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holding trial court injury trial had discretion to award prejudgment interest
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CIV. NO. 3:95CV01838 (DFM)
September 22, 1998.
RULING ON PENDING MOTIONS
The plaintiff, David Gilmore, brought this action against the City of Waterbury and its former mayor, Edward Bergin, in a five count complaint asserting claims of wrongful termination and defamation. In Counts I and II, Gilmore alleged that he was wrongfully terminated from his position as Executive Director of the Office of Housing and Neighborhood Development because he opposed what he believed to be discriminatory housing practices. In Count III, he alleged that he was terminated for exercising his First Amendment rights. In Count IV, he alleged that his termination was in violation of public policy under Connecticut state law. In Count V, he asserted a claim of defamation against the defendant Bergin only.
A jury trial was held before the undersigned in February 1998. The jury found for the defendants on Counts I, II and V and for the plaintiff on Count IV. As to Count III, the jury made findings of fact in response to interrogatories in order to provide a factual basis on which the court may render judgment. The jury awarded the plaintiff $84,076 in compensatory damages and also determined that the plaintiff was entitled to punitive damages on Count IV, his claim of wrongful termination in violation of public policy.
Currently pending before the court are (1) motions by both the plaintiff and the defendants for judgment on Count III, and (2) the plaintiff's motion for attorney's fees, prejudgment interest, punitive damages and costs. For the reasons stated below, the defendants' motion for judgment on Count III (doc. #69) is DENIED, the plaintiff's motion for judgment on Count III (doc. #70-1) is GRANTED, and the plaintiff's motion for attorney's fees, interest, punitive damages and costs (doc. #70-2) is GRANTED in part and DENIED in part.
The court construes the Defendants' Memorandum of Law Regarding Pickering Balancing Test and Plaintiff's First Amendment Claim (doc. #69) as a motion for judgment on Count III.
I. The Parties' Motions for Judgment on Count III
In Count III, the plaintiff asserts a civil rights claim under 42 U.S.C. § 1983, alleging that the defendants terminated his employment as the Executive Director of the Office of Housing and Neighborhood Development in violation of his First Amendment rights. In response to interrogatories on the verdict form, the jury made specific findings of fact with respect to the plaintiff's First Amendment claim. Based on the findings of fact determined by the jury, it is now for the court to decide whether the plaintiff or the defendants are entitled to judgment on Count III as a matter of law. See Schneider v. City of Atlanta, 628 F.2d 915, 919 n. 4 (5th Cir. 1980) (although the ultimate question of protected speech may be answered only by the court, the use of special interrogatories to the jury is appropriate to resolve the underlying factual issues in a First Amendment claim).
It is well established that a state may not discharge an employee on a basis that infringes the employee's constitutionally protected interest in freedom of speech. Rankin v. McPherson, 483 U.S. 378, 383 (1987). The determination whether a public employer has properly discharged an employee for engaging in speech requires a balancing of the interest of the employee as a citizen in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. Id. at 384 (citing Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)). This balancing test, often referred to as the Pickering test, is necessary to accommodate the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment. Id. "Although such particularized balancing is difficult, the court must reach the most appropriate possible balance of the competing interests."Connick v. Myers, 461 U.S. 138, 150 (1983). Under the Pickering test, the employer bears the burden of justifying the discharge by demonstrating that the employee's speech caused sufficient disruption of the employer's ability to provide services to the public so as to tilt the balance in the government employer's favor. Rankin, 483 U.S. at 388; Waters v. Churchill, 511 U.S. 661, 674 (1994); Connick v. Myers, 461 U.S. 138, 150 (1983).
The government's burden in justifying a particular discharge varies depending on the nature of the employee's expression. Id.,Frank v. Relin, 1 F.3d 1317, 1329 (2d Cir.), cert. denied, 510 U.S. 1012 (1993). If the speech at issue only tangentially touches on public concern, the defendant need not wait until "the disruption of the office and the destruction of working relationships is manifest before taking action." Connick, 461 U.S. at 152. However, "if the employee's speech substantially involved matters of public concern, the government must make a stronger showing of interference with operations." Bieluch v. Sullivan, 999 F.2d 666, 671 (2d Cir. 1993), cert. denied, 510 U.S. 1094 (1994). In fact, if the plaintiff's speech involves matters of serious public concern, his rights are outweighed by the defendants' interest in efficiency only if the defendants make a "substantial showing" that the speech is disruptive.Waters v. Churchill, 511 U.S. 661, 674 (1994)
Some attention must also be paid to the responsibilities of the employee within the government agency. Rankin, 483 U.S. at 390. The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee's role entails. Id. at 390-91 (where an employee serves no confidential, policymaking or public contact role, the danger to the agency's functioning posed by that employee's private speech is minimal).
Before applying the Pickering test to the findings of fact made by the jury in this action, it is appropriate to provide some background as to the nature of the plaintiff's claims and the evidence presented at trial. The plaintiff had been selected by defendant Mayor Bergin to serve as the Executive Director of the newly-created Office of Housing and Neighborhood Development ("OHND"). As the Executive Director of the OHND, Gilmore served in a policy-making and public contact role. He reported directly to Mayor Bergin and the Board of Directors for the OHND. In this position, Gilmore was responsible for facilitating housing projects utilizing federal funds provided under the HOME program. Federal funds provided under the HOME program were restricted to use exclusively for HOME projects.
On October 20, 1994, employees in the OHND told Gilmore that John Lembo, an employee in the Community Development Office, had requested that they change their previously submitted time records to indicate that they had done more work on HOME programs than they had actually done. Gilmore met with Lembo to discuss the proposed changes. The next day, Gilmore sent an internal memorandum to Lembo's supervisor, Deborah D'Agostino. The part of the memorandum that addressed the time records issue stated:
I have been informed that [Community Development and OHND] staff have been asked to change time sheet hours to meet budget allocations. I must tell you again that I am uncomfortable with any changes being made . . . . There are charges being made that are inappropriate, they do not fit (HOME). What was approved . . . cannot be applied here under State and Federal programs . . . . How do you go back in time and change these documents and then request that I initial these changes like it's business as usual. I believe these are legal documents, are they not? I will not be initialing these documents and have told my staff not to make any changes . . . . I hope that you can appreciate that I would prefer to err on the side of caution . . . . Maybe you should get an opinion from Corporation Counsel this time!
Plaintiff's Exhibit 1. On the same day that Gilmore sent his memorandum to D'Agostino, Mayor Bergin transferred the responsibility for approving time records for OHND employees from Gilmore to D'Agostino. Gilmore also spoke with Ron Napoli, a member of the city's Board of Aldermen, and told Napoli that he believed that it would be illegal to change the time records. Napoli investigated the matter and reported the results of his investigation to Mayor Bergin. On November 22, 1994, Mayor Bergin told Gilmore that if he did not resign he would be terminated.
The jury found that the plaintiff's termination was motivated by his speech and conduct in objecting to changes in the time records. The jury also found the disruptive effect of this speech to be a motivating factor in the plaintiff's termination. In light of the jury's findings, by agreement of counsel, a supplemental charge was given and the jury was asked to respond to additional interrogatories. The jury interrogatories, with their responses (in italics), follow:
JURY INTERROGATORIES
1. With respect to the plaintiff's first amendment claim, please place an "X" beside each alleged instance of speech or act of expression which you found to be a substantial or motivating factor in the defendants' decision to terminate the plaintiff's employment:
___X___ The plaintiff's memorandum to Deborah D'Agostino (Plaintiff's Exhibit 1).
______ The plaintiff's speech to Mr. Napoli, complaining that employees were being illegally asked to change their time sheets.
______ The plaintiff's inclusion of the words "Discussion of unauthorized $7,500 debit item" on an agenda for a meeting of the board of the Office of Housing and Neighborhood Development (Plaintiff's Exhibit 25).
______ The plaintiff's refusal to enforce the City of Waterbury's Anti-Blight Ordinance against supporters of Mr. Bergin.
2. Please identify any disruptive effect caused by each instance of speech or act of expression identified in response to Question 1.Dagastino [sic] Memo:
1. The incident was a catalyst in the ultimate resignation off Mr. Gilmore.
2. That it diminished Mr. Gilmore's authority with regards to time sheets.
3. That it caused discension [sic] between the two agencies among its employees.
4. That it caused an investigation (by Mr. Napoli) into the time card issue.
Based on the jury's special findings, the plaintiff claims that he is entitled to judgment on the First Amendment claim because any disruption of the legitimate operation of government caused by his memorandum to D'Agostino is far outweighed by the First Amendment rights at issue. The defendants contend the contrary — that the plaintiff's right to express his concerns about the time records issue in a memorandum to D'Agostino is outweighed by the defendants' interest in the effective operation of the work place.
The court now applies the Pickering test to the jury's findings. The defendants having conceded that the plaintiff's speech addressed matters of public concern, the court begins its analysis by considering the weight to be given the plaintiff's speech.
One of the critical purposes of the First Amendment is to provide society with a basis to make informed decisions about government. Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs." Piesco v. City of New York, 933 F.2d 1149, 1156 (2d Cir.) (quoting Mills v. Alabama, 384 U.S. 214, 218-219 (1966)), cert. denied, 502 U.S. 921 (1991). "This of course includes discussions of . . . the manner in which government is operated or should be operated. . . ." Id. Numerous cases have pointed out that speech about government wrongdoing or misallocation of public funds are of significant concern and are therefore entitled to great weight in the Pickering balance. See, e.g., Propst v. Bitzer, 39 F.3d 148, 152 (7th Cir. 1994), cert. denied, 514 U.S. 1036 (1995); Frank, 1 F.3d at 1329-1330; Piesco, 933 F.2d at 1157-1158; Vasbinder v. Ambach, 926 F.2d 1333, 1340-1341 (2d Cir. 1991); Conway v. Smith, 853 F.2d 789, 797-98 (10th Cir. 1988); Giacalone v. Abrams, 850 F.2d 79, 86-87 (2d Cir. 1988); Rookard v. Health and Hospitals Corp., 710 F.2d 41, 46 (2d Cir. 1983); Fender v. City of Oregon City, 811 F. Supp. 554, 561 (D. Or. 1993),. aff'd, 37 F.3d 1505 (9th Cir. 1994). See also Marohnic v. Walker, 800 F.2d 613, 616 (6th Cir. 1986) ("Public interest is near its zenith when ensuring that public organizations are being operated in accordance with the law . . . and seeing that public funds are not purloined.").
The plaintiff's speech involved potential violations of federal law concerning the expenditure of federal funds. He stated that the changing of time sheet hours to meet budget allocations was "inappropriate" and could not be done under "State and Federal programs." Because the plaintiff's speech involved claims of wrongdoing and the misuse of public' monies, it deserves great weight in the Pickering balancing process.
Against this weight must be balanced the disruption caused by the speech. The mere fact that some disruption occurred is not dispositive. Disruption is to be "expected in any case where a government employee or volunteer has broken rank." Versarge v. Township of Clinton, New Jersey, 984 F.2d 1359, 1366 (3rd Cir. 1993). Instead, the weight to be accorded any disruption depends on whether it (1) impairs discipline by superiors or harmony among co-workers, (2) damages working relationships requiring personal loyalty and confidence, (3) impedes the speaker's ability to perform his duties, or (4) interferes with the regular operation of the employing agency. Rankin v. McPherson, 483 U.S. 378, 388 (1987). The time, place, manner and context of the speech are also relevant. Id.
In this case, the jury found that the plaintiff's speech caused the following disruption: (1) it was a catalyst in Gilmore's resignation; (2) it diminished the plaintiff's authority with respect to the time sheets; (3) it caused dissension among the employees of OHND and the Community Development Office; and (4) it caused an investigation of the time sheet matter by Mr. Napoli. The court considers the weight to be accorded each of these disruptive effects.
The jury's first finding — that the speech resulted in the plaintiff's termination — is, of course, the basis of the plaintiff's claim. Because the balancing process is an analysis to determine if the termination was justified, the finding that Gilmore was terminated cannot be a factor in the balancing process. Accordingly, this fact is accorded no weight in the court's analysis under Pickering.
The jury's second finding of disruption caused by the plaintiff's speech was that it diminished his authority concerning the time records. Mayor Bergin transferred the responsibility for approving OHND employees' time sheets from Gilmore to D'Agostino on the same day that the plaintiff wrote the memorandum. Although this transfer obviously changed the procedure for the review and approval of employee time sheets, there was little evidence as to how this change impaired Gilmore's ability to perform his duties, damaged working relationships or otherwise impeded the regular operation of the employing agency. The court therefore accords little weight to this disruption.
As to the third disruptive effect identified by the jury — that the plaintiff's speech caused dissension among the employees of OHND and the Community Development Office — the court recognizes that such disruption is something that the employer has an interest in seeking to avoid. Although the plaintiff's speech certainly enhanced the discord in the working relationship between himself and D'Agostino, the evidence showed that this relationship was strained well before the plaintiff sent the memorandum. Nevertheless, this disruption clearly interfered with Gilmore's performance of his duties, which at times required interaction between the OHND and the Community Development Office. This disruption is therefore not insignificant in the balancing process and is entitled to some weight.
The jury's next finding was that Gilmore's speech prompted an investigation by one of the city's aldermen. There was no evidence, however, that this disruption undermined Mayor Bergin's authority, impaired Gilmore's ability to perform his duties or had any significant effect on the workings of the city administration. Moreover, the jury's finding that the city alderman's investigation was prompted by the plaintiff's speech may serve to underscore the fact that the matters addressed in the plaintiff's speech were of serious public concern and therefore deserve great weight in the balancing process.
Finally, the court reviews the time, place, manner and context of the plaintiff's speech. The jury determined that the speech which was a motivating factor in the defendants' decision to terminate the plaintiff was contained in an internal memorandum. An internal complaint is perhaps the least disruptive manner in which a public employee may raise a public issue. See Rankin, 483 U.S. at 389 (noting that employee had not "discredited the office by making her statement in public"); Wright v. Ill. Dept. of Children Family Services, 40 F.3d 1492, 1503-1504 (7th Cir. 1994) (finding that employee should have raised complaints within the chain of command); Conaway, 853 F.2d at 798 (finding that the use of internal channels tilted the Pickering balance in the plaintiff's favor). The court also notes that the plaintiff's speech contained in the memorandum was not insulting or inflammatory in nature.
Balancing the plaintiff's interest in commenting upon matters of public concern against the government's interest in avoiding the disruptive effects of that speech, as discussed above, the court is persuaded that the plaintiff's First Amendment interest far outweighs the defendants' interest here. Although the plaintiff's speech caused a change in the supervisory approval of employee timesheets, further impaired an already strained working relationship between the supervisors of two governmental agencies, and prompted an investigation by a city alderman, these disruptions do not outweigh the plaintiff's constitutionally protected interest in commenting about potential government wrongdoing or the misallocation of public funds, which are matters of significant public concern. Accordingly, the defendants have failed to carry their burden. The plaintiff is entitled to judgment on Count III.
II. The Plaintiff's Motion for Attorney's Fees and Costs, Punitive Damages and Prejudgment Tnterest
The plaintiff seeks an award of attorney's fees and costs on his civil rights claim pursuant to 42 U.S.C. § 1988, in addition to an award of punitive damages on his state law claim. The plaintiff also seeks an award of prejudgment interest.
A. Attorney's Fees and Costs
The court may award reasonable attorney's fees and costs to a prevailing plaintiff in a civil rights action brought under 42 U.S.C. § 1983. 42 U.S.C. § 1988. When considering an award of attorney's fees, the court must first determine whether the plaintiff is a prevailing party and, if so, then what constitutes a reasonable fee. Cowan v. Prudential Ins. Co. of America, 935 F.2d 522, 524 (2d Cir. 1991)
1. Prevailing Party
The defendants contend that the plaintiff is not entitled to an award of attorney's fees and costs under 42 U.S.C. § 1988 because "he neither substantially prevailed at trial on a constitutional claim nor did he obtain a significant result." A plaintiff is considered to be prevailing party if he "succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Given this court's ruling on the plaintiff's First Amendment claim, the court finds the defendants' contention to be without merit. The plaintiff is entitled to an award of reasonable attorney's fees and costs pursuant to 42 U.S.C. § 1988.
2. Reasonable Attorney's Fees
In determining the reasonable fee to be awarded to a prevailing party, the first step is to calculate the lodestar amount by multiplying "the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blanchard v. Bergeron, 489 U.S. 87, 94 (1989) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Employing this formula, the plaintiff seeks an award of attorney's fees in the amount of $178,718. The defendants seek significant reductions in the attorney's fees claimed by the plaintiff for a variety of reasons, each of which is addressed below.
a. Reasonable Hourly Rates
In determining a reasonable hourly rate for an attorney's fee in a civil rights suit, the court is guided by the Supreme Court's admonition that "Congress intended that the amount of fees awarded . . . be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases. . . ." City of Riverside v. Rivera, 477 U.S. 561, 575 (1986). This directive is particularly applicable to this case, which involves the complexities of First Amendment employment litigation. The court should consider the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation and may rely in part on its knowledge of prevailing market rates for attorney's fees. Miele v. N.Y. State Teamsters Conf. Pension Retirement Fund, 831 F.2d 407, 409 (2d Cir. 1987).
Four attorneys provided services to the plaintiff in the course of this litigation. The plaintiff contends that a reasonable rate for Attorneys Thomas Meiklejohn and Greg Adler is $275 per hour; that a reasonable rate for Attorney Mary Kelly is $200 per hour; and that a reasonable rate for Attorney Susan Price-Livingston is $150 per hour. The plaintiff has submitted affidavits to prove that these rates are reasonable in light of the level of experience, skill and expertise of the plaintiff's attorneys and in comparison to fees charged by employment attorneys in Connecticut with similar levels of experience, skill and expertise.
The defendants do not contest the reasonableness of the hourly rates of Attorneys Meiklejohn, Adler and Price-Livingston. After examining the affidavits submitted by the plaintiff, and absent objection or countervailing proof, the court finds the plaintiff's proposed hourly rates for these attorneys to be reasonable.
Although the defendants do not contest the rates for Attorneys Adler and Price-Livingston, they do contend that the plaintiff has failed to demonstrate that the services provided by Attorneys Adler and Price-Livingston were necessary. This contention is discussed infra.
As to Attorney Kelly, the defendants contend that the proposed hourly rate of $200 is unreasonable and that a reasonable rate would be in the range of $50 to $75 per hour. The court finds the defendants' proposed hourly rate for Attorney Kelly to be ludicrous. It was overwhelmingly apparent to this court during the trial and trial preparation stages that the value of Attorney Kelly's services far exceeded the range proposed by the defendants. The court nevertheless is persuaded, based in part on its own knowledge of prevailing market rates within the community, that an hourly rate of $175 is a reasonable fee for Attorney Kelly.
b. Hours Reasonably Expended
In calculating the lodestar amount, the plaintiff is entitled to an award based upon the hours "reasonably expended on the litigation." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) The plaintiff's attorneys spent over 984 hours on this case. Upon review of their records, plaintiff's counsel have excluded more than 268 hours of work from the fee petition based on their determination that certain work was not necessary to advance the litigation. The defendants contend that the plaintiff's fee petition should be further reduced by 70% based on the plaintiff's limited success. The court disagrees.
"A plaintiff's lack of success on some of his claims does not require the court to reduce the lodestar amount where the successful and the unsuccessful claims were interrelated and required essentially the same proof." Murphy v. Lynn, 118 F.3d 938, 952 (2d Cir. 1997), cert. denied, 118 S.Ct. 1051 (1998). See Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994) ("So long as the plaintiff's unsuccessful claims are not "wholly unrelated' to the plaintiff's successful claims, hours spent on the unsuccessful claims need not be excluded from the lodestar amount.")
In this case, the plaintiff's unsuccessful claims were not wholly unrelated to the successful claims. All of the plaintiff's claims concern the circumstances surrounding the termination of his employment. Four of the plaintiff's five claims assert causes of action for wrongful discharge. Even the plaintiff's defamation claim against former Mayor Bergin arose out of the circumstances surrounding the plaintiff's termination. Far from wholly unrelated, the plaintiff's claims all involved closely intertwined or overlapping factual and legal issues. This court therefore finds that no reduction of the plaintiff's fee request is warranted by the fact that the plaintiff did not prevail on all five counts of his complaint.
Although the defamation claim did arise out of circumstances surrounding the plaintiff's termination, the plaintiff's fee petition nevertheless appropriately excludes 8.8 hours of legal work related exclusively to the defamation claim.
The defendants also contend that the plaintiff should not recover attorney's fees for 156.9 hours expended by plaintiff's attorneys in connection with the administrative proceedings before the Connecticut Commission on Human Rights and Opportunities ("CCHRO"). The plaintiff argues that he is entitled to fees for 156.9 hours of the total 372.4 hours spent in connection with the CCHRO proceeding because time spent in the investigatory phase, the hearing and in reviewing transcripts resulted in the disclosure of witnesses and other information useful to this action, thereby reducing discovery in this case.
The plaintiff was not required to exhaust administrative remedies before bringing his § 1983 claim. Webb v. Board of Educ. of Dyer County, 471 U.S. 234 (1985). Although the court does not doubt that the CCHRO proceeding yielded information that was ultimately useful in this action, the court does not find that most of the legal services performed in connection with the CCHRO proceeding were of a type ordinarily necessary to advance the plaintiff's First Amendment claim. Id. The court is persuaded, however, by the plaintiff's arguments that reviewing the transcripts and tapes of the CCHRO proceedings was useful and of a type ordinarily necessary to prepare for the litigation of this action. Accordingly, the plaintiff is entitled to recover fees for 19.1 hours which Attorney Meiklejohn spent reviewing CCHRO transcripts and tapes.
Attorney Meiklejohn spent 6 hours reviewing CCHRO tapes in April 1996 and 13.1 hours reviewing CCHRO transcripts in September 1997.
The defendants also argue that the fee petition should exclude all time expended by Attorneys Adler and Price-Livingston. The defendants claim that the services of these attorneys should be excluded because they were not necessary to advance the plaintiff's case. Affidavit testimony submitted by the plaintiff establishes that Attorney Adler invested 1.85 hours in consultations concerning legal issues raised during the trial of this action. His time shall be allowed. Affidavit testimony also establishes that Attorney Price-Livingston spent 0.5 hours responding to a motion filed by the defendants. That time shall be allowed. Attorney Price-Livingston also expended 12.8 hours in connection with the CCHRO proceeding. For the reasons stated above, the 12.8 hours expended by Attorney Price-Livingston in connection with the CCHRO proceeding shall be excluded.
The defendants also claim that 155.30 hours of Attorney Kelly's time should be excluded as being duplicative of services provided by other attorneys in the litigation. The court disagrees. Although the plaintiff's counsel's records clearly reflect that Attorney Kelly was frequently one of two attorneys performing a task, this court does not find that her services were either unnecessary or duplicative. See New York Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983) (trial court may award fees for services provided by more than one attorney at depositions and trial); Bohen v. City of East Chicago, 666 F. Supp. 154, 157 (N.D. Ind. 1987) (use of more than one attorney is common and may be reasonable to ensure that significant facts or inquiries are not overlooked). Having had the opportunity to observe plaintiff's counsel during trial, this court is persuaded that Attorney Kelly's services complemented those of Attorney Mieklejohn, assisting him in making an effective presentation. The court will not reduce plaintiff's counsel's fees for their efforts to be thorough and well-prepared.
The defendants further argue that the plaintiff's request for fees should be reduced due to inadequate and vague documentation. After a thorough review of the plaintiff's counsel's documentation, the court finds that many of the descriptions of services performed are less specific than the court would like to see. For example, many entries simply state that an attorney reviewed documents or performed research without specifying the particular subject matter of the time expenditures. See Orshan v. Macchiarola, 629 F. Supp. 1014, 1019 (E.D.N.Y. 1986) (court disallows claim for fees for time supported only by such specifications as "prepare correspondence" and "review correspondence"). In addition, many time entries contain descriptions of multiple tasks. This "bundling" or commingling of several tasks in one time entry prevents the court from assessing the length of time counsel spent on each task. Absent such specificity, it is difficult for the court to determine whether the time spent on a particular task was reasonable. See Soler v. G U, Inc., 801 F. Supp. 1056, 1061 (S.D.N.Y. 1992). In light of these deficiencies, the court finds that a 15 percent reduction of attorney's fees and daily expenses is appropriate.
The defendants do not suggest the percent reduction they believe would be appropriate.
3. Reasonable Costs
In addition to attorney's fees, the plaintiff seeks $2,583.82 for his out-of-pocket expenses. Reasonable out-of-pocket expenses for such things as telephone bills, postage and photocopying are recoverable as costs under 42 U.S.C. § 1988. Northeross v. Board of Educ. of Memphis City Schools, 611 F.2d 624, 639 (6th Cir.), cert. denied, 447 U.S. 911 (1979); Thomas v. Board of Educ., 505 F. Supp. 102, 105 (N.D.N.Y. 1981). The defendants do not oppose the plaintiff's request for costs except that they object to the vagueness of the descriptions of the plaintiff's daily expenses. The documentation supporting the plaintiff's claim for daily expenses, which total $718.66, consists of monthly sums for categories of costs identified merely as "photocopies," "faxing charges," "telephone calls," and "postage." The court agrees that the documentation of the plaintiff's counsel's daily expenses is insufficient. Due to the vagueness of the supporting documentation, the plaintiff's daily expenses of $718.66 should be reduced by 15 percent, to $610.86. In addition to daily expenses, the plaintiff is also entitled to recover $1,865.16 — to which the defendants do not object — for the costs for depositions, service of subpoenae, and the filing fee. The plaintiff is therefore entitled to recover a total of $2,476.02 in costs and expenses under 42 U.S.C. § 1988.
In sum, the plaintiff is entitled to an award of attorney's fees and expenses under 42 U.S.C. § 1988 in the amount of $117,434.27. This total is based on the following findings made by this court:
1. Attorney Thomas Meiklejohn reasonably expended 357.6 hours on the litigation of this action at the reasonable hourly rate of $275 for a total of $98,340.00.
2. Attorney Greg Adler reasonably expended 1.85 hours on the litigation of this action at the reasonable hourly rate of $275 for a total of $508.75.
3. Attorney Mary Kelly reasonably expended 207.55 hours on the litigation of this action at the reasonable hourly rate of $175 for a total of $36,321.25.
4. Attorney Susan Price-Livingston reasonably expended 0.5 hours on the litigation of this action at the reasonable hourly rate of $150 for a total of $75.
5. Total attorney's fees in the amount of $135,245 is reduced by 15 percent ($20,286.75), due to the vagueness of the plaintiff's counsel's time records. The plaintiff is therefore entitled to recover attorney's fees in the amount of $114,958.25.
6. The plaintiff is also entitled to his out-of-pocket expenses in the amount of $2,476.02.
B. Punitive Damages
The jury determined that the plaintiff is entitled to punitive damages on Count IV, the state law claim that he was wrongfully terminated in violation of public policy. Under Connecticut law, the amount of punitive damages is measured by attorney's fees and non-taxable costs as determined by reference to the agreement between the plaintiff and his counsel. Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 59 n. 4, 578 A.2d 1054 (1990). In this case, the parties have stipulated that the plaintiff agreed to pay his attorneys one-third of the proceeds of the case. Because the jury awarded the plaintiff compensatory damages in the amount of $84,076, the parties agree that the plaintiff is entitled to punitive damages equal to one-third that amount, or $28,025.
The defendants argue that any award of reasonable attorney's fees under 42 U.S.C. § 1988 should be offset by $28,025 — the amount of punitive damages to which the plaintiff is entitled on his state law claim of wrongful termination. The plaintiff argues that he is entitled to state law punitive damages in addition to his attorney's fee award under 42 U.S.C. § 1988 because the entitlement to punitive damages under state law is separate and distinct from the fee award under 42 U.S.C. § 1988. Before addressing the parties' arguments, the court reviews the purposes served by the statutory fee award and common law punitive damages.
The purpose of the statutory fee award under 42 U.S.C. § 1988 is to encourage attorneys to accept complex and difficult civil rights cases. "In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case.City of Riverside v. Rivera, 477 U.S. 561, 578 (1986). The statutory fee award under § 1988 thus creates a right for the attorney to receive fees.
The primary purpose of punitive damages under Connecticut common law is to compensate the plaintiff for his litigation expenses. Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992). Although common law punitive damages also serve to punish and deter wrongful conduct, they "serve primarily to compensate the plaintiff for his injuries and, thus, are properly limited to the plaintiff's litigation expenses less taxable costs." Id.See also Hanna v. Sweeney, 78 Conn. 492, 62 A. 785 (1906) (although "nominally not compensatory," punitive damages are compensatory "in fact and effect"). Punitive damages under state common law are therefore limited to an amount which will serve to compensate the plaintiff to the extent of his expenses of litigation less taxable costs.
Punitive damages under the common law serve a different purpose than punitive damages that may be awarded pursuant to certain statutes. See, e.g., Lenz v. CNA Assurance Co., 42 Conn. Sup. 514, 515, 630 A.2d 1082 (1993) ("This statutory provision [of the Connecticut Unfair Trade Practices Act] allows for punitive damages based on a theory of deterrence, whereas the common law premise of such an award is compensation.")
Notwithstanding the fact that the plaintiff has established that he is entitled to recover his attorney's fees under the common law doctrine of punitive damages and has also established that he is entitled to recover his attorney's fees under § 1988, it does not follow that the plaintiff is entitled to a double recovery of his fees. The fact that a plaintiff may be entitled to the same award under different theories does not mean that the plaintiff is entitled to a double recovery.
This court therefore holds that the plaintiff may not recover $28,025 in common law punitive damages in addition to the attorney's fees awarded pursuant to 42 U.S.C. § 1988. This is not to say that the plaintiff's award of punitive damages should be zero. The parties agree that the plaintiff is entitled to an award of punitive damages equal to $28,025. Nor, as the defendants suggest, should the amount of fees awarded under § 1988 be reduced by the $28,025 in common law punitive damages. The better procedure is for both awards to stand intact, but with the qualification that to the extent that plaintiff receives payment of the § 1988 award, his claim for $28,025 in punitive damages shall be deemed paid and satisfied. See Wheatley v. Ford, 679 F.2d 1037, 1041 (2d Cir. 1982) ("to the extent counsel receives payment of the section 1988 statutory award, his claim for services rendered under his contingency fee arrangement with his client shall be deemed paid and satisfied")
By permitting both awards to stand intact, the plaintiff's right to full entitlement to either award will not be altered should this action be appealed and the judgment on either claim be reversed.
This result satisfies the purposes underlying the entitlement to attorney's fees under § 1988 as well as the purposes underlying Connecticut's common law doctrine of punitive damages. The purposes underlying § 1988 are satisfied because the plaintiff's attorneys receive a reasonable fee for their efforts. The purposes underlying the common law doctrine of punitive damages are also satisfied in that the plaintiff is compensated for all of his litigation expenses. Any further recovery would be a windfall.
C. Prejudgment Interest
Having prevailed on his state law claim for wrongful termination, the plaintiff seeks prejudgment interest pursuant to Connecticut General Statutes § 37-3a on the compensatory damages award of $44,076. The defendants contend that Connecticut General Statutes § 37-3a does not apply to the plaintiff's claim of wrongful termination of employment.
Connecticut General Statutes § 37-3a provides, in pertinent part, that "interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable." The trial court has discretion to decide whether to make an award of interest. Crowley v. Crowley, 46 Conn. App. 87, 96, 699 A.2d 1029 (1997). The determination of whether interest is a proper element of recovery ordinarily rests on whether the detention of money was wrongful under the circumstances. Id. at 97. The purpose of the statute is to compensate the prevailing party for the delay in obtaining money that rightfully belongs to him. Neiditz v. Morton S. Fine Associates, Inc., 199 Conn. 683, 691, 508 A.2d 438 (1986). Other factors to consider include whether the sum recovered was a liquidated amount and whether the party seeding interest has diligently presented the claim throughout the course of the proceedings. Prime Management Co., Inc. v. Steinegger, 904 F.2d 811, 817 (2d Cir. 1990). The fact that a legitimate dispute existed between the parties does not mean that an award of prejudgment interest is inappropriate. Id.
In this case, where the plaintiff seeks prejudgment interest only on the award of economic damages for his lost wages, the court is not persuaded by the defendants' argument that a wrongful termination claim is not the type of claim for which prejudgment interest would be appropriate. Cf. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 308, 472 A.2d 316 (1984) (observing that personal injury claims would not ordinarily constitute a claim for the wrongful detention of money before the rendering of judgment). Although the plaintiff seeks prejudgment interest under Connecticut law rather than federal law, this court finds persuasive the many federal precedents in this circuit which recognize the fairness of awarding prejudgment interest on back pay in employment termination cases. See, e.g., Miner v. City of Glens Falls, 999 F.2d 655, 662 (2d Cir. 1993) (affirming award of prejudgment interest on back pay where district court found that plaintiff had been deprived of the use of his salary); Clarke v. Frank, 960 F.2d 1146, 1153-54 (2d Cir. 1992) ("Prejudgment interest discourages an employer from attempting to `enjoy an interest — free loan for as long as [it can] delay paying back wages.' . . . Thus, we have held that "it is ordinarily an abuse of discretion not to include pre-judgment interest in a back-pay award.'") (Title VII case); Rao v. New York City Health Hospitals Corp., 882 F. Supp. 321, 325-28 (S.D.N Y 1995) (equitable to award prejudgment interest on entire damages award where virtually of the award is compensation for lost wages);Frank v. Relin, 851 F. Supp. 87, 89-91 (W.D.N.Y. 1994) (awarding prejudgment interest on back pay award for wrongful termination in violation of First Amendment rights).
The court finds that the circumstances of this case warrant an award of prejudgment interest under Connecticut law on the award of economic damages. The claim for prejudgment interest does not reach to the award of noneconomic damages but is limited to the award of economic damages — an amount that could easily have been calculated based on the plaintiff's lost wages. The jury found that the defendants' termination of the plaintiff was wrongful and that the plaintiff is entitled to an award of punitive damages. The court finds that the defendants' retention of the plaintiff's back pay was also wrongful and the plaintiff deserves to be compensated for the delay in obtaining that back pay. The plaintiff is therefore entitled to prejudgment interest on the economic damages award of $44,076 at the statutory rate of 10 percent from February 6, 1996 to the date of judgment.
CONCLUSION
The defendants' motion for judgment on Count III (doc. #69) is DENIED. The plaintiff's motion for judgment on Count III (doc. #70-1) is GRANTED. The plaintiff's motion for attorney's fees, interest, punitive damages and costs (doc. #70-2) is GRANTED in part and DENIED in part.
Based on the jury verdict, judgment on Counts I, II and V shall enter in favor of the defendants and against the plaintiff.
Also based on the jury verdict, judgment on Count IV shall enter in favor of the plaintiff and against the defendants.
Based on the special findings of the jury and this court's determination of the questions of law, judgment shall enter on Count III in favor of the plaintiff and against the defendants.
On Count III, the plaintiff is entitled to attorney's fees and costs pursuant to 42 U.S.C. § 1988 in the amount of $117,434.27.
On Count IV, the plaintiff is entitled to punitive damages in the amount of $28,025. However, to the extent that the plaintiff receives payment of the § 1988 award, his claim for $28,025 in punitive damages shall be deemed paid and satisfied.
On Counts III and IV, the plaintiff is entitled to prejudgment interest on the $44,076 award of economic damages at the rate of 10 percent from February 6, 1996 to the date of judgment.
SO ORDERED this 22nd day of September 1998 at New Haven, Connecticut.