United States District Court, S.D. New York
January 9, 2004.
JOHN KUPER, PLAINTIFF,
EMPIRE BLUE CROSS AND BLUE SHIELD DEFENDANT
The opinion of the court was delivered by: JAMES GWIN, District Judge
OPINION, MEMORANDUM, AND ORDER
On October 29, 2002, a jury found that Defendant Empire Blue Cross and
Blue Shield ("Defendant" and "BCBS") had wrongfully discharged Plaintiff
John Kuper ("Plaintiff) from his job on the basis of his hearing loss
disability, in violation of the Americans with Disabilities Act of 1990
("ADA"), 42 U.S.C. § 12102, et seq., and the New York State Human
Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, et seq. After a five-day
jury trial, the jury awarded Plaintiff a combined total of $500,000,
including $116,378.00 in back pay, $121,122.00 in front pay, $62,500.00
in compensatory damages, and $200,000.00 in punitive damages.
On November 12, 2002, Plaintiff Kuper moved the Court to amend the
judgment to include prejudgment interest on the back pay and compensatory
damages awards. FED. R. Civ. P. 59(e). Plaintiff also sought an award of
attorneys' fees and costs pursuant to the ADA, 42 U.S.C. § 12205, and
the Civil Rights Attorneys' Fees Award Act of 1976, 42 U.S.C. § 1988.
On December 18, 2003, Magistrate Judge Michael H. Dolinger issued a
detailed Report and Recommendation on the matter. The Magistrate Judge
(1) that the Court award prejudgment interest on
plaintiffs back pay at 4.304 percent, compounded
annually and with the loss distributed equally over
the back pay period; (2) that prejudgment interest on
plaintiffs compensatory damages award be denied, and
(3) that attorneys' fees and costs be awarded to
plaintiff in the amounts of $395,605.00 and
(Report and Recommendation of 12/18/03 at 2).
Defendant BCBS objected to the Report and Recommendation on January 5,
2004. Defendant argued that Plaintiff was not entitled to this additional
recovery because, allegedly, Kuper was not a "prevailing party" in this
action. On January 7, 2004, Plaintiff Kuper filed a reply. A bit
flabbergasted, Plaintiff asserted that "it is difficult to conceive of a
weaker and in fact more illusory, if not outright bizarre, basis for
opposing the R&R . . ." (Def. Reply of 1/7/04 at 2).
After conducting an independent review of the matter, this Court
adopts, in full, the December 18, 2003 Report and Recommendation.
Defendant's objections to the Magistrate Judge's recommendations are not
meritorious. "To qualify as a prevailing party, a civil rights plaintiff
must . . . obtain an enforceable judgment against the defendant from whom
fees are sought . . ." Farrar v. Hobby, 506 U.S. 102, 111-12 (1992);
Banner v. Guccione, 178 F.3d 581, 593 (2d Cir. 1999) In the present
matter, a jury of their peers found Defendant BCBS liable under the ADA
and the NYSHRL. The $500,000 jury award is an enforceable judgment.
Defendant's argument that Plaintiff somehow is not the prevailing party
borders on absurdity.
Now, turning our attention to the substance of the motion, the Court
examines whether Plaintiff should receive (i) prejudgment interest on the
back pay award, (ii) prejudgment interest on the compensatory damages
award, and (iii) attorneys' fees and costs. The Court will examine each
of these claims in turn.
First, the decision to award prejudgment interest on back pay generally
is a matter left to the
discretion of the presiding court. However, "[t]o the extent . . . that
the damages awarded to the plaintiff represent compensation for lost
wages, it is ordinarily an abuse of discretion not to include
pre-judgment interest." Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371, 275 (2d
Cir. 2000) (internal quotations omitted). In the present matter, the jury
determined that plaintiff wrongfully lost wages from the date of his
discharge, July 16, 1998, to the date judgment was entered, October 29,
2002. These back wages represent a quantifiable loss not only in wages,
but also in interest on those wages. Thus, the Court hereby orders that
Defendant BCBS pay prejudgment interest on the back pay award. Defendant
BCBS does not dispute the interest rate calculation for the award of
prejudgment interest. Thus, the Court orders that prejudgment interest on
plaintiffs back pay award be awarded at 4.304 percent, compounded annually
and with the loss distributed equally over the back pay period.
Second, the award of prejudgment interest for compensatory damages also
falls within the discretion of this Court.*fn1 Plaintiff Kuper was
awarded $62,500.00 for mental anguish. Plaintiff now requests prejudgment
interest on that award. However, the majority of New York federal courts
have declined to grant prejudgment interest on compensatory damages for
mental anguish on the ground that such an award is not necessary to make
the plaintiff whole. See e.g., Zerilli v. New York City Transit Auth.,
973 F. Supp. 311, 317 (E.D.N.Y. 1997). In the present matter, this Court
similarly finds that an award of prejudgment interest as to Plaintiff
Kuper's mental anguish award is not necessary to make Plaintiff whole.
Thus, the Court denies Plaintiffs request for prejudgment interest as to
Third, it is well-settled law that, under the ADA, a court may award
"the prevailing party, other than the United States, reasonable
attorneys' fees." 42 U.S.C. § 1988(b); 42 U.S.C. § 12205.
Indeed, a presumption exists that successful litigants in ADA cases
"should ordinarily recover attorneys' fees . . ." Raishevic v. Foster,
247 F.3d 337, 344 (2d Cir. 2001) (citing Kerr v. Quinn, 692 F.2d 875, 877
(2d Cir. 1982)). Given that Defendant BCBS does not present any sound
arguments to rebut this presumption, the Court awards attorneys' fees and
costs in the present case. Finding the Magistrate Judge's recommendation
to be reasonable, the Court awards $395,605.00 for attorneys' fees and
$7,230.50 for attorneys' costs. Defendant does not contest the
reasonableness of this calculation.
In sum, the Court awards Plaintiff Kuper prejudgment interest on back
pay as well as attorneys' fees and costs However, the Court denies
Plaintiffs request for prejudgment interest on the compensatory damages
award The Court herein adopts in full the December 18, 2003, Report and
IT IS SO ORDERED.