Jimenez v. Paw-Paw's Camper City Inc.

Full title: JAMES V. JIMENEZ v. PAW-PAW'S CAMPER CITY, INC

Court: United States District Court, E.D. Louisiana

Date published: Feb 22, 2002

Civil Action No. 00-1756 Section "N" (2) (E.D. La. Feb. 22, 2002)

Opinion

Civil Action No. 00-1756 Section "N" (2)

February 22, 2002

ORDER AND REASONS

JOSEPH C. WILKINSON, JR., U.S. Magistrate Judge.

This is an employment discrimination case tried before me with the consent of the parties pursuant to 28 U.S.C. § 636 (c). At the end of four trial days, the jury returned a verdict that found liability on a single claim and awarded punitive damages, but no compensatory damages, in favor of plaintiff, James V. Jimenez, and against defendant, Paw-Paw's Camper City, Inc. Jury Verdict Form, Record Doc. No. 156. The court subsequently entered judgment on the verdict. Record Doc. No. 158.

Both parties filed timely post-trial motions. Jimenez filed a motion for post-judgment relief pursuant to Fed.R.Civ.P. 59(e), seeking an award of compensatory damages, an award of nominal damages and injunctive relief. Alternatively, he requests a new trial on compensatory damages only, or in the further alternative, a new trial on all issues if the court grants Paw-Paw's Rule 50 motion. Record Doc. No. 159. Although Paw-Paw's filed its opposition memorandum two days late, Record Doc. No. 164, without seeking leave for the late filing, Local Rule 7.5E, the court has considered it. Plaintiff received leave to file a reply memorandum. Record Doc. Nos. 166, 167.

Paw-Paw's filed a post-trial motion for judgment as a matter of law; or in the alternative, a motion for new trial; or in the further alternative, a motion for remittitur. Record Doc. No. 160. Jimenez filed a timely opposition memorandum. Record Doc. No. 163.

In addition, Jimenez filed a motion for attorney's fees and costs, supported by several affidavits and time sheets. Record Doc. No. 162. Paw-Paw's filed a timely opposition memorandum. Record Doc. No. 165. The court ordered plaintiff to file a supplemental memorandum and any additional evidence to support his motion, Record Doc. No. 168, and plaintiff did so. Record Doc. No. 169.

Having considered the complaint, as amended, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that plaintiff's motion for post-judgment relief is GRANTED IN PART to award nominal damages of $1.00. The remainder of plaintiff's motion is DENIED.

IT IS FURTHER ORDERED that defendant's motion for judgment as a matter of law; or in the alternative, motion for new trial; or in the further alternative, motion for remittitur is GRANTED IN PART to order a remittitur in the punitive damages award or, if plaintiff refuses to accept a remittitur, a new trial on punitive damages only. The remainder of the motion is DENIED.

IT IS FURTHER ORDERED that plaintiff's motion for attorney's fees and costs is GRANTED IN PART AND DENIED IN PART, as set out below.

I. PROCEDURAL BACKGROUND

Jimenez sued his former employer, Paw-Paw's, pursuant to Title VII and 42 U.S.C. § 1981. He claimed that Paw-Paw's demoted him, paid him less, subjected him to a hostile work environment and constructively discharged him based on his Mexican national origin and Hispanic race. Complaint, Record Doc. No. 1; First Amended Complaint, Record Doc. No. 65.

At trial, Paw-Paw's moved at the close of plaintiff's case-in-chief and again at the close of all the evidence for judgment as a matter of law. The court denied the motions and the case was submitted to the jury. In response to special interrogatories, the jury found that Paw-Paw's had subjected Jimenez to a hostile work environment, but had neither constructively discharged him nor discriminated against him by paying him less or demoting him on the basis of his race or national origin. The jury awarded plaintiff no compensatory damages. However, the jury also found that Paw-Paw's had acted with malice or reckless indifference to Jimenez's federally protected rights in subjecting him to a hostile work environment, and it awarded plaintiff $161,000 in punitive damages. Jury Verdict Form, Record Doc. No. 156.

II. ANALYSIS

A. Standard of Review Under Fed.R.Civ.P. 50

Paw-Paw's has renewed its motion for judgment as a matter of law under Federal Rule of Civil Procedure 50.

[Judgment as a matter of law] is appropriate when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." There is no legally sufficient evidentiary basis when "the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict." We are to review the record as a whole, drawing all reasonable inferences in favor of the nonmoving party and without making credibility determinations or weighing the evidence. We also "give credence to . . . that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Finally, there must be more than a mere scintilla of evidence in the record to render the grant of [judgment as a matter of law] inappropriate.

Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 218 (5th Cir. 2001) (quoting Fed.R.Civ.P. 50(a); Rubinstein v. Administrators of Tulane Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 151 (2000)) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251 (1986); Krystek v. University of So. Miss., 164 F.3d 251, 255 (5th Cir. 1999)) (additional internal quotations omitted).

B. Standard of Review Under Fed.R.Civ.P. 59

Jimenez has moved to alter or amend the judgment under Rule 59(e) to award him compensatory or, alternatively, nominal damages. Rule 59 does not specify the permissible grounds for granting a motion to amend or alter the judgment, but the Fifth Circuit has held that the decision on such a motion is within the district court's discretion and that the decision and decisionmaking process need only be reasonable. St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997); Ford Motor Credit Co. v. Bright, 34 F.3d 322, 324 (5th Cir. 1994) (citation omitted).

Federal district courts in Louisiana have formulated the following standards for considering Rule 59(e) motions.

Altering, amending, or reconsidering a judgment is an extraordinary measure, which courts should use sparingly. The remedy is so extraordinary that the Fifth Circuit has directed that the Rule 59(e) standard "favors denial of motions to alter or amend a judgment." . . . .

Generally, the grounds for granting a request to alter or amend a judgment under Rule 59(e) of the FRCP are as follows: (1) to correct manifest errors of law or fact upon which judgment is based; (2) the availability of new evidence; (3) the need to prevent manifest injustice; or (4) am intervening change in controlling law. A Rule 59(e) motion should not be used to relitigate prior matters that should have been urged earlier or that simply have been resolved to the movant's dissatisfaction.

In re Self, No. 01-0758, 2001 WL 1456386, at *2 (W.D. La. Oct. 10, 2001) (Little, C.J.) (citing 11 Charles A. Wright, Arthur R. Miller Mary Kay Kane, Federal Practice Procedure § 2810.1, at 124-27 (hereinafter "Wright Miller"); Fields v. Pool Offshore, Inc., No. 97-3170, 1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998) (Clement, J.), aff'd, 182 F.3d 353 (5th Cir. 1999); Motiva Enters. LLC v. Wegmann, No. 00-3096, 2001 WL 246414, at *2 (E.D. La. Mar. 12, 2001) (Vance, J.); Clay v. Daichi Shipping, No. 97-3630, 2000 WL 6269, at *1 (E.D. La. Jan. 5, 2000) (Fallon, J.)) (quoting Southern Constructors Group. Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993)); accord In re Babcock Wilcox Co., No. 00-558, 2001 WL 1204074, at *1 (E.D. La. Oct. 11, 2001) (Vance, J.).

Both plaintiff and defendant request a new trial under Rule 59(a) in the alternative. Paw-Paw's moves for a new trial on grounds that the evidence was insufficient to support the jury's verdict. Plaintiff requests a new trial if the court grants defendant's motion for judgment as a matter of law.

Under Rule 59(a), "[a] new trial may be granted to all or any of the parties and on all or part of the issues . . . in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed.R.Civ.P. 59(a). Rule 59 does not specify the permissible grounds for a motion for new trial, but it is clear that "[n]ew trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great weight of the evidence." Dawson v. Wal-Mart Stores, Inc., 978 F.2d 205, 208 (5th Cir. 1992); accord Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 269 (5th Cir. 1998);Carter v. Fenner, 136 F.3d 1000, 1010 (5th Cir. 1998). When considering new trial motions, the court may set aside the verdict even if there is substantial evidence to support it. Moreover, the court "is not required to take that view of the evidence most favorable to the verdict-winner" and "is free to weigh the evidence." Wright Miller, Federal Practice and Procedure § 2806, at 65-66 (1995); accord Whitehead, 163 F.3d at 270 n. 2. "The district court abuses its discretion by denying a new trial only when there is an absolute absence of evidence to support the jury's verdict." Seidman v. American Airlines, Inc., 923 F.2d 1134, 1140 (5th Cir. 1991) (quotation omitted); accord Whitehead, 163 F.3d at 269.

In the context of reviewing an award of punitive damages, the court must bear in mind that the Due Process Clause of "the Constitution imposes a substantive limit on the size of punitive damages awards."Honda Motor Co. v. Oberg, 512 U.S. 415, 420 (1994). "Punitive damages pose an acute danger of arbitrary deprivation of property. Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a defendant's net worth creates the potential that juries will use their verdicts to express biases against big businesses. . . ." Id. at 432. Judicial review of the amount awarded provides a procedural safeguard against that danger. Id.

C. Plaintiff's Motion for Post-Judgment Relief

1. Plaintiff's Request for Additur

Jimenez argues that the court should amend the judgment by additur to award him compensatory damages and lost earnings. He points out that the jury answered "yes" to Jury Interrogatory No. 1, which asked, "Do you find by a preponderance of the evidence that defendant, Paw-Paw's Camper City, Inc., subjected plaintiff, James V. Jimenez, to a racially hostile work environment and that such discrimination was a proximate cause of damage to Jimenez?" Record Doc. No. 156 (emphasis by plaintiff). Therefore, Jimenez argues, the jury should have awarded him compensation for the damage it found.

"[A]n additur grant is an inherent recognition that a verdict contravenes the clear weight of the evidence. . . ." Clay v. Gordon, 205 F.3d 1339, 2000 WL 191936, at *2 (6th Cir. 2000) (citation omitted). "It has been settled since the Supreme Court's decision in Dimick v. Schiedt that the Seventh Amendment generally proscribes additur after federal jury trials." Id. at *3 (citing Dimick v. Schiedt, 293 U.S. 474, 486-87 (1935); Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 985 (5th Cir. 1989)) (additional citations omitted); accord Taylor v. Green, 868 F.2d 162, 164 (5th Cir. 1989). There is a narrow exception to the Dimick rule for undisputed, "definite and incontrovertible" damages only. Clay, 2000 WL 191936, at *3 (citing Liriano v. Hobart Corp., 170 F.3d 264, 272-73 (2d Cir. 1999); EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1252 (11th Cir. 1997); Jones, 870 F.2d at 985).

No such definite and incontrovertible damages are at issue in Jimenez's request for additur. Additur is not available to cure an inadequate verdict. Green v. Administrators of Tulane Educ. Fund, No. 97-1869, 2000 WL 341027, at *3 (E.D. La. Mar. 30, 2000) (Duval, J.) (citing Jones, 870 F.2d at 985); Chaney v. New Orleans Publ. Facility Mgmt., Inc., No. 96-4023, 1998 WL 30725, at *4 (E.D. La. Jan. 23, 1998) (Clement, J.) (citing Jones, 870 F.2d at 985).

Jimenez argues there was sufficient evidence for the jury to find that he suffered a loss of earnings as a result of being demoted and being paid less than his white peers. However, the jury clearly rejected that theory of liability when it answered "no" to Jury Interrogatory No. 3, which asked, "Do you find by a preponderance of the evidence that Paw-Paw's discriminated against Jimenez by demoting him or paying him less based on his race or national origin and that such discrimination was a proximate cause of damage to Jimenez?," and refused to award such damages when it left blank the line in Jury Interrogatory No. 4 marked "Lost Earnings." The record contains a legally sufficient evidentiary basis on which the jury concluded that plaintiff failed to prove lost earnings as a result of a hostile work environment, which is the only claim on which he prevailed, as opposed to lost earnings as a result of poor job performance or other non-job related reasons noted below about which there was ample evidence at trial. Accordingly, his motion to recover lost earnings is denied.

Further, to the extent plaintiff requests additur for emotional distress or similar general damages, the jury rejected any such award when it left blank the line in Jury Interrogatory No. 4 marked "Past and Future Mental Anguish, Mental Pain and Suffering, and Loss of Capacity for Enjoyment of Life." The jury's conclusion was based on legally sufficient evidence and was not against the great weight of the evidence. There was ample evidence from which the jury could have concluded that plaintiff's emotional problems were attributable to factors other than his employment environment, including the breakup of his marriage, the death of his brother, his own drinking and a personality disorder about which defendant's psychiatric expert testified. Thus, there was legally sufficient evidence, including but not limited to plaintiff's own testimony, from which the jury could easily have concluded that plaintiffs emotional distress was caused by other stressors in his life, rather than by the hostile environment he experienced at work.

Jimenez has not established any of the factors used by courts to grant a Rule 59(e) motion. Because such a motion should not be used to relitigate prior matters that simply have been resolved to the movant's dissatisfaction, this portion of plaintiff's motion for additur is denied.

2. Plaintiff's Request for Nominal Damages

Although the jury found that Paw-Paw's created a hostile work environment that violated Jimenez's rights to be free from discrimination under Title VII and/or Section 1981,¹ the jury awarded no compensatory damages. Plaintiff requests an award of nominal damages on this claim.

1 The court instructed the jury that the standards for finding racial discrimination are the same under Title VII and Section 1981. Jury Instructions, Record Doc. No. 155; see Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000). Therefore, the court did not ask the jury to differentiate in its verdict between the two legal theories.

Racial discrimination is a "fundamental injury to the individual rights of a person." Goodman v. Lukens Steel, 482 U.S. 656, 661 (1987). As the Supreme Court has stated in a case brought under 42 U.S.C. § 1983:

Common-law courts traditionally have vindicated deprivations of certain "absolute" rights that are not shown to have caused actual injury through the award of a nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights.

Carey v. Piphus, 435 U.S. 247, 266 (1978). "[N]ominal damages . . . are the appropriate means of "vindicating' rights whose deprivation has not caused actual, provable injury." Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 308 n. 11 (1986) (citing Carey, 435 U.S. at 266). "Carey obligates a court to award nominal damages when a plaintiff establishes the violation of his [constitutional] right . . . but cannot prove actual injury." Farrar v. Hobby, 506 U.S. 103, 112 (1992) (citingCarey, 435 U.S. at 266).

Thus, the Fifth Circuit has held that a plaintiff who proves a violation either of his constitutional rights under Section 1981 or of his statutory rights under Title VII, but no actual injury, is entitled to recover at least nominal damages. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 940, 941 (5th Cir. 1996) (Section 1981 and Title VII) (citing Carey, 435 U.S. at 264); Gore v. Turner, 563 F.2d 159, 164 (5th Cir. 1977) (Section 1981). Other courts have reached similar conclusions under both Title VII and Section 1983, which is similar to Section 1981 in that it provides a statutory remedy for violation of a constitutional right. See Bailey v. Runyon, 220 F.3d 879, 880 (8th Cir. 2000) (nominal damages under Title VII); Searles v. Van Bebber, 251 F.3d 869, 879 (10th Cir. 2001) (nominal damages are mandatory under Section 1983 for violation of constitutional rights); Louisiana ACORN Fair Housing v. LeBlanc, 211 F.3d 298, 302 (5th Cir. 2000) (in the Fifth Circuit, a Section 1983 plaintiff who proves a constitutional violation is entitled to nominal damages in the absence of actual injury); Alexander v. Riga, 208 F.3d 419, 429 (3d Cir. 2000) (citing Carey, 435 U.S. at 266-67) (plaintiff is entitled to nominal damages for constitutional violation without actual injury); but see Walker v. Anderson Elec. Connectors, 944 F.2d 841, 844 (11th Cir. 1991) (Carey does not compel an award of nominal damages for "a violation of purely statutory rights under Title VII").

In the instant case, Jimenez brought claims under both Section 1981 and Title VII, and his proof of each claim was identical. The Fifth Circuit in Patterson instructed the district court, which had conducted a bench trial, to award nominal damages under both statutes on remand.Patterson, 90 F.3d at 940, 941.

At the instant trial, neither party requested, nor did the court give, a jury instruction that the jury must award nominal damages if it found liability but no actual injury.

An appropriate remedy for that error, however, is for the court itself to enter judgment awarding the claimant nominal damages. Although the Seventh Amendment generally prohibits a court from augmenting a jury's award of damages, that proscription is not violated by the court's entering judgment awarding nominal damages when the jury has failed or refused to do so and the claimant is entitled to such damages as a matter of law.

Robinson v. Cattaraugus County, 147 F.3d 153, 162 (2d Cir. 1998) (citations omitted); accord Bailey, 220 F.3d at 880; Hicks v. Brown Group. Inc., 902 F.2d 630, 634 (8th Cir. 1990), vacated on other grounds, 499 U.S. 914 (1991); Beckford v. Irvin, 49 F. Supp.2d 170, 182 (W.D.N.Y. 1999); see also Fyfe v. Curlee, 902 F.2d 401, 406 (5th Cir. 1990) (Section 1983 plaintiff at minimum was entitled to nominal damages because her constitutional rights were violated; after new trial on damages and other remedies, district court on remand must enter judgment for at least nominal damages of $1); but see Kerr-Selgas v. American Airlines, Inc., 69 F.3d 1205, 1215 (1st Cir. 1995) (compensatory damages award on plaintiff's Title VII claim was reduced to zero by court's post-verdict allocation of entire compensatory damages award to state law claim to avoid Title VII damages cap; liability verdict did not compel award of nominal damages on Title VII claim in absence of timely request either for jury charge on nominal damages or for additur to compensatory damages verdict on Title VII claim). In the instant case, unlike inKerr-Selgas, plaintiff timely moved for an additur of nominal damages.

Accordingly, the court will amend the judgment to correct a manifest error of law by adding $1.00 in nominal damages.

3. Plaintiff's Request for Equitable Relief

Jimenez also moves for injunctive and declaratory relief under Title VII based on the prayer in his original complaint for "all further relief as this Honorable Court deems proper." Record Doc. No. 1. "It is a well-settled rule that a joint pretrial order signed by both parties supersedes all pleadings and governs the issues and evidence to be presented at trial." McGehee v. Certainteed Corp., 101 F.3d 1078, 1080 (5th Cir. 1996); see Fed.R.Civ.P. 16(e) (pre-trial order "shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pre-trial conference shall be modified only to prevent manifest injustice.").

Plaintiff did not raise any claim for injunctive or declaratory relief in the pretrial order. To the extent his current motion could be construed as a request to modify the pretrial order, it is denied. Walker, 944 F.2d at 844.

A declaratory judgment that Paw-Paw's created a hostile environment while Jimenez worked there would accomplish nothing that the jury's verdict has not already done. Further, because plaintiff left Paw-Paw's employ long ago, injunctive relief would not be appropriate regarding defendant's future conduct and would only prejudice defendant at this late date. "It would be unfair to [Paw-Paw's] to give [Jimenez] relief which [he] did not request; relief for which [Paw-Paw's] was never permitted to establish a defense." Id. Accordingly, this portion of plaintiff's motion is denied.

D. Defendant's Motion for Judgment as a Matter of Law; in the Alternative, Motion for New Trial: in the Further Alternative. Motion for Remittitur

1. The Jury's Liability Verdict Is Supported by the Evidence

Paw-Paw's memorandum in support of its motion to overturn the liability verdict proceeds from the mistaken belief that the jury found Paw-Paw's had unlawfully discriminated, against Jimenez in his pay and demotions but had not subjected him to a hostile work environment. The jury verdict form is clear that the jury actually found the opposite on these two claims. Thus, defendant argues that it proved its legitimate business reasons for its employment decisions regarding plaintiff and that he failed to show that its decisions were pretextual. Because Paw-Paw's prevailed on Jimenez's discriminatory pay and demotion claim, it is unnecessary to address that argument.

Assuming that defendant intended to request judgment as a matter of law on the jury's finding of liability for a hostile work environment, its motion is denied. The record as a whole contains a legally sufficient evidentiary basis for a reasonable jury to find against Paw-Paw's on this claim. Several witnesses, including Jimenez, testified that he was the target of repeated, ethnically offensive slurs by Paw-Paw's managers and employees that occurred frequently and continued over an extensive period of time, and that the company did nothing to correct the hostile situation. Although Paw-Paw's witnesses denied this conduct, the jury was entitled to weigh the credibility of each witness and to disbelieve defendant's witnesses. The evidence was sufficient for a reasonable jury to find that this conduct was more than simple teasing, offhand comments and isolated incidents, and that it affected a term, condition or privilege of plaintiff's employment; in other words, that it was sufficiently severe or pervasive that a reasonable person in his position would find his work environment to be hostile. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Mota v. University of Tex., 261 F.3d 512, 524 (5th Cir. 2001); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001); McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998); DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 593 (5th Cir. 1995); Veal v. ATT Corp., No. 99-370, 2000 WL 303299, at *7 (E.D. La. Mar. 22, 2000) (Duval, J.).

For the same reasons, the jury's liability verdict is not against the great weight of the evidence and defendant is not entitled to a new trial on liability.

2. The Special Verdict Answers Are Both Consistent and Supported by the Evidence

Paw-Paw's argues that the jury's special verdict answers are inconsistent and that the verdict must be set aside because the jury found liability on one of plaintiff's claims (although defendant argues the wrong one) but not the other two, and because it awarded punitive damages without awarding any compensatory damages. The court is "`required under the Seventh Amendment to make a concerted effort to reconcile apparent inconsistencies in answers to special verdicts if at all possible.'" Ellis v. Weasler Eng'g Inc., 258 F.3d 326, 343 (5th Cir. 2001) (quoting Atlantic Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962)).

In reviewing jury answers to special verdicts, we . . . must ask whether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted, even though the form of the issue or alternative selective answers prescribed by the judge may have been the likely cause of the difficulty and largely produced the apparent conflict. Only if there is no view of the case that will make the jury's answers consistent may we set aside its decision.

In considering whether the seemingly inconsistent verdicts may be reconciled, the court must view the evidence in the light most favorable to upholding the jury's decision by a finding of consistency. Additionally, the special verdicts must be construed in light of the surrounding circumstances of the case.

Id. (quotations and citations omitted) (emphasis added).

In this case, the jury's verdict is not inconsistent. The jury was attentive throughout the trial. Its responses to the jury interrogatories are logical and indicate that it followed the court's instructions. The jury could reasonably and consistently find, based on the evidence and the differing standards of proof for each legal claim, that Jimenez proved his hostile environment claim yet failed to prove either his constructive discharge or discriminatory pay and demotions claims.

As noted above, to prove his hostile environment claim, plaintiff only had to prove that the racially offensive conduct affected a term, condition or privilege of his employment; in other words, that it was sufficiently severe or pervasive that a reasonable person in his position would find his work environment to be hostile. Celestine, 266 F.3d at 353; see Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998) ("The ongoing racial harassment suffered by Huckabay was all of the same sort, it was continual, and it was a permanent condition of his workplace." Plaintiff stated that he was "constantly ribbed and harassed" by and endured "constant remarks" from his coworkers.). To recover on his legally distinct claim of constructive discharge, however, plaintiff had to prove that Paw-Paw's intentionally made his working conditions so intolerable that a reasonable person would feel compelled to resign. Hunt v. Rapides Healthcare Sys., No. 00-31260, 2001 WL 1650961, at *12 (5th Cir. Dec. 26, 2001). Significantly, a constructive discharge claim requires plaintiff to prove a "greater severity or pervasiveness of harassment than the minimum required to prove a hostile work environment claim." Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998). Thus, the jury reasonably and consistently could have found that plaintiff's work environment was hostile to plaintiff's Hispanic national origin but not so intolerable that a reasonable person would have felt compelled to resign. See Landgraf v. USI Film Prods., 968 F.2d 427, 429, 430 (5th Cir. 1992), aff'd, 511 U.S. 244 (1994) (Plaintiff suffered sexual harassment "sufficiently severe to support a hostile work environment claim," but "not severe enough that a reasonable person would have felt compelled to resign. . . . The harassment here, while substantial, did not rise to the level of severity necessary for constructive discharge." There also was evidence of another plausible reason, other than harassment, for plaintiff's resignation.).

Finally, as to plaintiff's third claim of discrimination based on his national origin or Hispanic race, defendant met its burden of producing legitimate, nondiscriminatory reasons for demoting Jimenez and reducing his pay, i.e., that his job performance was below acceptable levels. Paw-Paw's also produced evidence that it had demoted poorly performing white employees. Jimenez thus had to prove "that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Reeves, 530 U.S. at 143 (quotation omitted). The jury reasonably could have found that plaintiff's evidence failed to rebut Paw-Paw's legitimate reasons for demoting Jimenez and paying him less. A decision on this claim required entirely different factual findings than for plaintiff's other two claims. Thus, the jury's verdicts on liability are consistent and supported by the evidence.

As to damages, the jury could have found, based on the evidence and its weighing of the credibility of the witnesses, that even though Paw-Paw's subjected plaintiff to a hostile work environment, Jimenez failed to prove by a preponderance of the evidence that his alleged earnings losses, out-of-pocket expenses and emotional distress or other intangible damages were caused by that particular discriminatory conduct, rather than by other causes about which there was ample evidence. As noted above, the jury rejected plaintiff's constructive discharge and discriminatory demotion claims, which might have supported his loss of earnings claim, and implicitly accepted defendant's explanation that Jimenez was demoted for poor performance. Nonetheless, the law provides that even a poor employee must not be subjected to a workplace hostile to his race or national origin. The jury's finding that plaintiff suffered no actual harm as a result of the sustained verbal harassment and was therefore entitled to no compensatory damages was reasonable and not inconsistent with its liability finding.

The jury's liability finding that defendant's conduct justified an award of punitive damages is not inconsistent with the remainder of the verdict. By the same weighing of the evidence, the jury reasonably could have found that the hostile work environment at Paw-Paw's demonstrated that defendant acted intentionally and maliciously or with reckless indifference to plaintiff's federally protected rights, as required to award punitive damages under 42 U.S.C. § 1981a, which applies to Title VII cases. A defendant acts with malice or reckless indifference to the federally protected rights of a plaintiff if the defendant knew that it may be acting in violation of federal law or if it acted with reckless disregard of that law. Kolstad v. American Dental Ass'n, 527 U.S. 526, 535 (1999). Jimenez's evidence, which the jury found credible, sufficiently demonstrated that his work environment was replete with frequent and continuous national origin slurs by managers and employees throughout his employment and that Paw-Paw's did nothing to correct such conduct, although harassment in the workplace based on national origin has been prohibited by Title VII for decades. Patterson v. McLean Credit Union, 491 U.S. 164, 180 (1989) (citing Firefighters Inst. for Racial Equality v. St. Louis, 549 F.2d 506, 514-15 (8th Cir. 1977); Rogers v. Equal Employment Opportunity Comm'n, 454 F.2d 234 (5th Cir. 1971)),superseded by statute on other grounds as stated in Harrington v. Harris, 118 F.3d 359, 367 n. 8 (5th Cir. 1997); see Louisiana ACORN, 211 F.3d at 305 (King, C.J., dissenting in part) (punitive damages are appropriate when "racially discriminatory behavior exhibited by this defendant has been unlawful for thirty years"). The evidence in this case suffices to support an award of punitive damages under the Kolstad standard.

Thus, defendant is not entitled to judgment notwithstanding the verdict. For the same reasons, the jury's verdict was not against the great weight of the evidence and defendant is not entitled to a new trial on any liability issue.

3. Plaintiff May Recover Punitive Damages Despite the Absence of a Compensatory Damages Award

Relying on the First Circuit's opinion in Kerr-Selgas, 69 F.3d at 1214, Paw-Paw's argues that an award of compensatory or nominal damages is a prerequisite to a punitive damages award. Because the court must grant an award of nominal damages to Jimenez, and has done so in this order, this argument fails.

Even if the court had not awarded nominal damages, defendant's argument that Jimenez cannot recover punitive damages in the absence of compensatory or nominal damages is not founded on settled law. As current Chief Judge Berrigan of this court recently noted in a similar case,

[d]efendants' bald assertion that compensatory damages are a necessary predicate for punitive damages under Title VII is a far from settled proposition. Compare Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008, 1010 (7th Cir. 1998) (punitive damages are available on Title VII claims even without any compensatory or nominal damage award) with Kerr-Selgas . . ., 69 F.3d [at] 1215 . . . (punitive damages inappropriate on Title VII claims without compensatory or nominal damages award).

The Fifth Circuit has not addressed the issue for Title VII claims. In a case considering the issue for claims under the Federal Fair Housing Act ("FHA"), 42 U.S.C. § 3601, et seq., the court noted that "[t]here is no established federal common law rule that precludes the award of punitive damages in the absence of an award of compensatory damages." The divided panel, over Chief Judge King's dissent, ultimately held that, under the FHA, it was proper to "limit punitive damages awards, absent an actual damages award, to cases w[h]ere a violation of a constitutional right has occurred."

Barrios v. Kody Marine, Inc., No. 99-1623, 2000 WL 775067, at *4 n. 4 (E.D. La. June 14, 2000) (Berrigan, J.) (quoting Louisiana ACORN, 211 F.3d at 301, 303 (internal quotation omitted)); see also Cush-Crawford v. Adchem, 271 F.3d 352, 359 (2d Cir. 2001) (punitive damages may be awarded in Title VII case without an award of nominal or compensatory damages); Alexander, 208 F.3d at 429 ("beyond a doubt, punitive damages can be awarded in a civil rights case where a jury finds a constitutional violation, even when the jury has not awarded compensatory or nominal damages") (citation omitted).

Furthermore, the jury's award is not conceptually inconsistent because the two types of available damages are legally distinct and serve different purposes. "[T]he basic principle of compensatory damages [is] that the injured party should be made whole" by being compensated fully for any losses he has sustained. Wilkerson v. Ingalls Shipbldg., Inc., 125 F.3d 904, 907 (5th Cir. 1997). Specifically, "the purpose of Title VII is to make injured claimants whole" by allowing them to collect compensatory damages. Fitzgerald v. Secretary, 121 F.3d 203, 207 (5th Cir. 1997).

On the other hand, "[p]unitive damages punish. The almost unanimous rule is that "[p]unitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct.'" Allen v. R H Oil Gas Co., 63 F.3d 1326, 1332 (5th Cir. 1995) (quoting City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-267 (1981); citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19 (1991) ("punitive damages are imposed for purposes of retribution and deterrence"); Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (Punitive damages "are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence."); Restatement (Second) of Torts § 908).

The jury in the instant case was not inconsistent in finding that Paw-Paw's had subjected Jimenez to a hostile work environment for which it should be punished and that Paw-Paw's and others like it should be deterred from similar, intentional, wrongful actions, even though Jimenez himself sustained no actual damages. See Louisiana ACORN, 211 F.3d at 302 ("the societal interest in deterring or punishing violators of constitutional rights supports an award of punitive damages even in the absence of actual injury").

Accordingly, I find that the applicable law permits Jimenez to recover punitive damages in this case brought under Title VII and Section 1981, either because there is a predicate award of nominal damages or because no predicate compensatory damages award is required.

4. The Punitive Damages Award Is Excessive

Paw-Paw's does not argue that the punitive damages award of $161,000 was constitutionally excessive, only that it is so disproportionate to the zero compensatory damages award as to shock the conscience and that it must have been influenced by bias, passion or prejudice. Paw-Paw's seeks either a new trial or a remittitur of the punitive damages to some unspecified amount that would bring it in line with the compensatory damages award, which now stands at $1.00.

Although the evidence was sufficient to permit the jury to award some amount of punitive damages and there is no indication in this case of any bias, passion or prejudice by the jury, the court finds that the amount awarded is grossly excessive. This ruling is governed by the Supreme Court's opinion in BMW of N. Am. Inc. v. Gore, 517 U.S. 559 (1996), concerning constitutionally excessive punitive damages and the Fifth Circuit's recent opinions concerning excessive punitive damages in employment discrimination cases. Rubinstein, 218 F.3d at 392;Deffenbaugh-Williams v. Wal-Mart, 156 F.3d 581, 587 (5th Cir. 1998),reh'g en banc granted, 169 F.3d 215 (5th Cir.), panel opin. reinstated in relevant part, 182 F.3d 333 (5th Cir. 1999); Patterson, 90 F.3d at 927.

The plaintiff in Rubinstein obtained a jury verdict of $2,500 in compensatory damages and $75,000 in punitive damages on his retaliation claim under Title VII. The court entered judgment on the verdict and added a 3.5% pay raise as equitable relief for the retaliatory denial of a raise. The Fifth Circuit found that plaintiff had proved his entitlement to punitive damages under Kolstad, but vacated the punitive damages award as excessive and remanded for a new trial on that issue.Rubinstein, 218 F.3d at 396.

The Rubinstein court noted that its appellant/defendant, like the defendants in Deffenbaugh-Williams and Patterson (and like Paw-Paw's in the instant case), did not argue that the punitive damages award was constitutionally excessive and that the appellants failed to develop in their arguments the numerous considerations necessary to decide the excessiveness question. Id. at 407. Nonetheless, the Fifth Circuit found "instructive" the Supreme Court's opinion in BMW, which considered whether a punitive damages award was constitutionally excessive.

The Fifth Circuit applied the three "guideposts" identified in BMW to the punitive damages awards in Rubinstein, Deffenbaugh-Williams andPatterson. Those guideposts are "(1) the degree of reprehensibility of the defendant's conduct; (2) the disparity between the harm suffered and the damage award; and (3) the difference between the damages awarded in this case and comparable cases." Patterson, 90 F.3d at 942 (citing BMW, 517 U.S. at 575). Accordingly, this court considers the same guideposts in assessing whether Jimenez's punitive damages award is excessive.

The first factor to consider and "`[p]erhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct.'" Deffenbaugh-Williams, 156 F.3d at 597 (quoting BMW, 517 U.S. at 575) (emphasis by Fifth Circuit). "It goes without saying that any form of racial discrimination is "reprehensible'." Id. The jury in Deffenbaugh-Williams, found that plaintiff, Deffenbaugh, a white woman, was terminated from her employment because of her amorous relationship with a black man (whom she later married). Plaintiff testified that her direct supervisor told her, in front of their ultimate supervisor, Gipson, that she "would never move up in the company being associated with a black man," and that their ultimate supervisor remained silent upon hearing that comment. Id. at 584. Gipson denied at trial that he had been present at that meeting. He disciplined Deffenbaugh four months later for a reason she thought was pretextual, and he terminated her employment five months after the meeting for a reason that the jury found was pretextual.

When the Fifth Circuit weighed the evidence of plaintiff's single claim of discriminatory termination in the light most favorable to Deffenbaugh, it found a "close case" with only "limited evidence of ill will," which, although sufficient for the jury to infer malice underKolstad, did "not reveal a high degree of reprehensibility. For example, there was no verbal or physical abuse." Id. at 597 (emphasis in original).

In Rubinstein, plaintiff experienced one act of retaliation in which he was denied a 3.5% pay-raise. There was no termination, as there was inDeffenbaugh-Williams, yet the Rubinstein court found the retaliation highly reprehensible. "[T]he decision-maker responsible for setting Rubinstein's raise punished him for exercising his rights, in an act of certain ill-will towards Rubinstein. . . . [T]he act of the Dean in expressly acknowledging that he was undertaking what should be a performance-based employment decision on the basis of an employee's exercise of his federal rights is sufficient to demonstrate a high degree of reprehensibility. . . ." Rubinstein, 218 F.3d at 408; see also Patterson, 90 F.3d at 943 (defendant's "actions in falsifying documents to establish a paper trail of misconduct for [plaintiff] coupled with his racial animosity support a determination of malicious or reckless conduct justifying punitive damages").

In Jimenez's case, as in Rubinstein and Patterson, the court finds a high degree of reprehensibility in the repeated, extensive, ethnically hostile verbal abuse by Paw-Paw's managers that plaintiff experienced, as found by the jury. Unlike Deffenbaugh-Williams, in which there was a single incident of a racially motivated comment followed by termination of plaintiff's employment that the court did not find highly reprehensible, the jury in the instant case found extended discriminatory conduct. Paw-Paw's did not even attempt to prove at trial that it exercised reasonable care to prevent and correct promptly any racially harassing behavior toward plaintiff, but merely denied the occurrence of the slurs. The jury rejected those denials in light of the substantial evidence to the contrary presented by plaintiff.

The second BMW factor is whether the punitive damages award bears a reasonable relationship to the compensatory damages. The jury awarded no compensatory damages, and the court has awarded $1.00 in nominal damages. The Eighth Circuit has held in several civil rights cases decided before BMW (which was neither a nominal damages case nor a civil rights case) that there is no "requirement that the punitive damage award bear a reasonable relationship to the nominal damages. To apply the proportionality rule to a nominal damages award would invalidate most punitive damages awards because only very low punitive damages awards could be said to bear a reasonable relationship to the amount of a nominal damages award." Hicks, 902 F.2d at 653 n. 52 (citing Edwards v. Jewish Hosp., 855 F.2d 1345, 1352 (8th Cir. 1988); Goodwin v. Circuit Court, 729 F.2d 541, 542-43 (8th Cir. 1984)).

Although the Fifth Circuit has not expressly adopted this rule, the Fifth Circuit's analysis in Louisiana ACORN is instructive. The court held first that "[t]here is no established federal common law rule that precludes the award of punitive damages in the absence of an award of compensatory damages." Louisiana ACORN, 211 F.3d at 301. After reviewing its Section 1983 decisions, the Fifth Circuit held that "[t]he rule in our circuit is that in the absence of proof of actual injury, a plaintiff who has been deprived of his constitutional rights may only collect nominal damages. . . . Moreover, the societal interest in deterring or punishing violators of constitutional rights supports an award of punitive damages even in the absence of actual injury." Id. at 302. The court concluded that "punitive damages awards, absent an actual damages award, [should be limited] to cases w[h]ere a violation of a constitutional right has occurred." Id. at 303. A comparison of the ratio of punitive damages awards to awards of either zero compensatory damages or nominal damages would invalidate most punitive damages awards. This would render the ability to award punitive damages in the absence of compensatory damages in cases of constitutional violations a nullity. However, because I have located no Fifth Circuit decisions that directly address this issue, I will examine the second BMW factor.

The Rubinstein court found that an award of punitive damages 30 times the amount of compensatory damages was unreasonable. "While no bright line exists, this award is clearly outside even the gray areas of the demarcation between acceptable levels of damages and unacceptable levels." Rubinstein, 218 F.3d at 408. "Rubinstein, while no doubt, and understandably, frustrated and angry as his testimony indicates, did not lose his tenured position at the University, nor was he demoted or otherwise forced to suffer consequences to his status at the university. We find that the employment decision denying Rubinstein a small percentage raise, while illegally made, was not so exceptional as to justify a multiplier of thirty." Id.

The Fifth Circuit in Deffenbaugh-Williams found it significant, in examining the jury's $100,000 punitive damages award, which was 5.26 times the $19,000 award for compensatory damages, that "[u]nlike the situation in BMW, the injury here was not simply economic. Deffenbaugh's termination had wide-ranging adverse personal impact and consequences. . . . In short, the ratio, standing alone, would not compel a remittitur." Deffenbaugh-Williams, 156 F.3d at 598.

In Patterson, which had been tried to the judge without a jury, the Fifth Circuit vacated a $40,000 emotional damages award and remanded with instructions to enter nominal damages. The appeals court also vacated a $150,000 punitive damages award and remanded for a new assessment of punitive damages.

Even if we based the punitive award on the original back-pay and benefits award of $22,648 the ratio of punitives to compensatory damages would be approximately 6.5 to 1. The Supreme Court has recognized a punitive damage award of 4 times the amount of compensatory damages to be "close to the line" in terms of constitutional propriety.

Patterson, 90 F.3d at 943 (citing BMW, 517 U.S. at 575).

Jimenez's situation is similar to Rubinstein and Patterson. He experienced repeated verbal abuse that, while reprehensible by defendant and naturally upsetting to plaintiff, did not rise to the level of constructive discharge. The jury obviously found that plaintiff was unable to prove that he suffered any "wide-ranging adverse personal impact and consequences" as a result of defendant's conduct. A punitive damages award of $161,000 bears no reasonable relationship to plaintiff's actual damages, or to the nominal damages award, on these facts.

Finally, in comparing the award in this case to comparable cases, the Fifth Circuit noted in Patterson in 1996 that "the largest punitive damage award under § 1981 in this circuit, of which we are aware to date, is $50,000." Patterson, 90 F.3d at 943 (citing Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 762 (5th Cir. 1986), aff'd in part and remanded in part, 491 U.S. 701 (1989)). The Deffenbaugh-Williams court two years later analyzed awards in this circuit under Title VII and Section 1981. "[W]e note that, for Title VII claims against an entity of Wal-Mart's size, § 1981a(b)(3) imposes a maximum combined punitive and compensatory limit of $300,000. Obviously, the total $119,000 awarded is well below this maximum. With respect to § 1981 claims, $100,000 is on the high-end for cases of this type in our circuit."Deffenbaugh-Williams, 156 F.3d at 598. The court concluded that the punitive damages award of $100,000 was excessive and ordered a remittitur to $75,000.

In Rubinstein, having found that the $75,000 punitive damages award did not satisfy the second BMW factor, the Fifth Circuit concluded that it need not examine the third factor. Rubinstein, 218 F.3d at 408. It remitted the award to $25,000.

While we acknowledge that this remittitur leaves the award at a level ten times the compensatory damages, we note that the Supreme Court has indicated that a ratio of ten to one does not necessarily "jar one's constitutional sensibilities." Moreover, when considered as an absolute amount as opposed to a comparative ratio, we find that a $25,000 punitive damages award is reasonable given the illegal conduct by the Dean, admitted to on the record and found by the jury to constitute malicious or reckless indifference to Rubinstein's federal rights.

Id. at 409 (quoting TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 462 (1993)).

In the instant case, the BMW factors, as applied by the Fifth Circuit in Rubinstein, Deffenbaugh-Williams and Patterson, lead me to conclude that the award of $161,000 in punitive damages is excessive and a remittitur should be granted. Although Paw-Paw's conduct, as found by the jury, was highly reprehensible, the amount of the award bears no reasonable relationship to plaintiff's complete lack of actual damages and the award is $86,000 more than the highest punitive damages award approved by the Fifth Circuit in Deffenbaugh-Williams. Cf. Sellers v. Gex, No. 93-2724, 1994 WL 462988, at *4 (E.D. La. Aug. 25, 1994) (Schwartz, J.) (pre-BMW, jury's punitive damages award of $200,000 in employment discrimination action under Sections 1981 and 1983 was not excessive; plaintiff received $77,500 in compensatory damages), aff'd without opin., 68 F.3d 469 (5th Cir. 1995).

"Having determined that an award is excessive, this court may either order a new trial on damages or may give the plaintiff the option of avoiding a new trial by agreeing to a remittitur of the excessive portion of the award." Hernandez v. M/V Rajaan, 841 F.2d 582, 587 (5th Cir. 1988) (citing Osburn v. Anchor Labs., Inc., 825 F.2d 908, 919 (5th Cir. 1987);Wells v. Dallas Indep. Sch. Dist., 793 F.2d 679, 684 (5th Cir. 1986));accord Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 182 (5th Cir. 1995). This rule applies in cases of excessive punitive damages, and a new trial may be ordered solely on the punitive damages issue if the plaintiff declines to accept the remittitur. Rubinstein, 218 F.3d at 409;Deffenbaugh-Williams, 156 F.3d at 598; Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 306-07 (4th Cir. 1998); Continental Trend Resources. Inc. v. Oxy USA Inc., 101 F.3d 634, 643 (10th Cir. 1996); Lee v. Edwards, 101 F.3d 805, 813 (2d Cir. 1996); Morgan v. Woessner, 997 F.2d 1244, 1258-59 (9th Cir. 1993).

"To determine the size of the remittitur, we follow the `maximum recovery rule,' reducing the damages to the maximum amount a reasonable jury could have awarded. of course, our reassessment of damages cannot be supported entirely by rational analysis, but involves an inherently subjective component." Giles v. General Elec. Co., 245 F.3d 474, 488-89 (5th Cir. 2001) (quotation and citations omitted); accord Deffenbaugh-Williams, 156 F.3d at 597.

Application of the foregoing complex standards in determining an appropriate punitive damages remittitur is difficult. The conduct found by the jury in the instant case, an extensive pattern of repeated, long-term verbal abuse, was highly reprehensible, which is the most important factor to consider. In this regard, the conduct found by the jury in the instant case was worse than that in Deffenbaugh-Williams, in which the Fifth Circuit found no "high degree of reprehensibility," including "no verbal . . . abuse," 156 F.3d at 597, and remitted the $100,000 award to $75,000. Thus, a punitive damages award slightly in excess of the remitted award in Deffenbaugh-Williams appears appropriate. Given the facts of this case, the jury's findings on liability and the deterrence and punishment goals of a punitive damages award, I find that the award should be reduced by approximately one-half to $80,000, which is the maximum amount that a reasonable jury could have awarded. While the ratio of even this remitted punitive award to compensatory damages (80,000 to 1 if the nominal damages amount is employed as the comparator) remains far in excess of any other ratio that has been affirmed in the reported case law, I see no mathematical method to compute an acceptable ratio that would vindicate the deterrence and punishment purposes of punitive damage awards in a nominal damages civil rights case in which the jury's punitive damages liability finding is supported by the evidence. If Jimenez declines to accept this remittitur, then a new trial will be granted on punitive damages only.

E. Plaintiff's Motion for Attorney's Fees and Costs

1. Plaintiff Is Entitled to Reasonable Attorney's Fees and Costs

Jimenez brought this action under Title VII and Section 1981. Title VII provides that "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee (including expert fees) as part of the costs." 42 U.S.C. § 2000e-5 (k). Similarly, 42 U.S.C. § 1988 provides that "[i]n any action to enforce a provision of sections 1981 [or] 1981a . . ., the court, in its discretion, may allow the prevailing party, . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. Attorney's fees should be awarded to a prevailing plaintiff in all but special circumstances. White v. South Park Indep. Sch. Dist., 693 F.2d 1163, 1169 (5th Cir. 1982).

"Under [the Supreme Court's] generous formulation of the term, plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."Farrar, 506 U.S. at 109 (quotations omitted).

[T]o qualify as a prevailing party, a civil rights plaintiff must obtain . . . an enforceable judgment against the defendant from whom fees are sought . . . Whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement. . . . In short, a plaintiff "prevails" when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.

Id. at 111-12. The Supreme Court in Farrar squarely held that a civil rights plaintiff who receives a judgment vindicating his constitutional rights, thus obtaining at least some relief on the merits, is a prevailing party even if he receives only nominal damages. Id. at 112.

"A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant's behavior for the plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise would not pay." Id. at 113. Jimenez is clearly the prevailing party in this litigation, having received a verdict and judgment in his favor on one of his three claims, including nominal damages (following the court's additur ruling) and significant punitive damages.

Having determined that Jimenez is the prevailing party, the court next must consider whether he is entitled to any attorney's fees under the reasonableness inquiry. "In some circumstances, even a plaintiff who formally `prevails' under § 1988 should receive no attorney's fees at all. A plaintiff who seeks compensatory damages but receives no more than nominal damages is often such a prevailing party." Id. at 115 (emphasis added).

In the instant case, Jimenez sought and received significantly more than nominal damages in the form of punitive damages. He is therefore entitled to an award of reasonable attorney's fees under Title VII and Section 1988. See Hopwood v. State, 236 F.3d 256, 278 (5th Cir. 2000),cert. denied, 121 S.Ct. 2550 (2001) (affirming award of attorney's fees to plaintiffs who achieved their "principal goal" of striking down racial preferences in higher education admissions, although they received no injunctive or monetary relief) (citing Farrar, 506 U.S. at 112); Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996) (plaintiffs achieved more than mere "technical victory" when they obtained nominal damages and most of the injunctive relief they had sought); Pembroke v. Wood County, 981 F.2d 225, 230-31 n. 27 (5th Cir. 1993) (prisoners who waived monetary damages but who proved constitutional violations that were incorporated into jury charges were entitled to reasonable attorney's fees because their lawsuit caused defendants to remedy unconstitutional conditions and they were prevailing parties despite verdict in favor of defendants); Doughtie v. City of Corinth, No. 3:93CV163-D-A, 1997 WL 786765, at *2 (N.D. Miss. Dec. 1, 1997) (plaintiff achieved more than nominal victory when he prevailed on one of several claims, received nominal damages and effected change in defendant's behavior by filing suit, although change did not result directly from a court order); see also Johnson v. Eaton, 80 F.3d 148, 152 (5th Cir. 1996) (affirming award of attorney's fees to plaintiff in Fair Debt Collection Practices Act case; jury found that plaintiff suffered no actual damage from defendant's statutory violations; jury's award of "`additional' or punitive damages [under the statute], designed to punish [defendant] for his wrongful acts," qualified plaintiff as "successful" under attorney's fees provision of statute).

2. The Lodestar Method

Determination of the reasonableness of plaintiff's request for attorney's fees is a two-step process that begins with determination of the "lodestar" amount.

A lodestar is calculated by multiplying the number of hours reasonably expended by an appropriate hourly rate in the community for such work. After making this calculation, the district court may decrease or enhance the lodestar based on the relative weights of the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The lodestar may not be adjusted due to a Johnson factor, however, if the creation of the lodestar award already took that factor into account. Such reconsideration is impermissible double-counting.

Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999) (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992); Shipes v. Trinity Indus., 987 F.2d 311, 319-20 (5th Cir. 1993)).

The Johnson factors are:

(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount involved and results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) the award in similar cases.

Johnson, 488 F.2d at 717-19.

"[O]f the Johnson factors, the court should give special heed to the time and labor involved, the customary fee, the amount involved and the result obtained, and the experience, reputation and ability of counsel."Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998) (citation omitted). Three of the Johnson factors, complexity of the issues, results obtained and preclusion of other employment, are fully reflected and subsumed in the lodestar amount. Heidtman, 171 F.3d at 1043 (citing Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986); Shipes, 987 F.2d at 319-22 n. 9). More recently than the Johnson case, the "Supreme Court has barred any use of the sixth factor," i.e., whether the fee is fixed or contingent. Walker v. United States Dep't of Housing Urban Dev., 99 F.3d 761, 772 (5th Cir. 1996) (citing City of Burlington, 505 U.S. at 567; Shipes, 987 F.2d at 323).

"The lodestar . . . is presumptively reasonable and should be modified only in exceptional cases." Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993) (citing City of Burlington, 505 U.S. at 562); accord Heidtman, 171 F.3d at 1043. Although the party seeking attorney's fees bears the initial burden of submitting adequate documentation of the hours reasonably expended and of the attorney's qualifications and skill, the party seeking reduction of the lodestar bears the burden of showing that a reduction is warranted. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th Cir. 1997); Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 329 (5th Cir. 1995) (hereinafter "LPL").

Jimenez seeks $98,480 in attorney's fees based on an initial hourly rate of $187.50, with a requested upward adjustment to $200 per hour, for 492.4 hours spent in prosecution of the case from August 8, 2001, the date when he hired his current counsel, J. Christian Lewis, through post-trial work. He also seeks $3,012 in fees for 50.2 hours of work performed by two paralegals at an hourly rate of $60. He does not seek an award of attorney's fees for the work of the two attorneys who represented him from the date of filing this lawsuit in June 2000 until they withdrew on April 2, 2001.

3. The Hourly Rates Charged by Plaintiff's Counsel

First, I must determine whether the hourly rates of $187.50, adjusted upward to $200, requested for the work of plaintiff's counsel and of $60 for his paralegals were reasonable. Plaintiff's attorney, J. Christian Lewis, states in his affidavit that he graduated from Tulane Law School in 1992 and has practiced law since 1994, a total of only eight years. He avers that he has focused on employment law and civil rights law for individuals since 1999, only three years, with employment matters representing approximately 80% of his current practice. He does not state what rate he customarily charges. His office is located in Lafayette. He states that he was recently awarded $175 per hour by an administrative law judge in a worker's compensation case. Finally, he notes that his contingency contract with Jimenez provides for the greater of 1/3 of the amount recovered or $175 per hour. Plaintiff's Exh. A.

Plaintiff bases his request for a base hourly rate of $187.50 on the affidavits of Audrey Browne and William McGoey, attorneys who practice employment law in New Orleans. Browne states that she has practiced employment and discrimination matters exclusively since she graduated from Tulane Law School in 1992 and that "approximately $200.00" is a fair and appropriate hourly rate for employment matters in this market. Plaintiff's Exh. D. McGoey states that he has engaged in a federal litigation practice with a focus on employment and discrimination matters since 1985. He opines that $175 is a fair and appropriate hourly rate for an attorney with Lewis's knowledge and experience and that attorneys with 15 or more years of experience often charge $200 or more per hour. Plaintiff's Exh. E. Plaintiff averages the rates recommended by Browne and McGoey to come up with a requested base rate of $187.50 per hour, and requests an upward adjustment to $200 based on the posture and complexity of the case when Lewis was hired.

An attorney's requested hourly rate is prima facie reasonable when he requests that the lodestar be computed at his or her customary billing rate, the rate is within the range of prevailing market rates and the rate is not contested. LPL, 50 F.3d at 328. Here, Paw-Paw's challenges the requested rate as unreasonable because Lewis has practiced employment law only since 1999; the highest award he has received was $175 per hour from an ALJ; the amount of time Lewis spent on the case reflects not complexity but his inexperience; and McGoey states that attorneys with 15 years of experience receive $200 per hour.

It is well established that fees for paralegal time are recoverable.Missouri v. Jenkins, 491 U.S. 274, 288 (1989); Volk v. Gonzalez, 262 F.3d 528, 535 (5th Cir. 2001); Walker, 99 F.3d at 773; Associated Builders Contractors of La., Inc. v. Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir. 1990). Defendant does not contest the requested rate of $60 per hour for paralegal Wayne M. Lemoine, whose affidavit states that he received a paralegal certificate in May 1996 and he has worked as a paralegal with plaintiff's law firm for four and one-half years. Lemoine states that $60 per hour is a reasonable and customary rate for paralegal services in this state and as billed to clients under a fee contract. Plaintiff's Exh. B. However, Paw-Paw's asserts that Kathy M. Darby, whose affidavit states that she received a paralegal certificate in 1997 and has worked for plaintiff's law firm as a legal secretary for one and one-half years, Plaintiff's Exh. C, should receive a lower rate than Lemoine. I find that $60 per hour is a reasonable rate for paralegal services rendered by both Lemoine and Darby.

However, I find that the $187.50 to $200 hourly rate sought by Lewis for his work is not reasonable. While I have seriously considered the opinion expressed in the affidavit of McGoey, a frequent practitioner of employment discrimination law, whose skill, reputation and expertise in the field of employment litigation are well-known to and respected by this court, I cannot accept that a lawyer of Lewis's limited experience, eight years in actual practice with only three years of emphasis in the relevant practice area, should be awarded $175 per hour, as McGoey opines. For example, McGoey himself, an employment litigation specialist with far more experience than Lewis, received a fee award from Judge McNamara of this court in a Title VII case about a year ago of only $150 per hour. Dufresne v. J.D. Fields Co., Inc., C.A. No. 99-3714-D, Record Doc. No. 83 (December 19, 2001).

In addition, my own experience in this court in reviewing and evaluating requests for awards of attorney's fees convinces me that the requested rate is not reasonable. I have become familiar with Lewis's experience and skill as he has prosecuted this case, and I am personally familiar with the range of attorney's customary billing rates in this legal community. I find that an hourly rate of $175 or above for his work in this case would be excessive and not customary in this community. Rather, I find that an hourly rate of $175 or above would be higher than the range of prevailing market rates for lawyers with comparable experience and expertise in litigation of this type.

In addition to the recent award of $150 per hour to McGoey mentioned above, my research indicates that the following attorney's fee awards have been made in both similar and more complicated cases in this court.

1. In a civil rights case last year, Judge Vance awarded $150 per hour to an attorney who had been admitted to the bar in 1977. Oyefodun v. City of New Orleans, No. 98-3283, 2001 WL 775574, at *9 (E.D. La. July 9, 2001).

2. Judge Livaudais awarded $185 per hour last year to a civil rights attorney with 25 years of experience. Lalla v. City of New Orleans, 161 F. Supp.2d 686, 699 (E.D. La. 2001).

3. In a qui tam case in 1999, Judge Duval awarded hourly rates of $250, $175 and $150 for partner-level attorneys with substantial experience. He awarded rates at the high end of each attorney's usual range because of the particular difficulty of the case and the lucrative and less risky business the lawyers were precluded from accepting. United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 46 F. Supp.2d 546, 569 (E.D. La. 1999), vacated on other grounds, 244 F.3d 486 (5th Cir. 2001).

4. In Yousuf v. UHS of De La Ronde, Inc., 110 F. Supp.2d 482, 490-91 (E.D. La. 1999), Judge Livaudais awarded $195 per hour to an attorney who had practiced civil rights litigation for 24 years.

5. In 1998, in an action challenging the constitutionality of a public school board's resolution, Judge Livaudais held that while "$175 is arguably within the realm of reasonable awards, an hourly rate of $150 is appropriate." Freiler v. Tangipahoa Parish Bd. of Educ., No. 94-3577, 1998 WL 2852, at *3 (E.D. La. Jan. 5, 1998), aff'd, 185 F.3d 337, 349 (5th Cir. 1999).

6. Judge Berrigan held in 1997 that $150 per hour was reasonable in an employment discrimination action, after finding that counsel had practiced employment discrimination law since 1988 and had become an authority in the field. Smith v. Berry Co., No. 96-1899, 1997 WL 736697, at *4 (E.D. La. Nov. 21, 1997).

7. In a Title VII action in 1996, Judge Berrigan awarded $175 per hour to counsel who had been practicing employment discrimination law since 1988. Douglas v. DynMcDermott Petroleum Operations Co., No. 95-1967, Record Doc. No. 203 (unreported decision; cited in Smith, 1997 WL 736697, at *4).

8. In Police Ass'n of New Orleans v. City of New Orleans, 951 F. Supp. 622, 628 (E.D. La. 1997), then Chief Judge Sear held that $150 per hour was reasonable in a Section 1983 action, based upon plaintiffs' counsel's 22 years of experience as a civil rights attorney and the Chief Judge's own knowledge of attorneys' fees in this district.

9. In Blanchard v. Forrest, No. 93-3780, 1996 WL 125955, at *2-3 (E. D. La. March 19, 1996), an "exceedingly complex" class action brought under Section 1983 against the State of Louisiana, which required "specialized knowledge of the controlling [Medicaid] regulations" and resulted in a consent decree, Judge Porteous found that hourly rates of $175 for a senior attorney with 25 years of varied litigation experience, $125 for a public interest litigator with slightly less experience, $80 for a second-year associate and $35 for student law clerks were customary and reasonable in this district.

10. Finally, in an age discrimination case tried in 1995, Magistrate Judge Africk awarded hourly rates of $175 for an attorney who had practiced law for 23 years, $150 for an attorney who had practiced for 15 years and $125 for an attorney who had practiced for 9 years with 6 years of specialization in disability rights. Grantham v. Moffett, No. 93-4007, 1996 WL 3750, at *4 (E.D. La. Jan. 3, 1996) (Africk, M.J.), aff'd, 101 F.3d 699 (5th Cir. 1996).

As a general matter, the foregoing decisions support a reasonable hourly rate of $175 for lawyers with far more experience and expertise in the employment law field than plaintiff's counsel in the instant case. Considering all of the foregoing factors, I find that a reasonable hourly rate for Lewis in this case is $150. Whether there should be any upward adjustment of the lodestar amount is considered below.

4. The Hours Charged by Plaintiff's Counsel

Next, I must determine the reasonable number of hours that plaintiff's counsel expended on the litigation. Jimenez seeks reimbursement for 492.4 hours expended by Lewis, 40.7 hours expended by paralegal Lemoine and 9.5 hours expended by paralegal Darby.

The burden of proving the reasonableness of the hours expended is on the fee applicant. Mota, 261 F.3d at 528. As a general proposition, all time that is excessive, duplicative or inadequately documented should be excluded from any award of attorney's fees. Watkins, 7 F.3d at 457. Attorneys must exercise "billing judgment" by "writing off unproductive, excessive, or redundant hours" when seeking fee awards. Walker, 99 F.3d at 769. The fee seeker's attorneys "are charged with proving that they exercised billing judgment." Id. at 770. When billing judgment is lacking, the court must exclude from the lodestar calculation the hours that were not reasonably expended. Hensley, 461 U.S. at 434.

Defendant specifically challenges the following types of entries.

a. Attorney Familiarization Time

Paw-Paw's objects to paying for the time spent by Lewis to familiarize himself with the history and posture of this case. This objection is not well founded. While plaintiff hired and fired several attorneys to handle this matter, the fee application does not reflect imprudent duplication of effort. Lewis began working diligently on the case as soon as he enrolled as counsel, when defendant's motion for summary judgment was pending and a jury trial was set for a date only three months away. He was obligated to familiarize himself with the history and posture of this case and prudent to do so. No request for duplicative compensation for the time spent by his predecessor plaintiff's counsel has been made. Accordingly, no deductions from Lewis's initial time entries reflecting attorney familiarization time will be made.

b. Non-Attorney Work

Defendant urges that the attorney's hourly rate should not be applied to clerical, administrative or paralegal work and that the paralegal's hourly rate should not be applied to clerical or administrative work. These objections have merit.

"Normally, clerical or secretarial costs are part of an attorney's office overhead and are reflected in the billing rate." Hagan v. MRS Assocs., Inc., No. 99-3749, 2001 WL 531119, at *9 (E.D. La. May 15, 2001) (Africk, M.J.) (citing Jane L. v. Bangerter, 61 F.3d 1505, 1517 (10th Cir. 1995); In re North, 59 F.3d 184, 195 (D.C. Cir. 1995)) (additional citations omitted). It is well established that "when an attorney performs a task that could be handled by clerical staff, the opponent should not be charged the attorney's hourly rate." Sassaman v. Heart City Toyota, 879 F. Supp. 901, 918 (N.D. Ind. 1994) (quotations omitted); see Jenkins, 491 U.S. at 288 n. 10 (clerical and other non-legal work should not be billed at attorney's rate); Harris v. L L Wings, Inc., 132 F.3d 978, 985 (4th Cir. 1997) (secretarial tasks); Abrams v. Baylor College, 805 F.2d 528, 535-36 (5th Cir. 1986) (clerical work); Hagan, 2001 WL 531119, at *9 (faxing); Barrilleaux v. Thayer Lodging Group, Inc., No., 97-3252, 1999 WL 397958, at *2 (E.D. La. June 11, 1999) (Livaudais, J.) (clerical and administrative tasks); Inks v. Healtheare Distribs, of Ind., Inc., 901 F. Supp. 1403, 1416 (N.D. Ind. 1995) (delivery of documents); A.N. v. Handy, No. 86 C 9486, 1995 WL 571828, at *2 (N.D. Ill. Sept. 22, 1995) (mailing papers and filing pleadings).

I find that some of the tasks which defendant disputes are not clerical. Preparation of service of process materials, deposition notices, deposition summaries and subpoenas, although sometimes done by paralegals under attorney supervision, is legal, not clerical, work. Defendant also objects to Lewis's entries for "typing." However, these entries indicate that Lewis was in fact composing and revising his opening statement, witness questions, summaries of testimony and closing argument before and during the trial, presumably on a portable computer. Although the use of the word "typing" may be ill advised because of its clerical connotations, composing and organizing trial presentation materials constitute legal work. No reductions will be made for these tasks.

However, some of Lewis's time entries reflect clerical or administrative work. Examples of clerical work include copying, faxing, loading files, labeling exhibits, mailing, filing pleadings, calling court reporters and process servers, serving a subpoena, delivering documents and pulling files. Administrative matters include Lewis's meetings with or memoranda to his partner, Glenn Armentor (who withdrew as counsel of record in this case), concerning case status, case prospects and expenses; memoranda to or meetings with paralegal/secretary Darby about billing, mileage calculation and expenses; preparing check requests; telephone calls to and inspections of hotels; meeting with Lemoine about time recordation; and research about local admission to Alabama and calls to attorneys in Alabama, Missouri and New Orleans apparently seeking co-counsel.

Lewis's time records indicate all of the tasks performed and a grand total of hours for each date. While this is permissible documentation for a busy lawyer and the Fifth Circuit does not require itemization of time for each task, it makes this court's task in assessing reasonable hours somewhat more difficult. Rather than itemize each date on which clerical and administrative tasks occurred and attempt to calculate how much time each task took, the court will reduce Lewis's overall time by 5% to reflect these tasks.

For the same reasons, paralegal time spent on clerical and administrative tasks cannot be charged to Paw-Paw's. Therefore, Lemoine's overall time of 40.7 hours will be reduced by 5% to reflect tasks such as planning for travel, packing and loading files for travel and checking into the hotel, and Darby's overall time of 9.5 hours will be reduced by 5% for making copies.

c. Travel Time

Lewis practices in Lafayette, Louisiana, approximately 135 miles from New Orleans. Plaintiff requests reimbursement at the attorney's full hourly rate for Lewis's travel time to New Orleans for hearings and trial, as well as to other locations in Louisiana and Alabama for depositions. He also requests the paralegal's full hourly rate for Lemoine's travel time to New Orleans to attend the trial.

Attorney travel time should be compensated at a lower rate than legal work. Courts in this circuit typically compensate travel time at 50% of the attorney's rate in the absence of documentation that any legal work was accomplished during travel time. Watkins, 7 F.3d at 459; Hopwood v. State, 999 F. Supp. 872, 914 (W.D. Tex. 1998), aff'd in relevant part rev'd in part on other grounds, 236 F.3d 256, 281 n. 107 (5th Cir. 2000), cert. denied, 121 S.Ct. 2550 (2001); Jackson v. Capital Bank Trust Co., No. 90-4734, 1994 WL 118322, at *26 (E.D. La. Mar. 30, 1994) (Heebe, J.); Smith v. Walthall Co., 157 F.R.D. 388, 393 (S.D. Miss. 1994) (Wingate, J.). No such documentation exists in this case. Accordingly, the portions of Lewis's time entries that reflect travel time will be reduced by 50% for the following dates.

DATE DESTINATION MILES ROUND HOURS FROM TRIP DEDUCTED LAF. HOURS

09/24/01 Hammond 101 4.00 2.00 09/26/01 Mobile 256 9.00 4.50 09/27/01 Baton Rouge 57 2.40 1.20 10/19/01 New Orleans 135 5.00 2.50 10/24/01 New Orleans 135 5.00 2.50 11/01/01 New Orleans 135 5.00 2.50 11/12-16/01 New Orleans 135 5.00 2.50

TOTALS 35.4 17.7

Lemoine's travel time to New Orleans on November 12th and back to Lafayette on November 16th will be similarly reduced, for a reduction in his time of 2.5 hours.

d. Excessive and Unnecessary Hours

Defendant argues that plaintiffs counsel was overly contentious and inexperienced, which allegedly led to unnecessary, duplicative and excessive billing entries. Specifically, defendant challenges only Lewis's entries for clerical, administrative and paralegal tasks, which have already been discussed above.

Paw-Paw's takes issue with Lewis's assertion that he should recover all of his time because he "devoted [his] practice almost entirely to this case" once he enrolled. Paw-Paw's attributes this to Lewis's alleged inexperience and contentiousness rather than the time pressure he faced upon enrolling as plaintiff's counsel from the pending motion for summary judgment, the trial date in three months, the posture of discovery and the complexity of the case.

Lewis's experience has already been taken into account in determining his hourly rate. As for contentiousness, the court finds that counsel for both parties share the blame for excessive motion practice and lack of cooperation in this case. No additional reduction will be made based on this argument.

In light of defendant's objections and in accordance with the standards set forth in Hensley, this court has undertaken a review of the time records in conjunction with the written submissions at issue to exclude any "excessive, redundant, or otherwise unnecessary" hours. Hensley, 461 U.S. at 433-45.

Plaintiff's fee statements are generally well documented. However, some of the entries, such as "read memo from GA [Glenn Armentor], "`memo to GA re: client, "`read two cases, "`review documents, "`read statements, "`call [or letter] from/to/with witness," call to shellhorse," "draft affidavit," "pulled file from W.D. LA," "review file of discovery" and "spoke with client's friend," are too vague for the court to determine whether they represent a reasonable use of time. See Walker, 99 F.3d at 773 (rejecting fee request that contained "terse listings" such as "`library research,' "analyzing documents,' `reading background documents,' `phone interviews,' with no further explanation. . . . [N]o responsible client would accept these records as capable of supporting a bill."); LPL, 50 F.3d at 326 n. 11 (vague entries such as "revise memorandum," "review pleadings," "review documents" and "correspondence" inadequate to support fee request); Von Clark v. Butler, 916 F.2d 255, 259 n. 6 (5th Cir. 1990) (criticizing as "scanty and lacking in explanatory detail" entries such as "`telephone call,' or `trial preparation,' or `travel to Beaumont to attend deposition' without any identification whatsoever of the subject matter").

Further, there is no evidence that plaintiff's attorney exercised billing judgment by writing off unproductive, duplicative or excessive time. The court cannot determine the actual time spent on each task because of Lewis's listing of all tasks accomplished in a single day in a lump total. Accordingly, the court will deduct 5% from Lewis's requested hours for vagueness and failure to exercise billing judgment.

5. Calculation of the Lodestar

In summary, I find that the requested 492.4 hours for Lewis should be reduced by 17.7 hours of travel time, 5% for clerical work and 5% for vagueness and lack of billing judgment, so that the reasonable number of attorney hours is 425.46. The requested 40.7 hours for paralegal Lemoine is reduced by 2.5 hours for travel time and 5% for clerical work to 36.165 hours. Paralegal Darby's time of 9.5 hours is also reduced 5% for clerical work to 9.025 hours. Thus, the reasonable number of paralegal hours is 45.19 hours.

After making these reductions in hours, I find that the lodestar amount of reasonable hours multiplied by the reasonable rates set forth above is generally reasonable in this case with two reservations, specifically that plaintiff's counsel was faced with significant time limitations imposed by the court when he enrolled as counsel and the case was undesirable. Plaintiff has requested an upward adjustment in the customary hourly rate. The lodestar should be enhanced or reduced only in exceptional cases. Watkins, 7 F.3d at 457 (citing City of Burlington, 505 U.S. at 562). In making this determination, I have considered and applied the factors articulated in Johnson, as required by the Fifth Circuit.Riley, 99 F.3d at 760; LPL, 50 F.3d at 331. Those factors have been evaluated as follows.

(1) The time and labor required have already been considered in reaching the lodestar. (2) The questions involved in this case were neither novel nor difficult. (3) The skill required to perform the legal service properly is connected to the second factor and has already been taken into account in the attorney's hourly rate. (4) Although Lewis attests that he was precluded from taking other employment, the Fifth Circuit has held that, this factor is already "fully reflected and subsumed in the lodestar amount." Heidtman, 171 F.3d at 1043. (5) After the reductions discussed above, the fees charged were customary; this factor has already been taken into account. (6) The contingent fee contract cannot as a matter of law be used to affect the lodestar. (7) There were significant time limitations imposed by the circumstances, and this is a factor that weighs in favor of enhancement. When Lewis enrolled as counsel, plaintiff was unrepresented. Several motions filed by defendant were pending and required immediate response. The trial date was only about three months away. Because the case had been delayed in its prosecution, and trial had already been previously continued, the court insisted on maintaining the November 2001 trial date. Under these circumstances, Lewis's assertion in his affidavit that he devoted virtually his full time to the case during the weeks preceding trial is credible, and this factor has not adequately been taken into account in determining the hourly rate. (8) The amount involved was not extraordinary and the result obtained was only partially successful, which has already been taken into account. (9) The experience, reputation, and ability of counsel has already been considered in determining the lodestar. (10) The case was undesirable, and this is a second factor that weighs in favor of enhancement. Two attorneys had already withdrawn and plaintiff had trouble finding a new one. At the time Lewis enrolled, with only three months before trial, plaintiff was unrepresented. (11) Plaintiff's relationship with counsel is unknown. (12) Awards in similar cases have already been discussed.

Given that only two of the twelve factors weigh in favor of enhancement, I find that a small upward adjustment should be made to the lodestar, as set out above. An upward adjustment. to the hourly rate, from $150 to $160, appropriately reflects an adequate adjustment that accounts for these factors. The reasonable hours multiplied by the attorney's reasonable hourly rate (425.46 x $160), upwardly adjusted by $10 per hour, yields an award of $68,073.60. The reasonable hours multiplied by the paralegal's reasonable hourly rate (45.19 x $60) yields an award of $2,711.40. As adjusted, the total amount of the award is $70,785.

6. Costs

Plaintiff seeks $6,070.12 in costs. Record Doc. Nos. 162, 169. Lewis states in his affidavit that the out-of-pocket expenses listed on the attached ledger of expenses were incurred in the prosecution of plaintiff's claims and are typically paid by the client at the time of disbursement. Lewis affidavit, Plaintiff's Exh. A; affidavit Exh. 2. Defendant disputes some of the requested costs.

"[C]osts other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d); accord Corpus Christi Oil Gas Co. v. Zapata Gulf Marine Corp., 71 F.3d 198, 205 n. 5 (5th Cir. 1995). A party who obtains a favorable judgment on some of its claims may be regarded as a prevailing party, even if it has not sustained all of its claims. Id. Taxation of costs under Rule 54(d) is within the district court's discretion. Breaux v. City of Garland, 205 F.3d 150, 164 (5th Cir.) (citation omitted),cert. denied, 531 U.S. 816 (2000).

The Fifth Circuit recently clarified the statutory sources of and limitations on cost awards in Title VII cases.

Under 28 U.S.C. § 1920, a court may tax the following costs: fees of the clerk and marshal; fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; fees and disbursements for printing and witnesses; fees for exemplification and copies of papers necessarily obtained for use in the case; docket fees; compensation of court-appointed experts, interpreters, and special interpretation services. The Supreme Court has indicated that federal courts may only award those costs articulated in section 1920 absent explicit statutory or contractual authorization to the contrary.

In Title VII cases, a district court has an additional source of authority for applying attorney's fees and costs, 42 U.S.C. § 2000e-5 (k). This provision empowers the court to "allow the prevailing party . . . a reasonable attorney's fee as part of the costs." This Court has interpreted the "attorney's fee" allowed by Section 2000e-5(k) to include reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services, such as postage, photocopying, paralegal services, long distance telephone charges, and travel costs.

Mota, 261 F.3d at 529 (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 444-45 (1987)) (quotation and additional citations omitted).

When cost-seekers neglect to supply any verification that the costs claimed were necessarily incurred in the case" and instead state only that the costs were expended "in the preparation and litigation of this case," the district court does not abuse its discretion by denying all costs except filing fees. Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 9 (1st Cir. 1993); accord Home Builders Ass'n v. City of Madison, 191 F.R.D. 515, 517, 518, 519 (N.D. Miss. 1999) (Wingate, J.) (citing Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991);Studiengesellschaft Kohle v. Eastman Kodak, 713 F.2d 128, 133 (5th Cir. 1983)). Before the court can tax costs, it must find that the costs were necessarily incurred in the litigation and this finding must be based on "some proof of the necessity." Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994) (citing Fogleman, 920 F.2d at 286; Studiengesellschaft Kohle, 713 F.2d at 133). "The Court does have discretion to allow unverified costs where it is clear from the nature of the cost that it was necessarily incurred." Johnson v. State, No. 98-266T, 2000 WL 303305, at *13 (D.R.I. Mar. 22, 2000) (quotation omitted) (citingPhetosomphone, 984 F.2d at 9).

In this case, plaintiff seeks reimbursement of the costs of serving subpoenas, express delivery charges, witness fees, court reporter fees, one video and one telephone deposition, deposition transcripts, long distance telephone calls, calls to information, photocopies, long distance faxes, postage, envelopes and travel expenses (including parking, gasoline, mileage, lodging and food) for his attorney's attendance at trial, depositions and court hearings, and for paralegal Lemoine's expenses to attend the trial. Plaintiff's Exh. A, affidavit Exh. 2. Plaintiff's documentation of all of these expenses and his "proof" that they were "necessarily incurred" is minimal at best. For unexplained reasons, plaintiffs attorney rounded off all long distance telephone calls and long distance faxes to $2.00 per call, regardless of actual length or cost. Because of these inadequacies, the court exercises its discretion to exclude all expenses not listed in Section 1920.

Postage is not recoverable as a cost because it is not listed in Section 1920. Johnson, No. 98-266T, 2000 WL 303305, at *14; Yasui v. Maui Elec. Co., 78 F. Supp. 2d 1124, 1126 (D. Haw. 1999); Embotelladora Agral Regiomontana. S.A. de C.V. v. Sharp Capital, Inc., 952 F. Supp. 415, 417 (N.D. Tex. 1997) (Boyle, M.J.) (citations omitted). "Telecopy expenses, express delivery charges, and telephone expenses, like postal expenses, are not listed in the statute and represent `overhead' costs, not litigation costs." Id. (citations omitted); see also Yasui, 78 F. Supp. 2d at 1129, 1130 (facsimile and long distance charges not taxable as costs); cf. Migis, 135 F.3d at 1048 (in Title VII action, trial court did not abuse its discretion by denying costs of couriers, postage and copying). Accordingly, the court will deduct the costs of postage ($57.91), faxes ($230.00), express delivery ($156.60) and telephone calls ($314.25) listed on plaintiff's Ledger of Expenses as Item Nos. 3-5, 29-30, 36, 38, 40 and 41, plus $10 for long distance calls and faxes listed in plaintiff's supplemental memorandum. These items total $768.76.

Furthermore, "the travel expenses of attorneys are not recoverable under § 1920." Embotelladora, 952 F. Supp. at 418 (citing Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993); Roche v. City of Normandy, 566 F. Supp. 37, 42 (E.D. Motion. 1983)); accord Hodge v. Seiler, 558 F.2d 284, 287 (5th Cir. 1977); Odom v. Frank, 782 F. Supp. 50, 52 (N.D. Tex. 1991). The same rule applies to a paralegal's travel expenses. Therefore, Jimenez will not be permitted to recover Ledger of Expense Item Nos. 6-8, 27-28, 33, 35, and 37, totaling $2,852.84 in travel costs.

Plaintiff requests the cost of 77 envelopes in Item No. 42. Office supply purchases are considered overhead and are not taxable as costs.Mary M. v. North Lawrence Community Sch. Corp., 951 F. Supp. 820, 829 (S.D. Ind.), rev'd on other grounds, 131 F.2d 1220 (7th Cir. 1997);Bridges v. Eastman Kodak Co., No. 91 CIV. 7985 (RLC), 1996 WL 47304, at *15 (S.D.N.Y. Feb. 6, 1996), aff'd, 102 F.3d 56 (2d Cir. 1996); In re Media Vision Tech. Secs. Litig., 913 F. Supp. 1362, 1371 (N.D. Cal. 1996); Hertz Corp. v. Caulfield, 796 F. Supp. 225, 230 (E.D. La. 1992) (Mentz, J.). This cost request of $11.55 is disallowed.

Defendant contests the cost of serving a trial subpoena on Dr. Burl Forgey, contending that Dr. Forgey did not attend the trial at plaintiff's request. However, Dr. Forgey himself requested that he be excused from the subpoena because of a previously planned trip out of town, and the parties, after an initial dispute, were eventually able to agree that his testimony would be presented by deposition. Record Doc. Nos. 129, 143. This cost is allowed.

Finally, the court quashed plaintiff's improper trial subpoena to representatives of the Equal Employment Opportunity Commission, Record Doc. No. 148, and will therefore not allow the $41.00 service cost of this subpoena (Item No. 35 on plaintiff's Ledger of Expenses).

In summary, the court deducts the following costs described above: $768.76, $2,852.84, $11.55 and $41.00, for a total deduction of $3,674.15. After these deductions ($6,070.12 minus $3,674.15), plaintiff may recover the remaining, appropriate and well-supported costs of $2,395.97.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that plaintiff's Motion for Post-Judgment Relief is GRANTED IN PART to award nominal damages of $1.00. The remainder of the motion is DENIED.

IT IS FURTHER ORDERED that defendant's Motion for Judgment as a Matter of Law; in the Alternative, Motion for New Trial; in the Further Alternative, Motion for Remittitur is GRANTED IN PART to order a remittitur in the punitive damages award to $80,000 or, if plaintiff refuses to accept a remittitur, to grant a new trial on punitive damages only. The remainder of the motion is DENIED. Plaintiff must advise the court and opposing counsel in writing within ten days of entry of this order whether he will accept the remittitur.

IT IS FURTHER ORDERED that plaintiff's Motion for Attorney's Fees and Costs is GRANTED IN PART in that plaintiff is awarded $70,785 in attorney's fees and $2,395.97 in costs. To the extent that more extensive awards are sought in this motion, it is DENIED.