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Bergerson v. New York State Office of Mental Health Central New York Psychiatric Center

February 16, 2010


The opinion of the court was delivered by: David N. Hurd United States District Judge



Plaintiff Christine A. Bergerson ("plaintiff") moves for reconsideration of the decision to bar an award of back pay related to her disparate treatment and hostile work environment claims brought against defendant New York State Office of Mental Health, Central New York Psychiatric Center ("defendant"). Plaintiff also moves for an order awarding attorneys' fees and costs. Defendant opposes both motions. The motions were considered without oral argument.


On October 19, 2009, a jury awarded plaintiff, a white female, $580,000 for her claims of disparate treatment on account of her romantic relationship with an African-American co-worker and hostile work environment in violation of Title VII of the Civil Rights Act of 1964. Defendant moved for, inter alia, orders to reduce the jury's damages award to $300,000 pursuant to 42 U.S.C. § 1981a(b)(3)(D) and to bar any award of back pay. Defendant's motion to reduce the damages award was granted as plaintiff conceded that the award exceeded the statutory cap for her Title VII claims. Defendant's motion to bar back pay was also granted based upon the determination that plaintiff had already been made whole due to the substantial damages award.


A. Plaintiff's Motion for Reconsideration

A court may justifiably reconsider its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent manifest injustice. Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864 (1983)). The issue is therefore whether the prior decision to bar an award of back pay constituted a clear error of law as neither party argues that there has been a change in the controlling law or makes a showing of additional evidence that was not previously available. To the extent that plaintiff moves for reconsideration of any decision to award front pay and/or reinstatement, that issue was not previously decided as the prior decision only considered whether an award of back pay was justified. (See Order, Dkt. No., 66.) The prior decision was limited to the back pay issue because defendant's post-trial motion did not seek any order with respect to front pay or reinstatement. (See Defs.' Mem. of Law in Supp. of Mot. for J. as a Matter of Law, Dkt. No. 59-3, 11.)

The decision to award back pay is "measured against the purposes which inform Title VII." Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 95 S.Ct. 2362, 2371 (1975). As the Supreme Court explained, the primary objective of Title VII is prophylactic in nature because the statutory scheme was intended to eliminate past obstacles to workplace equality. Id. (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 853 (1971)). Unlike injunctive relief, a potential back pay award provides a strong financial incentive for employers to continually evaluate the legality of their employment practices. Albemarle, 422 U.S. at 417-18, 95 S.Ct. at 2371-72 (quoting United States v. N.L. Indus., Inc., 479 F.2d 354, 379 (8th Cir. 1973)). In addition to curbing discriminatory employment conditions, Title VII aims to make a plaintiff whole for injuries that are the result of a violation of the statute. Albemarle, 422 U.S. at 418, 95 S.Ct. at 2372. Although a trial court has discretion whether to award back pay, its reasons must be explained in the event back pay is denied. See Id. at 421-22 n.14, 95 S.Ct. at 2373 n.14; Carrero v. New York City Hous. Auth., 890 F.2d 569, 580 (2d Cir. 1989) (citing Ford Motor Co. v. EEOC, 458 U.S. 219, 226, 102 S.Ct. 3057, 3062 (1982)).

Upon reconsideration of the denial of backpay, plaintiff's substantial damages award satisfies both of the objectives of Title VII. Instead of merely having to comply with an injunctive order prohibiting racial discrimination and hostility in the work environment, defendant must pay plaintiff $300,000 in compensatory damages as a result of its unlawful employment practices. There is little question that this sizeable award will compel defendant "to self-examine and to self-evaluate their employment practices...." Albemarle, 422 U.S. at 418, 95 S.Ct. at 2372. Additionally, the magnitude of the jury's award ensures that plaintiff will be made whole for her injuries, including any lost wages, pain, suffering, or emotional distress. Although plaintiff correctly argues that the jury did not consider her lost wages, the damages award nonetheless returns plaintiff to the position she would find herself had the violations never occurred. Therefore, plaintiff is not entitled to an award of back pay.

B. Plaintiff's Motion for Attorneys' Fees and Costs

Plaintiff seeks fees and costs for her two trial attorneys, Ms. A.J. Bosman, Esq. and Mr. Norman P. Deep, Esq., and her former attorney, Mr. Paul N. Cisternino, Esq. For their legal services and reimbursement of their expenses, Ms. Bosman, Mr. Deep, and Mr. Cisternino submit costs of $67,986.10, $24,741.00, and $71,762.60, respectively.

Costs other than attorney's fees "should be allowed to the prevailing party." Fed. R. Civ. P. 54(d). Pursuant to 42 U.S.C. § 1988, attorney's fees may be awarded to a prevailing party in, inter alia, civil rights litigation as part of the costs imposed.

Attorneys' fees are awarded by determining a presumptively reasonable fee, reached by multiplying a reasonable hourly rate by the number of reasonably expended hours. See Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009). The reasonable hourly rate should be "'what a reasonable, paying client would be willing to pay' given that such a party wishes 'to spend the minimum necessary to litigate the case effectively.'" Id. (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F3d. 110, 112, 118 (2d Cir. 2007), amended on other grounds by 522 F.3d 182 (2d Cir. 2008)). This Circuit's "forum rule" generally requires use of "the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee." Simmons, 575 F.3d at 174. (internal quotations omitted); Picinich v. United Parcel Serv., No. 5:01-CV-01868, 2008 WL 1766746, at *2 (N.D.N.Y. Apr. 14, 2008) (McCurn, Sr. ...

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