Presumey v. Education et al

Filing 116

Memorandum of Law re: damages. See attached. Signed by Judge Donna F. Martinez on 6/5/2018.(Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ELIZABETH PRESUMEY,

:
:
:
:
:
:
:
:
:
:

Plaintiff,
v.
TOWN OF GREENWICH
BOARD OF EDUCATION,
Defendant.

No. 3:15cv278(DFM)

MEMORANDUM OF DECISION
The plaintiff, Elisabeth Presumey, brought this action against
her former employer, the Board of Education for the Town of
Greenwich, Connecticut, alleging that it failed to accommodate her
disability in violation of the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101 et seq. and Connecticut Fair Employment
Practices Act ("CFEPA"), Conn. Gen. Stat. § 46a-51 et seq.
#55.)

(Doc.

The parties agreed on the record in open court to waive a

jury claim as to damages and instead have the court determine any
and all monetary damages. (Doc. #77 at 140, 143.)

After a jury

returned a verdict in the plaintiff's favor as to liability, the
court held an evidentiary hearing on May 3, 2018 on damages and
attorney's fees.

The following are the court's findings of fact

and conclusions of law.
I.

Procedural Background
From August 2008 until December 2012, the plaintiff was

employed by the defendant as a professional assistant working with
special education students.

In November 2011, she injured her

shoulder on the job and thereafter requested that she be placed on
light duty pursuant to her physician's instructions. The defendant
responded that it could not accommodate the plaintiff because there
was no light duty work assignment in her job class.
was placed on leave.

The plaintiff

The defendant terminated the plaintiff's

employment effective December 3, 2012 on the grounds that she
"ha[s] medical restrictions rendering [her] unable to perform the
core functions of [her] job."

(Pl's Ex. 36, Termination letter.)

The plaintiff brought suit, alleging that the defendant failed to
provide her a reasonable accommodation for her disability.1
After the jury returned a verdict in favor of the plaintiff,
the court denied the defendant's post-trial motions for judgment as
a matter of law and for a new trial.
hearing on damages was scheduled.

(Doc. #82.)

(Doc. #83.)

An evidentiary

The court ordered

the parties to file a joint pre-hearing memorandum setting forth
the plaintiff's damages analysis; the parties' proposed findings of
fact and conclusions of law; the parties' witnesses and exhibits;
and an affidavit regarding plaintiff's request for attorney's fees.
(Doc. #83.) After the evidentiary hearing, the parties filed posthearing memoranda.

(Doc. ##114, 115.)

1

Initially the plaintiff also alleged race, color and national
origin discrimination and named her union as a defendant in
addition to her employer.
She subsequently "stipulate[d]" to
summary judgment in favor of the union. (Doc. #44.) As to the
Board of Education, the plaintiff withdrew all claims except
disability discrimination. (Doc. #55.)
2

II.

Discussion
The plaintiff seeks back pay, front pay, compensatory damages,

and attorney's fees.2
A.

Back Pay

The plaintiff requests an award of back pay from December 3,
2012 through June 2018, the anticipated date of judgment, totaling
$162,241.92 comprised of wages during the school year; wages from
summer school; and contributions to her Health Savings Account.
(Doc. #114 at 4-5.)
"An award of backpay is the rule, not the exception." Carrero
v. New York City Hous. Auth., 890 F.2d 569, 580 (2d Cir. 1989).
The purpose of back pay is to make a plaintiff whole, that is, to
"completely redress the economic injury the plaintiff has suffered
as a result of discrimination." Saulpaugh v. Monroe Cmty. Hosp., 4
F.3d 134, 145 (2d Cir. 1993). "This award should therefore consist
of lost salary, including anticipated raises, and fringe benefits."
Id.

See Bergerson v. New York State Office of Mental Health, 652

F.3d 277, 287 (2d Cir. 2011)("[A]n award of backpay includes what
the

employee

himself

would

have

2

earned

had

he

not

been

"The ADA provides that a successful plaintiff shall have
available the same remedies that would be available to a plaintiff
pursuant to Title VII." Tse v. New York Univ., 190 F. Supp. 3d
366, 371 (S.D.N.Y. 2016). See Grzelewski v. M&C Hotel Interests,
Inc., No. 17CV884V, 2018 WL 474795, at *4 (W.D.N.Y. Jan. 2, 2018)
("The ADA incorporates the powers and remedies of Title VII, see 42
U.S.C. §§ 12117(a), 12111(7) (citing 'powers, remedies, and
procedures' of 42 U.S.C. §§ 2000e-5(f)(1), (3), 2000e(g), (h) as
the powers, remedies and procedures under the ADA).")
3

discharged.")
B.

Mitigation

The defendant argues that the plaintiff should be awarded
"only a nominal back pay amount" because she "failed to mitigate
her damages."

(Doc. #107 at 8.)

The defendant challenges the

efficacy of the plaintiff's search and also asserts that in light
of the duration of the plaintiff's employment with prior employers,
she would not have remained with the defendant for this full period
of time.
A "prevailing plaintiff in an employment discrimination action
has a duty to mitigate h[er] damages by exercising reasonable
diligence in seeking substitute employment that is substantially
similar to h[er] former employment or risk having the amount of any
damages awarded reduced by the amount that could have been earned."
Evarts v. Quinnipiac Univ., No. 3:15CV1509(CSH), 2017 WL 6453396,
at *3 (D. Conn. Dec. 10, 2017).

See Greenway v. Buffalo Hilton

Hotel, 143 F.3d 47, 53 (2d Cir. 1998)("Victims of employment
discrimination are required to mitigate their damages.")

That

said, "[t]he wrongfully terminated employee's duty to mitigate is
minimal."

Ramey

v.

Dist.

141,

Int'l

Assoc.

of

Machinists

&

Aerospace Workers, No. 99-CV-4341(BMC)(RML), 2010 WL 3619708, at *4
(E.D.N.Y. Sept. 10, 2010).

Although it is the plaintiff's duty to

mitigate, "[d]efendant, as plaintiff's former employer, bears the
burden of demonstrating that [the] plaintiff has failed to satisfy

4

the duty to mitigate."

Bailey v. Grocery Haulers, Inc., No.

3:15CV1835(JBA), 2017 WL 4536111, at *8 (D. Conn. Oct. 11, 2017).
In determining whether the employer has met that burden, the court
asks whether the plaintiff "use[d] reasonable diligence in finding
other suitable employment, which need not be comparable to their
previous positions." Greenway, 143 F.3d at 53 (internal quotation
marks omitted).

"The ultimate question is whether the plaintiff

acted reasonably in attempting to gain other employment or in
rejecting proffered employment." Hawkins v. 1115 Legal Serv. Care,
163

F.3d

684,

695

(2d

Cir.

1998)

(internal

quotation

marks

omitted). "This obligation is not onerous and does not require her
to be successful." Id.
The plaintiff testified that after her termination in December
2012, she applied for "anything" and "everything" she could find.
(Tr. 5/3/18 at 30.)
classifieds.

She searched for jobs online and in the

(Tr. 5/3/18 at 30.)

She applied online and sent out

resumes and cover letters. It is undisputed that in June 2016, she
began receiving Social Security Disability benefits and did not
look for employment after that.
The

court

finds

that

(Doc. #114 at 2.)

the

plaintiff

acted

reasonably

in

attempting to gain employment after her termination until June
2016.

Although the defendant asserts that the plaintiff "fail[ed]

to mitigate by not finding a single job of any kind from December
2012 to June 2016" (doc. #115 at 11), "[a] backpay claimant's duty

5

to mitigate her damages by using reasonable diligence in finding
other suitable employment is not onerous, and does not require her
to be successful in mitigation. . . . Any doubts related to such
proof are to be resolved against the employer."

G & T Terminal

Packaging Co. Inc. v. N.L.R.B., 459 F. App'x 19, 23 (2d Cir. 2012).
See Vera v. Alstom Powers, Inc., 189 F. Supp.3d 360, 385 (D. Conn.
2016) ("[Defendant] cites no authority, and the Court found none,
standing for the proposition that a years-long failure to find
comparable employment compels a finding of a failure to search
reasonably.")
That

said,

in

June

2016

the

plaintiff

began

disability benefits and stopped looking for work.
2.)

collecting

(Doc. #114 at

As a result, her back pay damages are cut off at this

juncture.

See Dominic v. Consolidated Edison Co. of New York,

Inc., 822 F.2d 1249, 1258 (2d Cir. 1987) ("[the plaintiff's]
back-pay award would have been cut off or reduced at the time of
his

failure

to

mitigate");

DeMarco

v.

Ben

Krupinski

Gen.

Contractor, Inc., No. 12-CV-0573 (SJF)(ARL), 2014 WL 3531276, at
*14 (E.D.N.Y. July 14, 2014)(plaintiff's back pay damages cutoff as
of November 2011 where "plaintiff made no reasonable efforts to
seek comparable employment after [that point in time]"); Hopkins v.
New England Health Care Employees Welfare Fund, 985 F. Supp. 2d
240,

262

(D.

Conn.

2013)

(a

plaintiff

must

"use

reasonable

diligence in finding other suitable employment." . . . In no way

6

can

social

security

.

.

.

payments

be

construed

to

be

'employment.'")
The plaintiff is entitled to $102,795.01 as follows:
School year

Wages3

Dec 2012-2013

$17,491.91

2013-2014

$27,984.15

2014-2015

$27,984.15

2015-2016

$29,334.80
$102,795.01

C.

Summer School

The plaintiff also seeks summer school wages.

The plaintiff

did not claim these damages in the damage analysis set forth in her
pre-hearing submission.

See doc. #107.

For the first time at her

evidentiary hearing, she testified that in addition to her normal
schedule during the school year, she worked for the defendant
"every summer" for 6 weeks for which she was paid $500 per week.4
(Tr. 5/3/18 at 23.)

The defendant argues that the court should not

award any damages for work at summer school because the plaintiff's
testimony is "false."

(Doc. #115 at 5.)

3

The parties stipulated to the amount of wages per school
year, which are set forth in plaintiff's Exhibit 1 which was
admitted by agreement. (Tr. 5/3/18 at 15; see also doc. #115 at 4.)
4

The plaintiff's assertion in her post-hearing submission that
she "would have earned $5000 per year" from working at the
defendant's summer school program is unsupported by her testimony.
(Doc. #114 at 4.)
7

"In order to recover damages, a claimant must present evidence
that provides the finder of fact with a reasonable basis upon which
to calculate the amount of damages. . . . [T]he [factfinder] is not
allowed to base its award on speculation or guesswork." Bargham v.
Wal-Mart Stores, Inc., No. 3:12CV01361(VAB), 2017 WL 3736702, at *5
(D. Conn. Aug. 30. 2017) (internal quotation mark and citation
omitted).

See also Tse v. UBS Fin. Servs., Inc., 568 F. Supp. 2d

274, 308 (S.D.N.Y. 2008) ("[I]t is plaintiff's burden to present a
non-speculative basis for determining economic damages.")
The court finds that the plaintiff has not met her burden.

In

contrast to her claim for wages during the school academic year,
the plaintiff did not offer any documentation in support of her
wage claim for summer school.

Furthermore, during the liability

portion of the trial, she never mentioned that she worked during
the summer even though it would have been relevant.5

In addition,

the plaintiff was on leave during the summer of 2012 due to her
injury so could not have worked at summer school.
On

this

record,

the

plaintiff

has

failed

to

(Pl's Ex. 32.)
establish

an

entitlement to lost wages from working at summer school.

5

During trial, the plaintiff testified that the defendant
previously had accommodated her by putting her on light duty. She
said that the defendant put her on light duty in May 2009 through
"the end of the school year" in 2009 and that she "was still on
light duty" when she "started" that fall. (Tr. 5/16/17 at 37.)
8

D.

Unemployment Compensation

The defendant contends that the court should deduct the
plaintiff's unemployment compensation from the plaintiff's back pay
award.
After her termination, the plaintiff received unemployment
compensation totaling $12,274. (Doc. #114 at 4; doc. #115 at 4.)
Of this amount, the defendant paid the Connecticut Department of
Labor $6578

toward

the

plaintiff's

unemployment

compensation.

(Def's ex. 601.)
"[T]he decision whether or not to deduct unemployment benefits
from a Title VII back pay award rests in the sound discretion of
the district court." Dailey v. Societe Generale, 108 F.3d 451, 460
(2d Cir. 1997).

Many courts in this Circuit have exercised their

discretion to decline to deduct unemployment compensation from
calculations of back pay.

See Tse v. New York Univ., 190 F. Supp.

3d 366, 373 (S.D.N.Y. 2016) (collecting cases).

However, "where

the payment of unemployment benefits is not from a 'collateral'
source such as a state-run unemployment insurance fund, but instead
is paid directly (or 'effectively') by the employer itself, several
courts have declined to apply the collateral source rule." Sass v.
MTA Bus Co., 6 F. Supp. 3d 238, 255–56 (E.D.N.Y. 2014)(collecting
cases).

See also Wat Bey v. City of New York, No. 01 CIV. 09406

(AJN), 2013 WL 12082743, at *24 (S.D.N.Y. Sept. 4, 2013) ("If the
defendant was the source of the collateral benefit, however, courts

9

have treated the collateral source payment as an element of damages
that has already been paid."), aff'd sub nom. Rivera v. City of New
York, 594 F. App'x 2 (2d Cir. 2014); Norris v. New York City Coll.
of Tech., No. 07–CV–853, 2009 WL 3841970, at *1–2 (E.D.N.Y. Nov.
18, 2009) ("the rationale for the collateral source rule disappears
when the employer itself is the source of the benefit — that is,
where the source of the benefit is not 'collateral.'")
Consistent with this authority, of the $12,274 in unemployment
benefits the plaintiff received, $6578 is offset as damages that
the defendant has already paid.6

The court declines to offset the

back pay award by the remaining amount of $5696 in unemployment
compensation.
943

F.2d

See Promisel v. First Am. Artificial Flowers, Inc.,

251,

258

(2d

Cir.

1991)("[w]hile

collateral

source

payments do represent an additional benefit to the plaintiff, . .
. 'as between the employer, whose action caused the discharge, and
the employee, who may have experienced other noncompensable losses,
it is fitting that the burden be placed on the employer'");
Becerril

v.

E.

10283(PAC)(KNF),
2009)("Since

the

Bronx
2009

NAACP
WL

Child

2611950,

[defendant]

Dev.
at

*4

terminated

Ctr.,

No.

(S.D.N.Y.
[the

08

CIV.

Aug.

18,

plaintiff's]

employment wrongfully, it should not receive the benefit of having

6

The defendant, without explanation, deducts both $12,274 and
$6578 from the back pay award. See doc. #115 at 4 fn 3. The
testimony at the hearing indicates, however, that the total amount
of unemployment benefits paid to the plaintiff was $12,274. (Tr.
5/3/18 at 24, 64).
10

the plaintiff's unemployment compensation deducted from her total
back pay award.")
E.

Health Savings Account Contributions

The plaintiff seeks to recover contributions to her Health
Savings Account ("HSA") as of 2014.

(Doc. #107 at 2.)

The

plaintiff testified that the defendant contributed $2500 per year
to her HSA.

(Doc. #112, tr. 5/3/18 at 25.)

dispute this claimed element of damages.

The defendant does not

See doc. #115 at 4.

The

plaintiff is awarded $7500 for HSA contributions.7
F.

Front Pay

The plaintiff requests an award of front pay in the amount of
$390,168.

(Doc. #114 at 6.)

The plaintiff asserts that she is

capable of performing her job with an accommodation and therefore
"the defendant remains obligated to compensate her for her lost
wages for the entirety of her prospective working life."
#114 at 2.)

(Doc.

She maintains that had the defendant not terminated

her employment, she would have "continue[d] working to the end of
her life" and her "projected life expectancy," according to the
Social Security Administration life table, is 24 years.

(Pl's ex.

3; doc. #114 at 5-6.)
Front pay is a remedy "awarded at the discretion of a district

7

$2500 per year for the years of 2014, 2015 and 2016.
11

court where reinstatement is inappropriate8 and the plaintiff has
been unable to find another job."

Bergerson v. New York State

Office of Mental Health, 652 F.3d 277, 286 (2d Cir. 2011).

"An

award of front pay is discretionary, and if a district court makes
a nonerroneous 'specific finding' that a plaintiff has already been
made whole, no abuse of discretion can be found in denying front
pay."

Id. at 287–88.

"As with an award of back pay, a plaintiff seeking an award of
front pay

'has

the

duty

to

exercise

reasonable

diligence

in

mitigating damages by seeking alternative employment.'" DeMarco v.
Ben Krupinski Gen. Contractor, Inc., No. 12-CV-0573, 2014 WL
3531276, at *16 (E.D.N.Y. July 14, 2014) (quoting Reed v. A.W.
Lawrence & Co., Inc., 95 F.3d 1170, 1182 (2d Cir. 1996)).

A

"failure to mitigate deprives [the plaintiff] of any entitlement to
receive an award for front pay . . . ."

Greenway v. Buffalo Hilton

Hotel, 143 F.3d 47, 55 (2d Cir. 1998).

Here, because the plaintiff

stopped trying to find any employment after June 2016 when she
began collecting Social Security Disability benefits, her request
for front pay is foreclosed.

See Sharkey v. J.P. Morgan Chase &

Co., No. 10CV3824 (DLC), 2018 WL 1229831, at *13 (S.D.N.Y. Mar. 5,
2018) (because plaintiff "removed herself from the workforce, front
pay is . . . unavailable."); Clark v. Gotham Lasik, PLLC, No. 11

8

The plaintiff has
offered, reinstatement.

not

requested,
12

nor

has

the

defendant

CIV.

01307,

2013

WL

4437220,

at

*5

(S.D.N.Y.

Aug.

20,

2013)(plaintiff not entitled to front pay where she "proffered no
evidence" of attempts to secure employment.)
G.

Compensatory Damages

The plaintiff seeks an award of compensatory damages of
$165,0009 for emotional distress.

(Doc. #114 at 6.)

At the time she was terminated, the plaintiff was a single
parent with a minor child.

(Tr. 5/3/18 at 25.)

defendant "wasn't much but it was something."

Her pay from the

(Tr. 5/3/18 at 26.)

After she lost her job, the plaintiff could not find another job
and subsisted on unemployment compensation.

(Tr. 5/3/18 at 26.)

Those

plaintiff

benefits

ended

after

a

year.

The

credibly

testified that she was frightened, distraught, and did not know how
she would "survive."

(Tr. 5/3/18 at 27.)

She "struggled so hard

to feed" her child that she had to obtain groceries from a food
pantry.
27.)

(Tr. 5/3/18 at 26.)

She went every week.

(Tr. 5/3/18 at

Even so, she had "so little" food that she limited her own

eating to provide enough food for her daughter. (Tr. 5/3/18 at 27.)
The plaintiff often cried herself to sleep and was prescribed
medication for depression by her family doctor. (Tr. 5/3/18 at 27,
58.)
The ADA permits a prevailing plaintiff to recover compensatory

9

The plaintiff argues that
compensatory damages 30% of her
calculates as $552,409.92.
13

the court should award as
economic damages, which she

damages to

redress

"emotional

pain,

suffering,

inconvenience,

mental anguish, loss of enjoyment of life, and other nonpecuniary
losses." 42 U.S.C. § 1981a(b)(3). "[C]ompensatory damages are
'intended to redress the concrete loss that the plaintiff has
suffered by reason of the defendant's wrongful conduct . . . .'"
Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 52 (2d
Cir. 2015)(quoting Cooper Industries, Inc. v. Leatherman Tool
Group, Inc., 532 U.S. 424, 432 (2001)).

"A compensatory award for

emotional distress in a discrimination action may be based on
testimonial evidence alone and is not preconditioned on whether
[the plaintiff] underwent treatment, psychiatric or otherwise."
MacMillan v. Millennium Broadway Hotel, 873 F. Supp. 2d 546, 560
(S.D.N.Y. 2012).
"'Emotional distress awards within the Second Circuit can
generally

be

grouped

into

three

categories

garden-variety, significant, and egregious.'"

of

claims:

Barham v. Wal-Mart

Stores, Inc., No. 3:12CV1361(VAB), 2017 WL 3736702, at *2 (D. Conn.
Aug. 30, 2017)(quoting Graham v. City of N.Y., 128 F. Supp. 3d 681,
714 (E.D.N.Y. 2015)).

"In 'garden variety' emotional distress

claims, the evidence of mental suffering is generally limited to
the testimony of the plaintiff, who describes his or her injury in
vague or conclusory terms, without relating either the severity or
consequences

of

the

injury."

Barham,

2017

WL

3736702,

at

*2

(quoting Olsen v. Cty. of Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y.

14

2009)).

"Such claims typically lack extraordinary circumstances

and are not supported by any medical corroboration." Id. (internal
quotation marks and alteration omitted).

See MacCluskey v. Univ.

of Connecticut Health Ctr., No. 3:13CV01408(MPS), 2014 WL 7404565,
at *2 (D. Conn. Oct. 20, 2014) ("Emotional distress arising from
discrimination — which is what [plaintiff] is claiming — is, on its
own, generally a garden variety form of emotional distress.") "In
contrast, significant emotional distress claims are based on more
substantial harm or more offensive conduct, are sometimes supported
by medical testimony and evidence, evidence of treatment by a
healthcare

professional

and/or

medication,

other, corroborating witnesses."

and

testimony

from

Barham v. Wal-Mart Stores, Inc.,

No. 3:12CV1361(VAB), 2017 WL 3736702, at *3 (D. Conn. Aug. 30,
2017) (internal quotation marks and citation omitted). "Egregious"
emotional distress claims generally involve "either outrageous or
shocking discriminatory conduct or a significant impact on the
physical health of the plaintiff." Id. (internal quotation marks
omitted.)
This

case

falls

within

the

first

category

of

emotional

distress awards, that is, "garden-variety" distress.

"In the

Second Circuit, 'garden variety emotional distress claims generally
merit $30,000 to $125,000 awards.'"

Id. at *4 (quoting MacMillan

v. Millennium Broadway Hotel, 873 F. Supp. 2d 546, 561 (S.D.N.Y.
2012)).

15

The defendant argues that "if the court were to make an award
to the plaintiff" for compensatory damages, it should be "a nominal
award of $1.00" because the plaintiff's testimony concerning her
"claimed emotional distress lack[ed] credibility."
9, 11.)

(Doc. #115 at

The defendant goes so far as to suggest that the plaintiff

"decided she never needed to work again" and chose to support
herself

with

"social

benefits"

such

as

section

8

housing

assistance, Medicaid and Social Security Disability benefits. (Doc.
#115 at 10.)
The court disagrees.

Contrary to the defendant's suggestion,

the plaintiff suffered emotional distress as a result of the
defendant's termination of her job.

As evidenced by her testimony

and demeanor during the hearing, she was a proud woman devastated
by the loss of her job.

She testified with sincere conviction that

she suffered great anguish about providing for her child.

The

plaintiff

and

spoke

humiliation.

credibly

about

her

desperation,

anxiety

She was prescribed medication to treat her symptoms.

Taken as a whole, the plaintiff adduced evidence that supports a
damages award of $75,000 for emotional distress.
F.

Attorney's Fees

As a final matter, the plaintiff seeks $36,950 in attorney's
fees, reflecting 73.9 hours at $500/hour.10

(Doc. #113.)

In

support, the plaintiff submitted counsel's billing statement and

10

The plaintiff does not seek costs.
16

affidavit. (Doc. #114.)
The ADA and the CFEPA allow a prevailing party in an action to
recover reasonable attorney's fees.

See 42 U.S.C. § 12205; Conn.

Gen. Stat. § 46a-104.
"Both [the Second Circuit] and the Supreme Court have held
that the lodestar — the product of a reasonable hourly rate and the
reasonable number of hours required by the case — creates a
'presumptively reasonable fee.'"
F.3d 154, 166 (2d Cir. 2011).

Millea v. Metro-N. R.R. Co., 658

"[T]he presumptively reasonable fee

boils down to 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."

Simmons v. N.Y.C. Transit

Auth., 575 F.3d 170, 174 (2d Cir. 2009) (internal quotations marks
and citations omitted.)

"'[A]ny attorney . . . who applies for

court-ordered compensation in this Circuit . . . must document the
application with contemporaneous time records . . . specify[ing],
for each attorney, the date, the hours expended, and the nature of
the work done.'"

Marion S. Mishkin Law Office v. Lopalo, 767 F.3d

144, 148 (2d Cir. 2014) (quoting N.Y. State Ass'n for Retarded
Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)).
"District courts have broad discretion to determine both the
reasonable number of compensable hours and the reasonable hourly
rate." Feltzin v. Ciampa Whitepoint LLC, No. 15-CV-2279 (JBW)(PK),
2017 WL 570761, at *1 (E.D.N.Y. Feb. 13, 2017).

17

1.

Hourly Rate

To determine a reasonable hourly rate, the district court
considers "rates prevailing in the community for similar services
by

lawyers

of

reasonably

comparable

skill,

expertise

and

reputation." Cruz v. Local Union No. 3 of IBEW, 34 F.3d 1148, 1159
(2d Cir. 1994).

"The reasonable hourly rate is the 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 Concerned Citizens
Neighborhood Ass'n v. Cty. of Albany, 522 F.3d 182, 190 (2d Cir.
2008).
Plaintiff's counsel is a veteran litigator, having practiced
law for

50

years

with

extensive

experience

in

"civil

rights

litigation of all kinds, including police misconduct and employment
discrimination." (Doc. #107-1, Williams Aff. ¶2.)

His requested

rate of $500 hour, which defendant does not contest, is reasonable.
See, e.g., Goff v. Chivers, No. 3:15CV722(SALM), 2017 WL 2896022,
at *2 (D. Conn. July 7, 2017) (awarding $500 rate to plaintiff's
counsel).
2.

Hours Billed

Having determined a reasonable hourly rate, the court next
determines the reasonable number of hours expended.

According to

his affidavit, plaintiff's counsel billed 73.9 hours from November
2015 through May 16, 2018. (Doc. #113.)

18

The

party

seeking

attorney's

fees

"bears

the

burden

of

establishing that the number of hours for which compensation is
sought is reasonable."

Custodio v. Am. Chain Link & Const., Inc.,

No. 06-CV-7148, 2014 WL 116147, at *9 (S.D.N.Y. Jan. 13, 2014)
(citing Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers,
34 F.3d 1148, 1160 (2d Cir. 1994)).

"In determining the number of

hours reasonably expended . . . [a] district court should exclude
excessive, redundant or otherwise unnecessary hours, as well as
hours dedicated to severable unsuccessful claims." Quaratino v.
Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999).

"[I]n dealing

with such surplusage, the court has discretion simply to deduct a
reasonable

percentage

of

the

number

of

hours

claimed

practical means of trimming fat from a fee application.'"
v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998).

'as

a

Kirsch

The court

"looks to 'its own familiarity with the case and its experience
with the case and its experience generally as well as to the
evidentiary submissions and arguments of the parties.'"

Clark v.

Frank, 960 F.2d 1146, 1153 (2d Cir. 1992)(quoting DiFilippo v.
Morizio, 759 F.2d 231, 236 (2d Cir. 1985)).
The defendant argues that time spent on the claims against the
union co-defendant (see footnote 1) should not be compensated.11

11

The defendant raised this argument during the evidentiary
hearing. In response, plaintiff's counsel agreed on the record to
withdraw an entry on May 16, 2016 for 2 hours and another on May 17
for .3 hours.
(Tr. 5/3/18 at 84.)
After the hearing, the
plaintiff submitted a supplemental affidavit in which these entries
19

It states that plaintiff's counsel billed 11.7 hours from November
2015 through April 2016 while the union remained as a defendant.
The defendant posits that the court should deduct half this time
(5.9 hours)

because

defendants."

"during

this

time

period

there

were

two

(Doc. #115 at 8.)

The court is unpersuaded.

After careful review of counsel's

billing statement, the court cannot discern time attributable to
work on claims against the union and plaintiff's counsel represents
that he has omitted any charges for time expended on claims against
the union.

(Doc. #114 at 7.)

litigating

this

case

is

The court finds that the time spent

reasonable.

Plaintiff

is

awarded

attorney's fees of $36,950.
III. Conclusion
For these reasons, the plaintiff is awarded back pay of
$103,717.0112, compensatory damages of $75,000 and attorney's fees
of $36,950.
SO ORDERED at Hartford, Connecticut this 5th day of June,
2018.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

were omitted.

See doc. #113.

12

$102,795.01
(wages
until
June
2016)
+
$7500
(HSA
contributions) = $110,295.01.
$110,295.01 - $6578 (defendant's unemployment contribution) =
$103,717.01.
20