Johnson v. City of New York

MICHAEL JOHNSON, Plaintiff, v. THE CITY OF NEW YORK, MICHAEL GALA, individually and in his official capacity as Deputy Chief in the New York City Fire Department, MICHAEL CURNEEN, individually and in his official capacity as Captain in the New York City Fire Department, JAKE LAMONDA, individually and in his official capacity as an employee of the New York City Fire Department, PAUL D. MANNIX, individually and in his official capacity as Deputy Battalion Chief of the New York City Fire Department, JOSEPH KEARNEY individually and in his official capacity as Firefighter of the New York City Fire Department, and JOHN DOES or JANE DOES, individually and in his or her or their official capacity as an employee of the New York City Fire Department, Defendants.^[1]

No. 16 Civ. 6426 (KAM) (VMS)

United States District Court, E.D. New York

February 8, 2023

REPORT AND RECOMMENDATION

VERA M. SCANLON UNITED STATES MAGISTRATE JUDGE

Plaintiff Michael Johnson (“Plaintiff”) was hired as a “priority hire” firefighter as a result of a class action lawsuit against the New York City Fire Department (“FDNY”). See generally United States v. City of N.Y., No. 7 Civ. 2067 (NGG) (the “Vulcan Case”). Plaintiff instituted this action alleging that he suffered unlawful racial discrimination and retaliation as a result of his status as a “priority hire.” See generally ECF No. 1. More specifically, Plaintiff claimed that he was subjected to humiliating tasks and psychiatric examinations, and given failing performance evaluations without cause. ECF No. 115 ¶ 3. Most of his claims derived primarily from an article published in the New York Post on May 17, 2015 (“the Article”) about Plaintiff's alleged inclination to avoid fighting fires, including an April 2, 2015 three-alarm fire. ECF Nos 115 ¶¶ 76-102; 115-4; 143-1. In the Article Plaintiff was described as lazy, “slow and . . . a danger.” ECF No. 115-4 at 1. The Article revealed Plaintiff's medical leave record, and it alleged that he was scared of fires and that he “flees” from them. Id. The Article quoted several FDNY “sources.” Id.

In his Third Amended Complaint, Plaintiff sought relief for 1) retaliation in violation in 42 U.S.C. § 2000e-3 against Defendant The City of New York (the “City”); 2) retaliation in violation of N.Y. Exec. L. § 296 (the “NYSHRL”) against the City and Defendants Michael Gala, individually and in his official capacity as Deputy Chief in the New York City Fire Department (“Mr Gala”); Michael Curneen, individually and in his official capacity as Captain in the New York City Fire Department (“Mr. Curneen”); and Jake Lemonda, individually and in his official capacity as an employee of the New York City Fire Department (“Mr. Lemonda”); 3) retaliation in violation of N.Y. City Admin. Code § 8-107 (the “NYCHRL”) against the City, Mr. Gala, Mr. Curneen, Mr. Lemonda, Paul D. Mannix, individually and in his official capacity as Deputy Battalion Chief of the New York City Fire Department (“Mr. Mannix”), and Joseph Kearney, individually and in his official capacity as Firefighter of the New York City Fire Department (“Mr. Kearney”); 4) violation of 42 U.S.C. § 1983 against Defendants; 5) municipal liability pursuant to 42 U.S.C. § 1983 against the City; 6) violation of 42 U.S.C. § 1981 against Mr. Mannix and Mr. Kearney; and 7) conspiracy in violation of 42 U.S.C. § 1985(3) against Mr. Mannix and Mr. Kearney.^[2] See generally ECF Nos. 115; 199 at 3-15.

Presently before the Court is Plaintiff's motion for attorneys' fees for compensation for 1,479.85 hours for a total of $831,885, plus costs. See generally ECF Nos. 247 through 247-15; Appendix A. More specifically, Plaintiff seeks compensation for 107.75 hours expended by Mr. Gleason at $500 per hour, totaling $53,875; 437.9 hours expended by Mr. Lenoir at $550 per hour, totaling $240,845; and 934.2 hours expended by Mr. Smith at $575 per hour, totaling $537,165. See Appendix B. The City, Mr. Gala and Mr. Curneen (“City Defendants”) oppose the motion. See generally ECF No. 250. Plaintiff replies. See generally ECF No. 251. The Court respectfully recommends that the motion be granted in part and denied in part, and that Plaintiff be awarded as against City Defendants $676,740.75 in attorneys' fees, arising from 778.29 compensable hours for Mr. Smith at a rate of $575 per hour ($447,516.75); 383.68 compensable hours for Mr. Lenoir at the rate of $550 per hour ($211,024.00); two compensable travel hours for Mr. Smith at the rate of $287.50 per hour ($575.00); and 35.25 compensable hours for Mr. Gleason at the rate of $500 per hour ($17,625.00). The Court respectfully recommends that Plaintiff also be awarded $8,401.20 in costs, for a total award of $685,141.95.

I. ATTORNEYS' FEES

The Court addresses Plaintiff's entitlement to the attorneys' fees claimed in this motion and City Defendants' related objections.

A. Plaintiff's Motion

Each of the statutory and administrative frameworks pursuant to which Plaintiff asserted claims permits an award of attorneys' fees to the prevailing party. As to 42 U.S.C. § 2000e-3, commonly known as Title VII, 42 U.S.C. § 2000e-5(k) provides that, “[i]n any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee (including expert fees) as part of the costs.” As to 42 U.S.C. §§ 1981, 1983 and 1985, 42 U.S.C. § 1988(b) provides that, “[i]n any action or proceeding to enforce a provision of sections 1981, . . . 1983, . . . [or] 1985 . . . of this title . . ., the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.” N.Y. Exec. L. § 297, which sets forth the procedure for seeking relief for unlawful discriminatory practices defined in N.Y. Exec. L. § 296, known as the NYSHRL, provides that, “[i]n an action or proceeding at law under this section or section two hundred ninety-eight of this article, the commissioner or the court may in its discretion award reasonable attorney's fees to any prevailing or substantially prevailing party.” N.Y. City Admin. Code § 8-502, which states that persons claiming to be aggrieved by an unlawful discriminatory practice set forth in N.Y. City Admin. Code § 8-107, known as the NYCHRL, among others, possess a cause of action therefor, provides that,

[i]n any civil action commenced pursuant to this section, the court, in its discretion, may award the prevailing party reasonable attorney's fees, expert fees and other costs . . . . The court shall apply the hourly rate charged by attorneys of similar skill and experience litigating similar cases in New York county when it chooses to factor the hourly rate into the attorney's fee award.

In order to determine the reasonable attorneys' fees to be awarded, courts apply the lodestar method, which requires multiplying the hourly rates deemed reasonable for each attorney performing work on the case by the number of hours reasonably expended litigating the case. See Hannah v. Walmart Stores, Inc., 803 Fed.Appx. 417, 424 (2d Cir. 2020) (awarding attorneys' fees under Title VII, 42 U.S.C. § 2000e-5(k), using the lodestar method); Restivo v. Hessemann, 846 F.3d 547, 589 (2d Cir. 2017) (reasoning that “[t]he Supreme Court has held that the lodestar method yields a fee that is presumptively sufficient to achieve [the] objective of Section 1988(b)”) (internal citations & quotations omitted); Knox v. John Varvatos Enterprises Inc., 520 F.Supp.3d 331, 338 (S.D.N.Y. 2021), aff'd sub nom. Chaparro v. John Varvatos Enterprises, Inc., No. 21 Civ. 446, 2021 WL 5121140 (2d Cir. Nov. 4, 2021) (applying the lodestar method to calculate attorneys' fees under the NYSHRL); Antoine v. Brooklyn Maids 26, Inc., 489 F.Supp.3d 68, 102-03 (E.D.N.Y. 2020) (considering the plaintiff's entitlement to an award of attorneys' fees pursuant to 42 U.S.C. § 2000e-5(k) and N.Y.C. Admin. Code § 8-502(g), and noting that “[c]ourts in the Second Circuit calculate a presumptively reasonable fee by taking the product of the hours reasonably expended and a reasonable hourly rate that reflects what a reasonable, paying client would be willing to pay”) (internal citations & quotations omitted); Sooroojballie v. Port Auth. of NY & NJ, 15 Civ. 1230 (WFK) (PK), 2020 WL 9934418, at *2 (E.D.N.Y. Nov. 10, 2020) (considering 42 U.S.C. § 2000e-5(k) and noting that “[r]easonable attorneys' fees in Title VII cases are calculated using the lodestar method”) (internal citations & quotations omitted), report & recommendation adopted, 2021 WL 1827116 (E.D.N.Y. May 7, 2021).

i. Reasonable Hourly Rate

The Court addresses below the law on setting a reasonable hourly rate for an award of attorneys' fees then applies the law to this case.

a. Overview Of Applicable Law

In setting a reasonable hourly rate,

[t]he district court, in exercising its considerable discretion, [should] bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate. The reasonable hourly rate is the rate a paying client would be willing to pay. In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. The district court should also consider that such an individual might be able to negotiate with his or her attorneys, using their desire to obtain the reputational benefits that might accrue from being associated with the case.

Lilly v. City of New York, 934 F.3d 222, 230 (2d Cir. 2019) (internal citation omitted) (citing Johnson v Georgia Highway Express,...