Home, Holmes and Butcher. Nevertheless, taking all factors into consideration, the Court grants the Authority's motion to the extent that the Authority shall recover of plaintiff a reasonable attorney's fee in the aggregate amount of $40,000.


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