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EVANS v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

April 29, 2003

NEVILLE EVANS, PLAINTIFF, AGAINST THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, ET AL., DEFENDANTS.


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

ORDER

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.

Facts

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.

Discussion

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 ...


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