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Alkebulan v. New York City Transit Authority

United States District Court, E.D. New York

March 25, 2014



MARILYN D. GO, Magistrate Judge.

Plaintiffs Deirdre Small and Malikah Alkebulan ("plaintiffs") brought this action asserting claims for violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 ("Title VII"), and 42 U.S.C. § 1983, in addition to related claims under New York state law. In May 2012, the parties entered into a settlement agreement for monetary and injunctive relief. Plaintiffs now move for attorneys' fees for their counsel of record, Armani Baraka Scott and Lonnie Hart, and costs. The parties have consented to my hearing and determining the motion.


Plaintiffs filed their complaint on May 2, 2003, asserting claims that defendant discriminated against them in their employment on the basis of their religion and gender. Plaintiffs alleged that defendant removed them from passenger service as bus operators because they wore Muslim head coverings called khimars and refused to wear a hat to cover their khimars. Plaintiffs further alleged that male Muslim bus operators were treated differently because they were permitted to wear a head covering called a kufi on duty. Discovery proceeded under the supervision of the late A. Simon Chrein, United States Magistrate Judge, who originally set a fact discovery deadline of April 15, 2004 which was extended a number of times.

On June 3, 2004, Mr. Hart and Mr. Scott commenced an action on behalf of Gladys Muhammad (2004-cv-2294) and asserted virtually identical claims of gender and religious discrimination under federal and state law, as well as additional claims of hostile work environment and race discrimination under Title VII. A few days later, on June 7, 2004, a different attorney commenced a similar action on behalf of Stephanie Lewis (2004-cv-2331). In September 2004, the Department of Justice ("DOJ") filed an action (2004-cv-4237) for injunctive relief alleging that defendants "selectively enforced uniform policies to target Muslim and Sikh employees whose sincerely held religious beliefs and practices require that they wear religious head coverings." Complaint at ¶ 8. The government specifically alleged that plaintiffs, Ms. Muhammad, Ms. Lewis and Kevin Harrington, a member of the Sikh faith, had been involuntarily transferred from bus operator positions as a result of their refusal to comply with uniform policies that conflicted with their sincerely held religious beliefs. Id. at ¶¶ 10, 11.

In March 2005, this Court assumed responsibility for pretrial supervision of this case and the action was later formally reassigned to me in April. At a conference on April 12, 2005, this Court consolidated for discovery purposes the four actions then pending and set a new discovery schedule. Later in 2005, employees of the Sikh faith commenced two actions - the first by Mr. Harrington (2005-cv-3341), followed by a later suit brought by Inderjit Singh and four other employees (2005-cv-5477). The Harrington and Singh actions were also consolidated with the four actions. On September 7, 2005, this Court designated the DOJ action as the lead action in the consolidated cases and the DOJ attorneys apparently undertook much of the remaining discovery, except for discovery relating to the damage claims of individual plaintiffs.

Counsel from the Department of Justice appeared at a scheduled conference in this case on October 22, 2004 and all other subsequent court proceedings in the consolidated actions. The government attorneys apparently then took over primary responsibility in completing discovery and conducted over 40 depositions, including reexaminations of a few witnesses deposed earlier in this case by plaintiffs' counsel.

At a conference on October 4, 2006, the parties advised that discovery was essentially completed. Counsel also indicated that they believed that all the individual cases could be settled if the parties were successful in resolving the DOJ action. See minute entry for 10/4/06. However, no resolution could be reached and the defendant filed applications for a pre-motion conference to discuss contemplated motions for summary judgment in each of the six consolidated cases. See ct. docs. 130-135 (DOJ action).

Judge Townes later directed that briefing proceed only in the DOJ action and counsel for the United States and the defendant filed their submissions in connection with the motion on March 17, 2009. Plaintiffs provided declarations in support of the Department of Justice's opposition to defendant's motion. On September 24, 2010, the Honorable Sandra L. Townes denied defendant's motion in its entirety. See ct. doc. 221 in DOJ action.

The parties renewed efforts to settle the consolidated actions shortly thereafter. Initially holding a number of joint settlement conferences with all the parties together, this Court later separated negotiations regarding injunctive relief from discussions regarding monetary claims of the individual plaintiffs. Although consulting with other plaintiffs' counsel, counsel for the Department of Justice took the lead in negotiating the terms of a settlement for injunctive relief and this Court conducted a number of settlement conferences with counsel only in the DOJ action. After an agreement in principle was reached for injunctive relief in the DOJ action to which the plaintiffs in individual actions consented, this court referred the individual plaintiffs to court annexed mediation. The parties in this action and in the Harrington and Singh actions reached agreement on the amount of monetary relief for their claims.

On May 30, 2012, the United States filed a motion for approval of a settlement agreement providing for prospective injunctive relief and monetary relief for eight individuals. On the same date, defendant filed virtually identical stipulations of dismissal in this and the Harrington and Singh actions which provided that "Counsel for the plaintiff, if they wish, may submit a motion to the Court for an award of reasonable attorney's fees within sixty (60) days of the date that this Stipulation is entered on the Court's docket...." See ct. doc. 173; ct. doc. 93 (Harrington action). Plaintiffs followed with the instant motion for fees.

The parties in the Harrington action sought, and were granted, an extension of time to September 10, 2012 for the fee motion to explore "resolving the fee matter by agreement rather than by motion...." See letter dated July 27, 2012 of Richard Schoolman, ct. doc. 96 (Harrington action). No motion was ever filed.

As part of the settlement in this action, plaintiffs are permitted to return to passenger service. In addition, and as part of the settlement in the DOJ action, the defendant agreed to adopt and maintain new uniform policies regarding headwear for bus operators. Under the new policy, bus operators are permitted to wear a khimar that is made of fabric in the Transit Authority approved plain, solid navy blue color, without covering it with a hat or attaching any logo to it. As to monetary relief, defendant agreed to pay plaintiff Small $51, 000 and plaintiff Alkebulan $46, 000.

Throughout this litigation and before, plaintiffs' union, the TWU 100, filed grievances on their behalf challenging the same conduct that gives rise to this action. Plaintiffs' counsel participated in the hearings and mediation conferences related to those grievances.


I. Prevailing Party Status

A court may, in its discretion, award attorneys' fees to the "prevailing party" in a Title VII or section 1983 action. See 42 U.S.C. § 2000e-5(k); 42 U.S.C. § 1988. There is a "presumption that successful civil rights litigants should ordinarily recover attorneys' fees unless special circumstances would render an award unjust." Raishevich v. Foster, 247 F.3d 337, 344 (2d Cir. 2001).

Defendant argues that plaintiffs are not entitled to attorneys' fees because they are not "prevailing parties." Ordinarily, to qualify as a "prevailing party, " a party must have created a court ordered "material alteration of the legal relationship of the parties" through an enforceable judgment or consent decree. See Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 604 (2001). However, the Buckhannon analysis does not apply here since the parties expressly agreed to designate plaintiffs as "prevailing parties."

The settlement agreement should be interpreted according to principles of contract law. See Geller v. Branic Int'l Realty Corp., 212 F.3d 734, 737 (2d Cir. 2000). Courts will "give effect to the parties' intent as expressed in the unequivocal language they have employed" in the contract. See ...

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