Opinion
00 Civ. 5333 (JSM)(FM).
July 9, 2003.
REPORT AND RECOMMENDATION TO THE HONORABLE JOHN S. MARTIN
I. Introduction
In this action, plaintiff Julius Whitten ("Whitten") alleges that defendants Cross Garage Corporation ("Cross Garage") and Joseph Vassallo ("Vassallo") (together, the "defendants"), unlawfully terminated his employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); the Civil Rights Act of 1991, 42 U.S.C. § 1981a; and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"). (Compl. ¶ 1). Whitten also alleges that his unlawful termination violated certain state and city statutes, namely the New York Human Rights Law, N.Y. Exec. L. § 296, et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107. (Id. ¶ 4). Finally, Whitten claims that he was unlawfully retaliated against, in violation of Section 740 of the New York Labor Law, for reporting health violations to the New York City Department of Health ("Department of Health"). (Id.).
Following the defendants' failure to answer or otherwise respond to the complaint, Your Honor entered a default judgment and referred the matter to me to conduct an inquest regarding the damages, if any, to be awarded to Whitten. (Docket Nos. 5-6). By order dated September 5, 2001, I directed Whitten to serve and file an inquest memorandum by October 2, 2001, setting forth his proof of damages, as well as proposed findings of fact and conclusions of law, and the defendants were given until October 16, 2001 to file opposition papers. (Docket No. 7). At Whitten's request, I later extended the time for both sides to make their submissions. (Docket Nos. 8-10). Although Whitten complied with my orders, I heard nothing from the defendants even though they were sent copies of my scheduling orders.
On January 17, 2003, I held an inquest hearing to determine the amount of compensatory and punitive damages, if any, that Whitten should be awarded. Two witnesses testified at that hearing: Whitten and his wife, Flora Whitten.
By letter dated February 11, 2003, Kevin A. Fox, Esq., of Tannenbaum Helpern Syracuse Hirschtritt LLP, notified me that his law firm had just been retained by the defendants to represent them in this action. (Letter to the Court from Kevin A. Fox, Esq., dated February 11, 2003, at 1). Furthermore, he requested that I refrain from issuing my report and recommendation concerning damages until he had an opportunity to make a motion to vacate the default judgment and defend the action on the merits. (Id. at 1-2). That day, by memorandum endorsement, I advised counsel that because this case had been referred to me only for an inquest, that motion would have to be returnable before Your Honor. (Docket No. 15). I also delayed issuing my report and recommendation to permit Mr. Fox to make his motion, which I am advised, was first presented to the Court in the form of a proposed order to show cause on May 6, 2003. Although Your Honor permitted the defendants to make their motion, the order to show cause, which would have restrained me from proceeding, evidently was not signed.
For the reasons set forth below, I recommend that unless the default judgment is vacated, Whitten be awarded judgment in the amount of $148,466.48, consisting of backpay and prejudgment interest in the amount of $57,702.67, front pay in the amount of $12,490.40, compensatory and punitive damages in the amount of $60,000, attorney's fees in the amount of $17,949.50, and costs in the amount of $323.91.
II. Facts
In light of the defendants' default, Whitten's well-pleaded allegations concerning issues other than damages must be accepted as true. See Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993); Greyhound Exhibitgroup. Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); Time Warner Cable of New York City v. Barnes, 13 F. Supp.2d 543, 547 (S.D.N.Y. 1998).
On the basis of the complaint, the inquest papers, and the testimony given by Whitten and his wife at the inquest hearing, I find that the facts are as follows:
Whitten is a resident of the Bronx who was employed in Manhattan at all relevant times. (Compl. ¶ 7). He is an African-American male, born on May 17, 1949. (Id.). Defendant Cross Garage is a corporation organized and existing under the laws of the State of New York, with its principal office located in Manhattan. (Id. ¶ 8). Defendant Vassallo is the principal owner of Cross Garage. (Id. ¶ 9).
Whitten was employed as a parking attendant at a garage located on 445 East 80th Street, New York, New York ("Garage"), for a period of approximately 28 years, commencing in 1971. (Id. ¶ 10). From 1971 until June 1995, the Garage was managed by Claremont South Garage Co. (Id. ¶ 1). In or around June 1995, management of the Garage was taken over by Cross Garage, which was owned or controlled by Vassallo, who owns or controls a number of other parking garages. (Id. ¶¶ 11-12).
When Cross Garage became the manager, Whitten was one of three Garage employees, all of whom were African-American, over fifty years of age, and members of Local 272 of the Garage Employees Union. (Id. ¶ 15). In or around July 1995, "Vassallo stated that he was going to terminate, force the retirement of, or transfer these employees, including [Whitten], to another location, and . . . that if they did not like it, they could quit. (Id. ¶ 16). Whitten contacted his union regarding Vassallo's statements, and shortly thereafter, Vassallo confronted Whitten in the Garage. (Id. ¶ 17). He told Whitten that he did not want union workers and referred to Whitten under his breath as a "nigger." (Id.). As a result of Vassallo's statements and threats, the other two employees decide to retire, and Vassallo hired younger inexperienced employees. (Id. ¶ 18; 1/27/03 Tr. at 13). Subsequently, Whitten became the target of daily verbal abuse, which included derogatory racial remarks, made in front of customers and employees. (Compl. ¶ 21). Vassallo also refused to pay Whitten the salary increase to which he was entitled. (Id. ¶ 23).
In 1997, Vassallo converted the employees' locker room and adjacent toilet at the Garage into his private office. (Id. ¶¶ 24-25; 1/27/03 Tr. at 10). Because the Garage employees had no available toilet facilities, they began using the Garage drains as urinals and putting human feces wrapped in newspaper in the garbage cans. (Compl. ¶ 26; 1/27/03 Tr. at 12-13). When Whitten complained to Vassallo about the conditions, Vassallo told him, "[H]ey, . . . you nigger bastard, if you don't like it, . . . you can just find yourself another job." (1/17/03 Tr. at 11).
In February 1999, Whitten called the Department of Health and reported the unsanitary conditions and lack of toilet facilities. (Compl. ¶ 28). As a result of this complaint, inspectors from the Department of Health came to the garage, inspected the premises, and issued a Notice of Violation to Cross Garage and Vassallo. (Id. ¶¶ 29-30).
Whitten took a vacation from June 26 to July 18, 1999. (Id. ¶ 31). Upon his return to work on July 19, 1999, Vassallo told him, "You are terminated." (Id. ¶ 32). When asked the reason, Vassallo replied, "You nigger bastard, I know it was you who called the Department of Health, but I have you in black and white pissing on the floor." (Id.; see 1/27/03 Tr. at 15). Whitten was replaced by someone younger. (1/27/03 Tr. at 19).
On March 21, 2000, Whitten filed a timely Charge of Discrimination with the United States Equal Employment Opportunities Commission ("EEOC"). (Compl. ¶ 2 Ex. 1). On May 31, 2000, the EEOC issued a written determination concluding that there was "reasonable cause to believe" that Whitten's allegations of race and age discrimination were true. (Id. ¶ 2 Ex. 2). On June 9, 2000, the EEOC issued Whitten a "right to sue" letter. (Id. ¶ 3 Ex. 3). This suit was timely filed on July 18, 2000. (Docket No. 1).
Although Whitten alleges that the defendants violated various federal, state, and local laws, for the purposes of determining damages, I have generally limited the discussion that follows to Title VII and the ADEA because the legal analysis and damages recoverable are for the most part, similar under the various statutes.
A. Back Pay With Prejudgment Interest
Title VII makes it unlawful for an employer to discharge or discriminate against an employee because of that "individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. To make out a prima facie case of unlawful employment discrimination under Title VII, Whitten must show that: (a) he is a member of a protected class; (b) he was performing his duties satisfactorily; (c) he was discharged; and (d) the circumstances of his discharge give rise to an inference of discrimination. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). Whitten's complaint and testimony establishes such a prima facie Title VII claim. Moreover, the defendants failed to submit any evidence at the hearing suggesting a nondiscriminatory reason for Whitten's termination.
A plaintiff successful in a Title VII suit is entitled to an award of back pay. See 42 U.S.C. § 2000e-5(g)(1). "An award of [back pay] is the rule, not the exception." Carrero v. New York City Housing Authority, 890 F.2d 569, 580 (2d Cir. 1989). Title VII plaintiffs are entitled to back pay from the date of termination until the date of judgment, as well as prejudgment interest on the back pay award. Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 144-45 (2d Cir. 1993).
When Whitten was terminated, he was working approximately 40 hours per week, at an hourly rate of $12.01 per hour, for a weekly gross wage of $480.40. (See Declaration of Julius Whitten, dated October 31, 2001 ("Whitten Decl."), Ex. 2). The default judgment was entered on July 31, 2001. (Docket No. 5). Thus, from the date of discharge to the date of judgment, 106 weeks and one day elapsed. Accordingly, Whitten should be awarded $51,018.48 in backpay ($480.40/week × 106 weeks + $12.01/hour × 8 hours).
At the time of his termination, the defendants also owed Whitten one week's pay of $480.40 for the last week in June and six days of vacation totaling $576.48 ($12.01/hour × 8 hours × 6 days). (Whitten Decl. ¶ 29). In addition, had he not been improperly terminated, Whitten would have earned a $300 bonus for 1999. (Id.). He therefore is entitled to an additional $1,356.88 through the date of judgment.
The rate at which prejudgment interest is to be calculated is within the Court's discretion. See Endico Potatoes, Inc. v. CIT Group/Factoring, Inc., 67 F.3d 1063, 1071 (2d Cir. 1995). In this case, Whitten has requested interest at the statutory rate of nine percent per year set forth in Section 5004 of the New York Civil Practice and Rules. (Mem. of L. at 15). This, however, is more than double the prevailing interest rates on conservative financial investments during the same period. (See http://www. federalreserve.gov/releases/hl5/data/a/tcm6m.txt). Accordingly, I find that a five percent interest rate is more in accordance with reality. The per diem interest rate is therefore $7.17 ($52,375.36 × 0.05 ÷ 365), and Whitten is entitled to prejudgment interest for a period of 743 days, for a total of $5,327.31.
B. Front Pay
Front pay is an equitable remedy available to prevailing Title VII plaintiffs, Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2000), and is generally understood to be an award for lost compensation for the period between judgment and reinstatement. See Pollard v. E.I. duPont de Nemours Co., 532 U.S. 843, 848 (2001). Thus, front pay helps make a discharged employee whole. Whittlesey v. Union Carbide Corp., 742 F.2d 724, 729 (2d Cir. 1984). However, such compensation is not mandatory, and it is within the court's discretion to "award front pay, reinstate the plaintiff's employment, or do nothing at all with regard to future employment." Vernon v. Port Authority of N.Y. and N.J., 220 F. Supp.2d 223, 236 (S.D.N.Y. 2002). Further, an award of front pay should be discounted to its present value. See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1189 (2d Cir. 1992).
In 1998, prior to his termination, Whitten began working part-time at another garage managed by Rudin Management ("Rudin"). (Whitten Decl. ¶ 30). In or around April 1999, Whitten began working full-time for Rudin in addition to his full-time position at Cross Garage. (Id. ¶ 31). At the inquest hearing, Whitten testified that the reason he began working two full-time jobs was that he knew "it wouldn't be long before Joseph [Vassallo], you know, let me go, so I just went on and prepared myself." (1/17/03 Tr. at 17).
There is no need to consider reinstatement as a remedy in this case because Whitten's employment at Rudin actually pays him a higher wage. (Whitten Decl. ¶ 31; 1/17/03 Tr. at 17-18). Moreover, that employment is full-time. Had he not been summarily terminated on July 19, 1999, Whitten could theoretically have continued working two full-time jobs. It is more likely, however, that Whitten would have voluntarily left his job at Cross Garage before too long since he had a higher paying job at Rudin. In these circumstances, I find that six months of front pay, amounting to $12,490.40 ($480.40/week × 26 weeks), is reasonably sufficient to make Whitten whole. Although usually such an award should be discounted to present value, it is unnecessary to do so here because six months from the date of judgment has long since passed.
C. Double Damages under the ADEA
The ADEA allows a prevailing plaintiff to recover liquidated or double damages in an amount equal to his back pay and benefits where the statutory violation was "willful." See 29 U.S.C. § 626(b); Vernon v. Port Authority of NY/NJ, 2003 WL 1563219, at *12 (S.D.N.Y. Mar. 26, 2003). Generally speaking, "a plaintiff's replacement by a significantly younger person is evidence of age discrimination." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000). Such discrimination is "willful" if "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." Trans World Airlines. Inc. v. Thurston, 469 U.S. 111, 128 (1985) (quoting Air Line Pilots Ass'n, Int'l v. Trans World Airlines. Inc., 713 F.2d 940, 956 (2d Cir. 1983)). Although proof of specific intent to violate the act is not required to show willfulness, Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1571 (2d Cir. 1989), "double damages may properly be awarded when the proof shows that an employer was indifferent to the requirements of the governing statute and acted in a purposeful, deliberate, or calculated fashion."Benjamin v. United Merchants and Mfrs., Inc., 873 F.2d 41, 44 (2d Cir. 1989).
Although Whitten may be able to establish a prima facie case of age discrimination based on his testimony that he was replaced by someone younger, (1/17/03 Tr. at 19), he has not presented enough evidence to demonstrate that Vassallo deliberately or purposefully discriminated against him on the basis of age. Accordingly, Whitten is not entitled to a doubling of his back pay.
D. Nonpecuniary and Punitive Damages
Under Title VII, a court may also award a sum of money as compensation for "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." 42 U.S.C. § 1981a(b)(3). A prevailing Title VII plaintiff may also recover punitive damages if he "demonstrates that the [defendant] engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference." Id. § 1981 a(b)(1). However, Title VII imposes a cap on the maximum compensatory and punitive damage award that a plaintiff can recover which is based on the size of the employer's staff. Assuming that Cross Garage had more than 14, but fewer than 101 employees, as appears likely, Title VII places a cap of $50,000 on Whitten's compensatory and punitive damages. See id. § 1981a(b)(3)(A). Under the New York Human Rights Law, however, an award of compensatory damages is not subject to any limitation. Similarly, there is no statutory limitation on the maximum amount of punitive damages awardable under the New York City Human Rights Law.
In cases involving "typical" emotional distress, some courts have remitted jury awards for emotional distress to between $5,000 and $30,000. Kuper v. Empire Blue Cross Blue Shield, 2003 WL 359462, at *12 (S.D.N.Y. Feb. 18, 2003) (collecting cases). In other similar cases, courts have remitted such awards to between $30,000 and $75,000, even though "the only evidence of emotional distress has been the plaintiff's testimony, [and] the plaintiff claims no physical manifestations." Id. at *13 (collecting cases). Here, Whitten testified that due to Vassallo's constant racial epithets, he felt "belittled" and "angry." (1/17/03 Tr. at 19). Whitten's wife also testified that the racial slurs made her husband "feel much less than human."(Id. at 23). She stated that Vassallo's constant derogatory remarks made Whitten feel "mad" and "angry," and that this affected his ability to have a relationship with the children. (Id.). In light of this testimony, I find that an award of $40,000 in compensatory damages is appropriate.
Although there is no limit on an award of punitive damages under the New York City Human Rights Law, the $50,000 cap for compensatory and punitive damages under 42 U.S.C. § 1981a(b)(3) serves as a useful guidepost. Thus, if Section 1981a(b)(3) were controlling, Whitten would be entitled to a maximum of $10,000 in punitive damages ($50,000 — $40,000). Under that statute, a plaintiff need not show that the defendants' conduct was "extraordinarily egregious" in order to recover punitive damages. Luciano v. Olsten Corp., 110 F.3d 210, 220 (2d Cir. 1997). Here, even if one were to find that Vassallo's racial epithets were garden variety (which I do not), the deprivation of toilet facilities to which he was subjected would not be tolerated in a jail, and is nothing short of shocking. For that reason, I find that he should be awarded an additional $20,000 in punitive damages.
E. Attorney's Fees and Costs
A plaintiff prevailing in a Title VII suit is entitled to recover his attorney's reasonable fees and costs. 42 U.S.C. § 2000e-5(k). Attorney's fees are determined using the lodestar method, which entails multiplying the number of hours reasonably spent by a reasonable hourly rate. See, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In the Second Circuit, a party seeking an award of attorney's fees must support that request with contemporaneous time records that show, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children. Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Fee applications that do not contain such supporting data "should normally be disallowed." Id. at 1154. Furthermore, the Court has a great deal of discretion in awarding attorney's fees and can deduct hours from the lodestar calculation if it finds that the hours charged are superfluous or unreasonable. Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d Cir. 1997).
In prosecuting this action, Whitten engaged the services of Daniel, Siegel Bimbler LLP, which merged with the law firm of Cowan, DeBaets, Abrahams Sheppard LLP in November 2002. At both firms, the attorney handling this matter was Al J. Daniel, Jr., who has submitted an affidavit and a supplemental declaration setting forth: (a) his professional experience; (b) the number of hours he devoted to this action and the nature of the work performed; and (c) the billing rate at which he seeks to be compensated. (See Affidavit of Al J. Daniel, Jr., Esq., dated Nov. 1, 2001 ("Daniel Aff."), Exs. 2-3; Supplemental Declaration of Al J. Daniel, Jr., Esq., dated Jan. 31, 2003). Based upon my review, both the number of hours expended and the hourly rates for these legal services generally seem reasonable. Mr. Daniel, however, also billed at his customary hourly rate for services more appropriately handled by a paralegal. I have therefore reduced his hourly rate to $75 for the approximately five hours that he spent performing such routine tasks as traveling to court to file papers, ensuring that service was effected, and forwarding copies of documents. Following that minimal adjustment, I recommend that Whitten be awarded attorney's fees in the amount of $16,392 for services rendered prior to the inquest hearing ($285/hour × 56.2 hours + $75/hour × 5 hours), plus an additional $1,557.50 for services rendered in connection with the hearing ($350/hour × 4.45 hours), for a total of $17,949.50.
Whitten also seeks to recover $342.76 in costs, consisting of filing fees, process service fees, copying fees, messenger service fees, and postage. (Daniel Aff. Ex. 3). The costs for which a plaintiff may recover do not include messengers and postage. See Local Civ. R. 54.1(c). After making an adjustment for these items, Whitten is entitled to costs in the amount of $323.91.
V. Conclusion
For the reasons set forth above, I recommend that Whitten be awarded damages, including attorney's fees and costs, totaling $148,466.48.
VI. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable John S. Martin, United States District Judge, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Martin. Any failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).