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Juan Castillo and Ratakit Boonnak v. Time Warner Cable of New York City

April 24, 2013


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:


DOCUMENT ELECTRONICALLY FILED DOC #: _________________ - - - - - - - - - - - -


Juan Castillo and Ratakit Boonnak sued their employer, Time Warner Cable of New York City ("TWCNYC"), alleging race and national origin discrimination, retaliation and a hostile work environment under the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., New York State Human Rights Law, Executive Law §§ 290, et seq. ("NYSHRL"), and New York City Human Rights Law, Admin. Code §§ 8-101, et seq. ("NYCHRL"). The case was tried to a jury in May 2012. At the conclusion of Plaintiffs' case, the Court granted TWCNYC's Fed. R. Civ. P. Rule 50(a) motion and dismissed all nine of Boonnak's claims. With respect to Castillo, the Court submitted his nine claims to the jury for its consideration. The jury returned its decision on a special verdict form. (Dkt. No. 72.) The jury found: (1) Castillo had not proved by a preponderance of the evidence that he had experienced an adverse employment action because he was Hispanic or from the Dominican Republic; (2) While Castillo had complained about discrimination in the work place, TWCNYC had not taken any retaliatory action against him because of his complaints; (3) Castillo had experienced harassment by his supervisors because he was Hispanic or from the Dominican Republic, but the harassment he experienced was not so severe or pervasive that it interfered with his ability to work;*fn1 and (4) TWCNYC failed to prove that the harassment due to Castillo being Hispanic or from the Dominican Republic compromised no more than petty slights or trivial inconveniences.*fn2 In light of these answers, the jury turned to the issue of damages. The jury found in response to Question 6 that there was no loss of compensation. In response to Question 7(a), the jury determined that Castillo experienced mental pain and emotional distress attributable to TWCNYC's conduct. The jury rewarded Castillo $5,000 in damages (Question 7(b)), but found that TWCNYC did not act with malice or reckless indifference to the laws prohibiting unlawful discrimination, harassment and retaliation (Question 8). TWCNYC prevailed on eight of Castillo's nine claims. Castillo prevailed only on his NYCHRL hostile work environment claim, which requires a quasi-angelic work place where work is done in peace and harmony.

Undeterred by the insignificant recovery, Castillo's attorney now seeks $292,216.25 in fees (not counting fees for time spent in preparing the application), about sixty times the size of Castillo's recovery, and $5,066.28 in costs. Castillo also seeks pre-judgment interest on his award. (Dkt. 103.)


The NYCHRL provides courts with the discretion to award the "prevailing party" costs and reasonable attorneys' fees. N.Y. City Admin. Code § 8-502(f). While the recovery won was very limited, there is no doubt that Castillo was a "prevailing party," and that attorney's fees should be awarded. It should not be a windfall, but rather a reasonable fee that fairly and adequately compensates counsel relative to the results obtained. Here the issue is the reasonability of the amount of fees that Castillo claims given the very narrow, partial recovery achieved by this litigation.

Contemporaneous Time Records

TWCNYC argues that under federal precedent, Castillo's fee application should be denied in its entirety because Castillo did not submit contemporaneous records of the hours for which his attorneys now claim. Castillo counters that New York law controls, and embodies a more lenient approach that does not require contemporaneous records. But the absence of contemporaneous records is not fatal to Castillo's application, as TWCNYC contends. Attorney's fees may be awarded when a party submits records that are based on, or reconstructed from, contemporaneous records. Carrero v. New York City Housing Authority, 685 F. Supp. 904, 908-09 (S.D.N.Y. 1988) (rev'd on other grounds) (finding attorney affidavits containing reconstructed records adequate); see also Cruz v. Local Union No. 3 of the IBEW, 34 F.3d 1148, 1160 (2d Cir. 1994); Johnson v. Kay, 742 F. Supp. 822, 837 (S.D.N.Y. 1990) (finding sufficient the submission of "reconstructed timesheets . . . to clarify the contemporaneous timesheets"); Lenihan v. New York, 640 F. Supp. 822, 824 (S.D.N.Y. 1986) (permitting recovery based on typewritten transcriptions of handwritten timekeeping records).

Nuwesra, Castillo's counsel, has submitted a declaration affirming that the "fee petition submitted in this case was and continues to be based on contemporaneous records kept manually (handwritten), by the undersigned . . . ." (Nuwesra Reply Dec. ¶ 3.) Stephens' declaration also states that the hours presented in the fee petition were "derived from records contemporaneously kept by the undersigned." (Stephens Reply Dec. ¶ 13.)

This is not the case where an attorney fails to even maintain the underlying contemporaneous records. E.g., Scott v. City of New York, 643 F.3d 56, 57 (2d Cir. 2011). TWCNYC asserts that no records were kept at all based on following circumstantial evidence: the telephone records submitted by Nuwesra are vague, they document calls that TWCNYC asserts never occurred, Stephens' entries contain inaccuracies relating to the days he attended depositions and performed trial work, the start and stop times for certain entries ("In Person Conferences with Clients and/or Third Party Witnesses") conveniently land on the quarter hour, half hour, or hour, and Nuwesra provided date ranges rather than dates certain for one of his entries.

These alleged flaws do not compel granting TWCNYC's request. See David v. Sullivan, 777 F. Supp. 212, 223 (E.D.N.Y. 1991) (concluding that a limited inaccuracy in the entries and the use of date ranges for certain work did not suggest that counsel's transcriptions were not based on actual contemporaneous timesheets). Time records should be accurate, but limited or overlooked errors do not compel the conclusion that there was a complete failure to keep any records.*fn3 Further, the fact that appearances and client conferences began on the hour, half hour, or quarter hour does not strike the Court as an unusual scheduling practice, nor a cause for suspicion. Plaintiff's proposed fee schedule lists for both Nuwesra and Stephens, the dates that they performed work, the number of hours and a description of each task. These entries are sufficiently specific to satisfy the Court that they were based on contemporaneous records.

Whether the Requested Fee is Reasonable

In calculating attorney's fees, courts should multiply the reasonable number of hours worked by a reasonable hourly rate, which generates a "presumptively reasonable fee." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110, 117-18 (2d Cir. 2007), amended on other grounds, 552 F.3d 182 (2d Cir. 2008). The "presumptively reasonable fee" may be reduced to account for a plaintiff's limited success. Saunders v. City of New York, 2009 WL 4729948, at *6-7 (S.D.N.Y. 2009) (citing Barfield v. N.Y. City Health & Hosps. Corp., 537 F.3d 132, 137 (2d Cir. 2008)).

A. Reasonable Hourly Rate

A "reasonable hourly rate" is what a paying client would pay. See Arbor Hill Concerned Citizens Neighborhood Ass'n, 493 F.3d at 117-18.*fn4 Courts should examine market rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998). "[C]onsistent precedent in the Southern District reveals that rates awarded to experienced civil rights attorneys over the past ten years have ranged from $250 to $600, and that rates for associates have ranged from $200 to $350, with ...

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