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Mugavero v. Arms Acres

February 9, 2010


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


In this action, Plaintiff Leslie Mugavero sought relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq. ("Title VII") and the New York law for alleged retaliation by her former employer, Arms Acres, Inc. ("Arms Acres") and her former supervisor, Dr. Frederick Hesse. (Cmplt. Counts I, II, III, IV) Mugavero alleged that after she supported a co-worker's sexual harassment complaint, Defendants retaliated against her by, inter alia, issuing her written disciplinary warnings, reporting her to New York State's Office of Professional Discipline for alleged professional misconduct, and ultimately terminating her employment. (Id.) Following an eight-day trial, a jury rendered a verdict in Mugavero's favor against both defendants, and awarded Mugavero a total of $764,183 in compensatory damages and $350,000 in punitive damages. In a January 14, 2010 memorandum opinion and order, this Court denied Defendants' motions for judgment as a matter or law and for a new trial. Now pending before the Court is Plaintiff's motion for an attorneys' fee award against Defendant Arms Acres, Inc., for pre-judgment and post-verdict interest, and for costs. Plaintiff's motion is GRANTED to the extent stated below.



Defendant Arms Acres is a drug and alcohol rehabilitation facility. (Tr. 97:20-23) During the period relevant to this action, Mugavero was employed at Arms Acres as a nurse practitioner and was supervised by Defendant Hesse, who was Arms Acres' medical director. (Tr. 68:21-25, 69:14-16, 299:20-300:10, 302:6-9) Mugavero asserted that Hesse began retaliating against her in a variety of ways after she informed him in late April 2002 that Marie McArdle, an Arms Acres nurse, was going to make a sexual harassment complaint against the facility's Director of Psychiatry, Dr. Omar Gutierrez -- a complaint that Mugavero formally supported with a written statement on May 1, 2002. (Tr. 108:21-109:21, 687:17-688:2, 950:7-10, 952:2-25)

The Court granted Defendants summary judgment on certain of Mugavero's claims in March 2009. Mugavero v. Arms Acres, Inc. et al., No. 03-Civ.-5724(PGG), 2009 WL 890063 (S.D.N.Y. Mar. 31, 2009). Plaintiff then proceeded to trial on her claims that the following actions constituted unlawful retaliation under federal and New York state law: (1) the removal of her on-call duties on the evening of April 24, 2002; (2) a May 2002 written warning; (3) an August 2002 written warning; (4) Hesse's request that the OPD investigate her for professional misconduct; (5) Arms Acres placing her on administrative leave on October 1, 2002; and (6) Arms Acres terminating her employment effective October 25, 2002.*fn1 (See Tr. 154:25-155:18, 191:21-192:2, 585:21- 24, 1966:6-15; JX 60 (first written warning); JX 62 (second written warning); JX 109 (written complaint to OPD))

The jury found that Mugavero proved all elements of her retaliation claim against both defendants with respect to each of the alleged adverse actions. (Tr. 2016:16-2017:14, 2018:12-2019:3, 2019:20-2020:16) It also found that Arms Acres, but not Hesse, had proven an affirmative defense with respect to the removal of Mugavero's on-call duties and the two written warnings -- i.e., Arms Acres had proven that it would have taken the adverse actions regardless of any retaliatory motive. (Tr. 2017:15-2018:11, 2019:4-2019:19) The jury found that Hesse was directly liable under state law for the first four adverse actions and liable as an aider and abettor under state law for Mugavero being placed on administrative leave and for the termination of her employment. (Tr. 2018:12-2019:3, 2019:20-2020:16)

The jury awarded Mugavero the following compensatory damages for emotional distress relating to three adverse actions: $75,000 for Hesse's request that the OPD investigate Mugavero; $75,000 for Mugavero being placed on administrative leave; and $100,000 for the termination of her employment. (Tr. 2021:4-2021:23) The jury also awarded Mugavero $468,183 in lost wages and $46,000 in lost fringe benefits. (Tr. 2021:24-2022:2) Finally, the jury awarded $350,000 in punitive damages with respect to the OPD investigation claim. (Tr. 2022:7-2022:25)

In its January 14, 2010 memorandum opinion and order, this Court vacated (1) the award of $75,000 for emotional distress associated with Mugavero being placed on administrative leave; (2) a portion of the lost wages award for periods of time Mugavero was unable or unwilling to work; and (3) a substantial portion of the fringe benefits award on the ground that Mugavero had not offered sufficient documentation concerning her entitlement to such benefits. The Court also reduced the punitive damages award to $200,000 as required by Title VII's statutory cap, and granted Defendants' motion for discovery sanctions related to Plaintiff's improper withholding of certain documents during discovery. Defendants' post-trial motions for judgment as a matter of law and for a new trial were otherwise denied.

Plaintiff has been represented throughout this litigation by Paula Johnson Kelly of the Law Office of Robert David Goodstein. (Kelly Aff. ¶ 1,11) The fee application seeks $593,074.85 in fees for Ms. Kelly's work over the past seven years; $1,833.33 for the work of attorney Robert David Goodstein; $1,333.33 for the work of attorney Eileen West; $14,325 for the work of paralegal Michele R. Kelly; and $4,050 for law student/paralegal Arthur O. Luissaint. (Kelly Reply Aff. at 6) Plaintiff also requests pre-judgment interest on her lost wages award in the amount of $110,760.93 and post-judgment interest, including interest on the attorneys' fee and costs award, until the judgment is paid at a weekly compounded rate of 0.47%. (Id. at 7) Finally, Plaintiff requests $13,329.97 for disbursements and costs associated with this litigation. (Id. at 8)


Plaintiff supplies substantial documentation to support her request for attorneys' fees and costs, including itemized records of the hours spent on this case by the attorneys and paralegals (Kelly Aff. at Ex. 3, 4, 5, 6, 12), biographical information for the attorneys requesting fees (Kelly Aff. at Ex. 8), a detailed summary of Ms. Kelly's qualifications and expertise (Kelly Aff.), evidence of the attorneys' standard hourly rate billed to paying clients (Kelly Aff. at Ex. 2), and affirmations from experienced civil rights attorneys in Ms. Kelly's geographic area supporting the reasonableness of the fees charged in this case (Kelly Aff. at Ex. 9).

Plaintiff requests attorneys' fees at rates of $350 per hour for Ms. Kelly, $400 per hour for attorneys Eileen West and Robert D. Goodstein, $100 and $75 for the work of paralegal Michele R. Kelly and law student Arthur O. Luissaint, respectively, and $175 per hour for Ms. Kelly's travel time associated with the instant litigation for a total fee request of $614,616.51.

A. Legal Standard for Award of Attorneys' Fees

"[T]he district court has wide discretion in determining the amount of attorney's fees to award" a "prevailing party" in a civil rights action. Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992); 42 U.S.C. § 1988(b) (governing attorneys' fees in proceedings in vindication of civil rights).*fn2 A "prevailing party" is any party to an action who "succeeds on any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing suit." Bridges v. Eastman Kodak Co., 102 F.3d 56, 58 (2d Cir. 1996) (internal quotation omitted). See also Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790-91 (1989) (holding that a "prevailing party" need not have succeeded on the primary issue in the case). "The question of whether a plaintiff is a 'prevailing party' within the meaning of the fee-shifting statutes is a threshold question that is separate from the question of the degree to which the plaintiff prevailed." LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir. 1998). Here, there is no dispute that Plaintiff is a prevailing party because she obtained a verdict in her favor on the Title VII retaliation claim she brought to trial, and the jury awarded her over $1 million in damages. The threshold requirement is therefore met, and the key remaining issue is what fee is "reasonable."

The starting point for an award of attorneys fees is the "presumptively reasonable fee." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 183 (2d Cir. 2008). This "initial estimate" is calculated by multiplying "the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate." Hensley, 461 U.S. at 433. In exercising its discretion, the Court must "bear in mind all of the case-specific variables that we and other courts have identified as relevant," including "[t]he reasonable hourly rate . . . a paying client would be willing to pay," "bear[ing] in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Arbor Hill, 522 F.3d at 190. Courts also consider "the complexity and difficulty of the case; . . . the resources required to prosecute the case effectively. . . , the timing demands of the case, . . . and other returns (such as reputation, etc.) that an attorney might expect from the representation." Id. at 184 (citing the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974))

"Following the determination of the presumptively reasonable fee, the court must then consider whether an upward or downward adjustment of the fee is warranted based on factors such as the extent of plaintiff's success in the litigation."

Robinson, 2009 WL 3109846, at *7. Work on ultimately unsuccessful claims is compensable as long as those claims are not "wholly unrelated" to the claims plaintiff succeeded on at trial. Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994) (quoting Grant, 973 F.2d at 101). A downward adjustment may still be appropriate, however, when a plaintiff "succeeded on only some of his claims for relief." Hensley, 461 U.S. at 434. Where the lines become blurry a court need not "become enmeshed in a meticulous analysis of every detailed facet of the professional representation" to determine the proper award, Seigal v. Merrick, 619 F.2d 160, 164 n. 8 (2d Cir. 1980), nor should "[a] request for attorney's fees . . . result in a second major litigation." Hensley, 461 U.S. at 437. The burden is ultimately on the applicant to demonstrate the reasonableness of the hours spent and rates asserted. See id.

While a court may adjust the presumptively reasonable fee amount, there remains throughout the fee determination process "[a] strong presumption that [this initial calculation] . . . represents a 'reasonable' fee." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986); accordLunday, 42 F.3d at 134. See also Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d. Cir. 1997) ("if private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with ...

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