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LEXSEE 2002 US DIST LEXIS 9358 MAGDA BRENLLA, Plaintiff, - against - LASORSA BUICK PONTIAC CHEVROLET, INC., JOHN LASORSA, Defendants. 00 Civ. 5207 (JCF) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2002 U.S. Dist. LEXIS 9358; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 May 28, 2002, Decided May 28, 2002, Filed DISPOSITION: [*1] Defendants' motion for judgment as matter of law or for new trial denied. Defendants' motion to set aside or reduce award of front pay and plaintiff's motion to increase award both denied, and jury's finding on front pay adopted. Plaintiff's motion for prejudgment interest on back pay award and for attorneys' fees and costs granted, and motion for judgment as matter of law or for new trial on denied. U.S.C. § 2601 [*2] et seq., when defendant John LaSorsa fired her from LaSorsa Buick Pontiac Chevrolet, Inc. The case was tried before me on consent of the parties pursuant to 28 U.S.C. § 636(c), and the jury returned a verdict in favor of the plaintiff, finding the defendants liable under the FMLA and awarding her $ 150,000 in back pay and benefits, $ 70,000 in front pay, and $ 100,000 in liquidated damages, for a total of $ 320,000. The defendants now move pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure to set aside the jury verdict as against the weight of the evidence and for judgment as a matter of law, and to set aside the award of front pay or in the alternative to reduce the amount to $ 21,600. The plaintiff has also filed a post-trial motion. She seeks attorneys' fees, costs, and litigation expenses pursuant to 29 U.S.C. § 2617(a)(3), prejudgment interest on her back pay award, and three additional years of front pay totaling $ 210,000. The plaintiff further seeks judgment as a matter law finding that she was disabled under the ADA, the NYSHRL, and the NYCHRL or a new trial on that issue as well as a new trial to determine [*3] whether she was terminated in violation of these laws. Background In March 1997, Mr. LaSorsa hired Ms. Brenlla to be the comptroller at his car dealership, LaSorsa Buick Pontiac Chevrolet, Inc. (Tr. 23-25). n1 She was paid $ 1,100 a week and was given a company car as a fringe

COUNSEL: For MAGDA BRENLLA, plaintiff: Michael J. Volpe, Clifton, Budd & DeMaria, L.L.P., New York, NY. JUDGES: JAMES C. FRANCIS IV, UNITED STATES MAGISTRATE JUDGE. OPINION BY: JAMES C. FRANCIS IV OPINION: OPINION AND ORDER JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE In this action, the plaintiff alleges that the defendants violated the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq., the New York State Human Rights Law (the "NYSHRL"), N.Y. Exec. Law § 290 et seq., the New York City Human Rights Law (the "NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq., and the Family and Medical Leave Act (the "FMLA"), 29

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2002 U.S. Dist. LEXIS 9358, *3; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 benefit. (Tr. 25, 93). There were three other women who worked in the back office with Ms. Brenlla: the office manager, Dolores O'Gorman, and two clerical workers, Parvati Brijmahal, and Koowarie, who was only identified by her first name. (Tr. 141-42, 170-73). n1 "Tr." refers to the transcript from the trial held on February 11, 13, and 14, 2002. Ms. Brenlla countered that she never made any complaint to Mr. LaSorsa about employees not asking her for financial information and that it was prohibited for employees to disclose such information other than to Mr. LaSorsa. (Tr. 156-57). She also stated that Mr. LaSorsa told her that he was discharging her because he was combining the office manager and comptroller jobs. (Tr. 101, 152). During Ms. Brenlla's tenure at LaSorsa Buick she was never issued any written warnings regarding her work performance; in fact, her salary was increased by $ 75 per week in 1998 when she took on additional job responsibilities. (Tr. 26-28; Exh. 1). Since Ms. Brenlla's termination, Ms. O'Gorman has performed the responsibilities of comptroller and office manager except for three tasks -- taking cash, posting the receipt books, [*6] and reconciling parts and service -which she used to do as office manager but are now the responsibility of two of the administrative assistants. (Tr. 203-04). Ms. O'Gorman testified that she does not perform these tasks because it would be inappropriate for the same employee both to receive money and to record how much was received. (Tr. 203). She further stated that in April 1999, she asked Mr. LaSorsa for additional help to do clerical work. In response, Joan Ayuso was hired later that month. (Tr. 206-07). Following her termination, Ms. Brenlla secured employment at B & L Toyota as an office manager where she was paid $ 800 a week. (Tr. 143-44). She stayed there for three months until she voluntarily left for another office manager position at Westchester Toyota. (Tr. 105, 143-45). At Westchester Toyota, Ms. Brenlla was paid $ 800 a week but was not entitled to health benefits because she did not work there long enough. (Tr. 145). After two months, she was fired because of unsatisfactory performance. (Tr. 145). In February 2000, she found another job at Riverdale Chrysler as a bookkeeper for $ 600 a week. (Tr. 146). However in September 2001, she was laid off, presumably because [*7] of the downturn in the economy. (Tr. 105-06). She continued to look for employment, but as of the trial date she had not been successful. (Tr. 148). On February 14, 2002, the jury returned a verdict in favor of the plaintiff only with regard to the FMLA claims. It awarded her $ 150,000 in back pay and benefits, $ 70,000 in front pay, and $ 100,000 in liquidated damages.

In October 1998, Ms. Brenlla underwent a quadruple bypass operation. (Tr. 29). Subsequent to her discharge from the hospital, she had to be readmitted after suffering congestive heart failure with atrial fibrillation. (Tr. 65-66). Ms. Brenlla's daughter informed Mr. LaSorsa that the plaintiff would be out of work for some time. (Tr. 30). Three months after she had initially taken medical [*4] leave, and after she was given medical clearance by her doctor, Ms. Brenlla indicated to Mr. LaSorsa that she was ready to come back to work on a part-time basis. (Tr. 32). During her absence, Ms. O'Gorman, the office manager, assumed most of Ms. Brenlla's responsibilities. (Tr. 142). Starting the week of January 18, 1999, Ms. Brenlla came to work for a few hours a day, but was not paid for her services. (Tr. 34). On January 22, she notified Mr. LaSorsa that she wanted to return to full-time employment. (Tr. 34-35). The following Monday, January 25, when Ms. Brenlla was to resume her position, Mr. LaSorsa fired her. (Tr. 35). Mr. LaSorsa claimed that it was during a meeting he had with Ms. Brenlla on January 25 that he decided to terminate her and to consolidate the positions of office manager and comptroller. (Tr. 37, 44). According to Mr. LaSorsa, Ms. Brenlla complained during this meeting that none of the employees were coming to her for financial information. (Tr. 45). Mr. LaSorsa testified that "the employees weren't going to her, especially the management, for information, from what she told me, and I had time to reflect and to realize that the office ran smoothly for the time [*5] that she was out, and at that moment I decided to combine those two positions." (Tr. 45-46). He further maintained that he did not think about consolidating the office manager and comptroller positions until this meeting (Tr. 37, 44), although Ms. O'Gorman testified that Mr. LaSorsa had told her that he was considering combining the two positions prior to January 25. (Tr. 162).

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2002 U.S. Dist. LEXIS 9358, *7; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 B. FMLA Claims Discussion A. Judgment as a Matter of Law and New Trial Judgment as a matter of law may be granted under Rule 50 only if "(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it]." Galdieri-Ambrosini v. National Realty & Development Co., 136 F.3d 276, 289 (2d Cir. 1998) (citations omitted) (alterations in original). The court must view the evidence in the light most favorable to the party opposing the motion and must defer to all of the jury's credibility determinations and reasonable inferences. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000); [*8] Raniola v. Bratton, 243 F.3d 610, 616 (2d Cir. 2001); Caruolo v. John Crane, Inc., 226 F.3d 46, 51 (2d Cir. 2000); Galdieri-Ambrosini, 136 F.3d at 289. On a Rule 50 motion, the court "may not weigh the credibility of witnesses or otherwise consider the weight of the evidence." Caruolo, 226 F.3d at 51 (citing Galdieri-Ambrosini, 136 F.3d at 289). Indeed, "although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves, 530 U.S. at 151 (citation omitted). The standard for granting a new trial under Rule 59 is less stringent. "Unlike a motion for judgment as a matter of law, a trial judge considering a motion for a new trial is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner." United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998) (internal quotations and citation omitted). Accordingly, "'a motion for a new trial may be granted even if there is substantial evidence to support the jury's verdict.'" Caruolo, 226 F.3d at 54 [*9] (quoting Landau, 155 F.3d at 104). A new trial is warranted if the court "is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Caruolo, 226 F.3d at 54 (internal quotations and citation omitted). The jury's verdict as to each of the claims may now be judged against these standards. The defendants move for a new trial or judgment as a matter of law on the FMLA claims. The jury found that the defendants had violated two provisions of the FMLA: first, that they had failed to reinstate Ms. Brenlla to an equivalent position and second, that they had retaliated against her for exercising her rights under the FMLA. 1. Denial of Benefits To have made out a prima facie case for the denial of benefits, the plaintiff must have demonstrated:

(1) that she is an "eligible employee" under the FMLA; (2) that defendants constitute an employer under the FMLA; (3) that she was entitled to leave under the FMLA; (4) that she gave notice to defendants of her intention to take leave; and (5) that defendants denied her benefits to which she was entitled by the FMLA.

[*10] Santos v. Knitgoods Workers' Union, Local 155, 1999 U.S. Dist. LEXIS 9036, No. 99 Civ. 1499, 1999 WL 397500, at *3 (S.D.N.Y. June 15, 1999) (citations omitted). The only element contested by the defendants is the last, namely whether the plaintiff was denied a benefit to which she was entitled. There are several provisions of the statute that prescribe benefits. For example, covered employers must grant employees who have worked for twelve months up to twelve weeks leave each year for "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1). The benefit at issue here is set forth in 29 U.S.C. § 2614(a)(1), which requires that an employee who takes FMLA-covered leave "be restored by the employer to the position of employment held by the employee when the leave commenced; or . . . to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." n2 Despite this provision, the FMLA does not entitle employees out on leave to unqualified reinstatement; termination ends the right to reinstatement, provided that the employee [*11] would have been discharged had she not taken leave. 29 C.F.R. § 825.216(a)(1). n3 "This is so because the FMLA does not entitle an employee taking

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2002 U.S. Dist. LEXIS 9358, *11; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 FMLA leave to any greater rights than employees who have not taken such leave." Santos, 1999 U.S. Dist. LEXIS 9036, 1999 WL 397500, at *3 (footnote omitted); see also 29 U.S.C. § 2614(a)(3) ("Nothing in [29 U.S.C. § 2614] shall be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave."). Conversely, "employers cannot use the taking of FMLA leave as a negative factor in employment action." 29 C.F.R. § 825.220(c). n2 The plaintiff does not specify under what section of the FMLA her claim arises. Some courts have found that a failure to reinstate claim can be brought under 29 U.S.C. § 2614(a), see Hale v. Mann, 219 F.3d 61, 68 (2d Cir. 2000); Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319 (5th Cir. 1999), whereas others have found that 29 U.S.C. § 2614(a) only describes certain benefits and that any cause of action for failure to reinstate must be brought under 29 U.S.C. § 2615(a)(1), which bars employers from "interfering with, restraining, or denying the exercise of or the attempt to exercise, any right provided under [the FMLA]." See O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1352 (11th Cir. 2000); King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999); Mann v. Mass. Correa Electric, J.V., 2002 U.S. Dist. LEXIS 949, No. 00 Civ. 3559, 2002 WL 88915, at *5-6 (S.D.N.Y. Jan. 23, 2002); Santos, 1999 U.S. Dist. LEXIS 9036, 1999 WL 397500, at *3. Under either provision the analysis is the same. [*12] during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. For example: (1) If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer's responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise. An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration. 29 C.F.R. § 825.216.

n3 Section 825.216 reads: Are there any limitations on an employer's obligation to reinstate an employee? (a) An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed

The defendants argue that [*13] Ms. Brenlla could not be reinstated because the comptroller position no longer existed and there was no other comparable position available. They maintain that legitimate business concerns motivated consolidation of the responsibilities of the comptroller with those of the office manager, all of which were being performed by Ms. O'Gorman while Ms. Brenlla was on leave. (Memorandum of Law in Support of Defendants' Motion to Set Aside the Jury Verdict ("Def. Memo.") at 3-5). The defendants also contend that they underwent a reduction in force when the two positions were combined. They maintain that the subsequent hiring of a clerical worker, Ms. Ayuso, was not to replace Ms. Brenlla, but to fill the position of an employee who had left in 1998. (Def. Memo. at 4-5). None of the defendants' arguments, however, warrant either judgment as a matter of law or a new trial. There was ample evidence to support the jury's conclusion that Ms. Brenlla's termination and the consolidation of positions were not motivated by

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2002 U.S. Dist. LEXIS 9358, *13; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 legitimate business concerns. First, although the defendants claim that the termination arose from their desire to "save [the] plaintiff's salary" (Def. Memo. at 3), it is unclear [*14] what if any financial benefits the defendants reaped from the consolidation. Contrary to the defendants' contention, there was not a reduction in force; Joan Ayuso was hired three months after the plaintiff was discharged. (Tr. 206-07). Although the defendants maintain that Ms. Ayuso replaced a clerical worker, Dawn Clemenza, who had left sometime before July 1998 (Def. Memo. at 4-5), this explanation strains credulity since Ms. Clemenza's position had been left vacant for almost a year. In addition, there was evidence that after Ms. Clemenza's departure, her responsibilities were divided up among the remaining four workers such that her position no longer existed. (Tr. 219-20, 91-92; Exh. 1). n4 n4 Mr. LaSorsa's credibility was further undermined by his statement that he decided to consolidate the positions and reduce his back office staff from four to three people during a fifteen minute meeting with Ms. Brenlla. (Tr. 45-46). On its face such a statement seems unbelievable: business decisions to reduce the administrative staff by twenty-five percent usually result from more careful consideration. Additionally, Ms. O'Gorman testified that Mr. LaSorsa had considered the consolidation before the meeting with Ms. Brenlla. (Tr. 162). [*15] Second, even if Mr. LaSorsa reduced the payroll by replacing a managerial position with a clerical one, there is no evidence that this was part of any business plan or that this restructuring would have taken place had Ms. Brenlla not taken leave. See 29 C.F.R. § 825.216(a)(1) (if employee is discharged while on leave, "an employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration"); Kosakow v. New Rochelle Radiology Associates, P.C., 88 F. Supp. 2d 199, 209-10 (S.D.N.Y. 2000) ("The burden is on the employer to prove that the employee is not entitled to reinstatement of her job because her job would have been eliminated during that same period, even if she had not taken leave."), vacated on other grounds, 274 F.3d 706, 733 (2d Cir. 2001). Indeed, the temporal proximity between the plaintiff's request to be reinstated and the defendants' decision to terminate her employment clearly supports the conclusion that Ms. Brenlla was terminated because she took FMLA-covered leave. See Santos, 1999 U.S. Dist. LEXIS 9036, 1999 WL 397500, [*16] at *4 ("the coincidence of timing between the taking of leave and the termination of her employment -- eighteen days -- do [sic] present circumstantial support for a causal-relationship claim"); see also Merli v. Bill Communications, Inc., 2002 U.S. Dist. LEXIS 4530, No. 01 Civ. 0359, 2002 WL 424649, at *6 (S.D.N.Y. March 18, 2002). Third, if the plaintiff's firing had been part of a legitimate business plan, some consideration would have gone into deciding who was best suited for the new consolidated position. There was no evidence that any assessment of Ms. Brenlla's or any other employee's qualifications ever took place. Nor was there any indication that her past performance was deficient. Cf. Hodgens v. General Dynamics Corp., 144 F.3d 151, 166 (1st Cir. 1998) (legitimate business reason where plaintiff was transferred and subsequently terminated because of realignment of staff caused by reduction in force that took place before plaintiff took FMLA-related leave and plaintiff's poor job performance); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (no violation of ADEA where plaintiff was terminated as part of reduction in force but was [*17] not reassigned based on his performance and abilities as compared to other candidates). In fact, the evidence supports the conclusion that Ms. Brenlla's leave of absence was the sole determining factor in Mr. LaSorsa's decision to consolidate the positions and to decline to consider her for the new position. Cf. Hodgens, 144 F.3d at 166; Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1157 (7th Cir. 1997) (employee not entitled to reinstatement where position was eliminated as part of reduction in force in June but was allowed to continue working until she took maternity leave in October); Lacey-Manarel v. Mothers Work, Inc., 2002 U.S. Dist. LEXIS 5541, No. 01 Civ. 0235, 2002 WL 506664, at *2 (S.D.N.Y. March 29, 2002) (no violation of FMLA where plaintiff fired while on maternity leave because undisputed evidence that prior to termination defendant undertook substantial reorganization prompted by legitimate business considerations); Kosakow, 88 F. Supp. 2d at 210-11 (legitimate business reason where company suffering financial losses and plaintiff was only part-time technician not cross-trained in related fields); see also

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2002 U.S. Dist. LEXIS 9358, *17; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 Woroski v. Nashua Corp., 31 F.3d 105, 109 (2d Cir. 1994) [*18] (no violation of ADEA where dismissal of two plaintiffs occurred as part of legitimate business-motivated downsizing of 298 employees; employees not replaced after termination; and remaining employees in departments were 40 or older and had greater seniority). Finally, even the caselaw relied upon by the defendants does not support their position. In the cited cases, the employers had documented financial losses that resulted in either large-scale terminations or the dismissal of an employee with lesser qualifications. See O'Connor, 200 F.3d at 1351, 1354-55 (where employer was undergoing multi-phase reduction in force due to two years of economic losses, no FMLA violation when employee on FMLA leave terminated along with 190 other employees); Kosakow, 88 F. Supp. 2d at 210-11 (legitimate business reason where company suffered financial losses). None of these factors is present in this case. Because the jury verdict with regard to liability for denial of benefits under the FMLA is neither seriously erroneous nor against the weight of the evidence, the defendants' motion for judgment as a matter of law or for a new trial is denied. 2. Retaliation [*19] The jury also found the defendants liable for retaliating against the plaintiff for having taken leave covered by the FMLA. Section 2615 prohibits employers from engaging in three types of activities: (1) they shall not "interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the FMLA, 29 U.S.C. § 2615(a)(1); (2) they may not "discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by" the FMLA, 29 U.S.C. § 2615(a)(2); and (3) they cannot: discharge or in any other manner discriminate against any individual because such individual . . . has filed any charge . . . related to [the FMLA] . . . has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under [the FMLA] or . . . has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under [the FMLA]. 29 U.S.C. § 2615(b). Prior to being terminated, Ms. Brenlla did not oppose any practice of the defendants nor was she in any way connected [*20] with any claim, inquiry, or proceeding against the defendants. Therefore, any retaliation claim in this case falls under section 2615(a)(1). See Mann, 2002 U.S. Dist. LEXIS 949, 2002 WL 88915, at *6 (retaliation claim may be brought under 29 U.S.C. § 2615(a)(1)); see also Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001); King, 166 F.3d at 891; Hodgens, 144 F.3d at 160. But see O'Connor, 200 F.3d at 1352 (retaliation claims are brought under § 2615(a)(2), not § 2615(a)(1)); Merli, 2002 U.S. Dist. LEXIS 4530, 2002 WL 424649, at *5 (interpreting retaliation claim as having been brought under 29 U.S.C. §§ 2615(a)(2) & (b) where plaintiff did not identify particular FMLA provision violated and where plaintiff was fired after requesting FMLA-covered leave but neither opposed any practice of the employer nor was connected with any charge or inquiry prior to filing action); Bond v. Sterling, Inc., 77 F. Supp. 2d 300, 301 (N.D.N.Y. 1999) (implicitly accepting plaintiff's argument that 29 U.S.C. § 2615(a)(2) applies to retaliatory [*21] discharge claim where no indication that plaintiff opposed any unlawful practice of employer). The Second Circuit has not addressed what legal framework applies to FMLA retaliatory discharge claims brought under § 2615(a)(1), and there is a split among the circuit courts about whether the McDonnell Douglas burden shifting analysis governs. Compare Chaffin, 179 F.3d at 319 (McDonnell Douglas analysis applies in retaliatory discharge in claim under § 2615(a)(1)), n5 King, 166 F.3d at 892, Hodgens, 144 F.3d at 160, and Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997), with Bachelder, 259 F.3d at 1125 (McDonnell Douglas framework does not apply to retaliatory discharge claims under 29 U.S.C. § 2615(a)), and Mann, 2002 U.S. Dist. LEXIS 949, 2002 WL 88915, at *6. It is unnecessary to resolve the issue in this case because regardless of whether the McDonnell Douglas framework is employed, the result is the same. n5 The court in Chaffin incorrectly attributes the requirement not to "interfere with, restrain, or deny the exercise of . . . any right provided under" the FMLA to 29 U.S.C. § 2615(a)(2) instead of subsection (a)(1).

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2002 U.S. Dist. LEXIS 9358, *21; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 Under this theory, a plaintiff "must [only] show that (1) she participated in FMLA-protected activity and (2) the decision to terminate her employment was motivated by her participation in the protected activity." Mann, 2002 U.S. Dist. LEXIS 949, [WL] at *7; see also Bachelder, 259 F.3d at 1125 (plaintiff in retaliatory discharge claim under § 2615(a)(1) "need only prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her"). Because the plaintiff satisfies the more rigorous McDonnell Douglas analysis as described below, she also has established liability under the standard enunciated in Bachelder and Mann. n6 Unlike sections 2615(a)(2) & (b), section 2615(a)(1) does not specifically refer to discriminatory intent. However, there is an implementing regulation that bars employers from "discriminating against employees . . . who have used FMLA leave," 29 C.F.R. § 825.220(c), but does not specify to which section or subsection of the FMLA it applies. As a consequence, courts have interpreted section 2615(a)(1) as requiring discriminatory intent on the basis of 29 C.F.R. § 825.220(c). The Bachelder and Mann decisions criticize this approach and maintain that the regulations should not be used to impose an intent requirement where one clearly does not exist in the statute. Bachelder, 259 F.3d at 1124; Mann, 2002 U.S. Dist. LEXIS 949, 2002 WL 88915, at *6. [*25] The defendants concede that the plaintiff set forth a prima facie case. They claim, rather, that she has failed to establish pretext. As discussed above, the defendants argue that the plaintiff was fired for legitimate business reasons arising from a corporate restructuring. For many of the same reasons previously mentioned, the defendants' position is without merit. There was sufficient and credible evidence to support the jury's conclusion that Mr. LaSorsa's reason for firing Ms. Brenlla was pretextual, based on the incredibility of Mr. LaSorsa's testimony that he wanted to "save plaintiff's salary" where he later hired Ms. Ayuso; the absence of any business plan to support the restructuring; Ms. Brenlla's satisfactory work history; and the temporal proximity between the request for reinstatement and the

[*22] Under the McDonnell Douglas analysis, the plaintiff must first establish a prima case of discrimination by demonstrating that: (1) she engaged in a protected activity; (2) she was adversely affected by an employment decision; and (3) there is a causal connection between the protected activity and the adverse action. See Chaffin, 179 F.3d at 319; King, 166 F.3d at 892; Hodgens, 144 F.3d at 161; Morgan, 108 F.3d at 1325. Once accomplished, the burden shifts to the defendant to produce evidence "that the adverse employment actions were taken 'for a legitimate, nondiscriminatory reason.'" St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981)). "This burden is one of production, not persuasion; it 'can involve no credibility assessment.'" Reeves, 530 U.S. at 142 (quoting St. Mary's Honor Center, 509 U.S. at 509). Despite this shift of the burden of production to the defendant, "the ultimate [*23] burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253) (emphasis supplied). If the defendant provides evidence of legitimate, nondiscriminatory reasons for its action, the plaintiff must "'prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Id. (quoting Burdine, 450 U.S. at 253). Pretext can be demonstrated "'by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Burdine, 450 U.S. at 256). Additionally, the trier of fact "may still consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Id. (quoting Burdine, 450 U.S. at 255, n.10). In contrast to the First, Fifth, Seventh, and Tenth Circuits, the Ninth Circuit, along with at least one decision in the Southern District of New York, has [*24] found that the McDonnell Douglas analysis does not apply to retaliatory discharge claims brought under section 2615(a)(1). Bachelder, 259 F.3d at 1125; Mann, 2002 U.S. Dist. LEXIS 949, 2002 WL 88915, at *6. n6

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2002 U.S. Dist. LEXIS 9358, *25; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 termination. Accordingly, the defendants' motion to set aside the jury verdict and for judgment as a matter of law or a new trial is denied. C. Disability Discrimination The plaintiff moves for judgment as a matter of law or a new trial to determine whether she was disabled under the ADA, the NYSHRL, and the NYCHRL and for a new trial to establish whether she was terminated [*26] in violation of these laws. (Plaintiff's Memorandum of Law in Support of her Motion for Attorney's Fees, Costs, and Litigation Expenses, Prejudgment Interest, Additional Front Pay and Judgment as a Matter of Law and/or New Trial ("Pl. Memo.") at 12). The defendants did not respond to this portion of the plaintiff's motion. 1. The ADA The ADA prohibits employment discrimination "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). In order to establish that the plaintiff has a qualifying disability under the ADA, she must show that she suffers from "a physical or mental impairment that substantially limits one or more of the major life activities." 42 U.S.C. § 12102(2)(A). This requires a three-step approach: first, the plaintiff must demonstrate that she suffers from a "physical or mental" impairment; second, she must prove that the function she claims is impaired amounts to a "major life activity;" and third, she must show that the specified impairment "substantially limits" that major life activity. See Bragdon v. Abbott, 524 U.S. 624, 631, 141 L. Ed. 2d 540, 118 S. Ct. 2196 (1998); [*27] Colwell v. Suffolk County Police Department, 158 F.3d 635, 641 (2d Cir. 1998). The strongest rebuttal to the plaintiff's motion comes from the third prong of the analysis. Ms. Brenlla claims that as a result of her cardiac condition, she was substantially impaired in the major life activities of walking and standing, both of which have been recognized as major life activities. 29 C.F.R. § 1630.2(i) ("major life activities means functions such as . . . walking"); Colwell, 158 F.3d at 642 ("We have identified other 'major life activities,' including, but not limited to, 'sitting, standing, lifting, or reaching.'"). Under the EEOC regulations, an individual is "substantially limited" if she is: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

29 C.F.R. § 1630.2(j)(1) [*28] . The regulations also list the following factors that should be considered in determining whether an individual is substantially limited: "(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2); see Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 871-72 (2d Cir. 1998) (applying factors). Ms. Brenlla presented some evidence that she had difficulty walking and standing, which usually occurred when she engaged in these activities for longer periods of time. (Tr. 66-67 (limited in her ability to climb stairs and walk), 81 (cannot walk for long periods of time, jog, or stand for long periods), 108 (not able to walk long distances and needs cane to walk upstairs)). However, there was no testimony about the expected duration of the restrictions or their long term impact. Therefore, it was not erroneous for the jury to conclude that these limitations did not constitute a significant restriction. 2. State and City Disability Discrimination Claims Disability under the NYSHRL [*29] is defined as "a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions." N.Y. Exec. Law § 292(21). To qualify as a disability, these conditions must either "prevent[] the exercise of a normal bodily function or [be] demonstrable by medically accepted clinical or laboratory diagnostic techniques." Id.; see also Epstein v. Kalvin-Miller International, Inc., 100 F. Supp. 2d 222, 229 (S.D.N.Y. 2000); State Division of Human Rights v. Xerox Corp., 65 N.Y.2d 213, 218-19, 491 N.Y.S.2d 106, 109, 480 N.E.2d 695 (1985). The Second Circuit has found that the

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2002 U.S. Dist. LEXIS 9358, *29; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 term "disability" in the NYSHRL should be construed more broadly than the definition in the ADA. Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 154 (2d Cir. 1998). This is because the second definition of disability in the NYSHRL does not require any showing of limitation of a particular activity or function. Id. Here, the jury was entitled to conclude that the plaintiff did not show by a preponderance of the evidence that her condition prevented her from exercising a body function. Although limited in [*30] some areas, she was not precluded from exercising any normal body function. The plaintiff also did not satisfy the alternative prong of the definition of disability because she failed to show that the diagnosis of congestive heart failure and atrial fibrillation lasted beyond her hospitalization. Under the NYCHRL, disability is defined as "any physical, medical, mental or psychological impairment, or a history or record of such impairment." N.Y.C. Admin. Code § 8-102(16)(a). "Physical, medical or psychological impairment" is described as "an impairment of any system of the body; including, but not limited to . . . the cardiovascular system." N.Y.C. Admin. Code § 8-102(16)(b)(1). Because the standard for disability under the NYCHRL is coextensive with that under the NYSHRL, see Barr v. New York City Transit Authority, 2002 U.S. Dist. LEXIS 2968, No. 99- CV-7927, 2002 WL 257823, at *8 (E.D.N.Y. Feb. 20, 2002); Hopkins v. Digital Equipment Corp., 1998 U.S. Dist. LEXIS 15762, 1998 U.S. Dist. LEXIS No. 93 Civ. 8468, 1998 WL 702339, at *14 (S.D.N.Y. Oct. 8, 1998), the plaintiff's motion for judgment as a matter of law or a new trial on the NYCHRL claim is also denied. D. Front Pay The defendants also move to set aside the jury's [*31] award of front pay. They argue that she failed to mitigate her damages because she found comparable employment at Westchester Toyota but was terminated for performance reasons. In the alternative they claim that her front pay award should be reduced to $ 21,600, which represents the difference between her compensation at LaSorsa Buick and Westchester Toyota over a one-year period. (Def. Memo. at 7). The plaintiff moves to increase the front pay award. She maintains that the award of $ 70,000 represents only one year of front pay and that it should be increased threefold because she would have retired at 67 not 65 years old due to financial considerations. (Pl. Memo at 8-10). The jury's determination regarding front pay is considered an advisory verdict, see Epstein v. Kalvin-Miller International, Inc., 2000 U.S. Dist. LEXIS 17311, No. 96 Civ. 8158, 2000 WL 1761052, at *1-2 (S.D.N.Y. Nov. 29, 2000), because, as an equitable remedy, it is only awarded at the discretion of the court. See Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1182 (2d Cir. 1996) (Title VII); Sharkey v. Lasmo, 15 F. Supp. 2d 401, 404 (S.D.N.Y. 1998) (ADEA), vacated on other grounds, 214 F.3d 371 (2d Cir. 2000); [*32] see also Nichols v. Ashland Hospital Corp., 251 F.3d 496, 503-04 (4th Cir. 2001) (FMLA); Thorson v. Gemini, Inc., 205 F.3d 370, 384 (8th Cir.) (FMLA), cert. denied, 531 U.S. 871, 148 L. Ed. 2d 117, 121 S. Ct. 172 (2000). Front pay "represents compensation for future losses that the plaintiff would not suffer but for the discriminatory acts of the defendant," Rivera v. Baccarat, Inc., 34 F. Supp. 2d 870, 877 (S.D.N.Y. 1999), and serves to make a discharged employee whole where she has "no reasonable prospect of obtaining comparable alternative employment." Padilla v. Metro-North Commuter Railroad, 92 F.3d 117, 126 (2d Cir. 1996) (ADEA) (quoting Whittlesey v. Union Carbide Corp., 742 F.2d 724, 729 (2d Cir. 1984)). Front pay should not, however, be awarded where the calculation method is too speculative. Sagendorf-Teal v. County of Rensselaer, 100 F.3d 270, 277 (2d Cir. 1996) (Section 1983); Whittlesey, 742 F.2d at 728 (ADEA). The framework for awarding front pay in Title VII employment discrimination cases is instructive here. See Miller v. AT & T Corp., 250 F.3d 820, 838 (4th Cir. 2001) [*33] (FMLA case applying analysis under Title VII); Thorson v. Geminin, Inc., 96 F. Supp. 2d 882, 890-91 (N.D. Iowa 1999) (same), aff'd, 205 F.3d 370 (8th Cir.), cert. denied, 531 U.S. 871, 148 L. Ed. 2d 117, 121 S. Ct. 172 (2000); Viereck v. City of Gloucester City, 961 F. Supp. 703, 709 (D.N.J. 1997) (same). In Title VII cases, where there is a statutory requirement to mitigate damages, see 42 U.S.C. § 2000e-5(g)(1), courts require the plaintiff to have exercised reasonable diligence in obtaining subsequent employment before awarding back pay, but the burden is on the defendant to demonstrate that suitable work existed and that the plaintiff made no reasonable effort to find it. See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998). A similar analysis applies to awards of front pay. n7 See Id. at 53-54; Epstein v. Kalvin-Miller International, Inc., 139

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2002 U.S. Dist. LEXIS 9358, *33; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 F. Supp. 2d 469, 482 (S.D.N.Y. 2001). n7 Because the award of front pay is equitable, courts may tailor the period for which front pay is calculated -- and, thus, the size of the award -- to the extent of the plaintiff's efforts to find comparable employment. [*34] The defendants first argue that Ms. Brenlla is not entitled to any front pay because she voluntarily left B & L Toyota and was fired from Westchester Toyota due to her poor performance. Voluntarily leaving suitable employment can only decrease a front pay award if it is the result of the failure to exercise reasonable diligence, see Barbour v. Medlantic Management Corp., 952 F. Supp. 857, 864-65 (D.D.C. 1997) (awarding front pay in Section 1981 claim), or if there are no compelling or justifiable reasons for having left the job. See Reiner v. Family Ford, Inc., 146 F. Supp. 2d 1279, 1288 (M.D. Fla. 2001) (Title VII case awarding backpay); see also Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1273, 1278 (4th Cir. 1985) (same). In this case, the plaintiff left B & L Toyota and started working almost immediately at Westchester Toyota, where she was paid a comparable salary. Because she certainly displayed reasonable diligence, her resignation alone does not preclude front pay. Cf. Reilly v. Cisneros, 835 F. Supp. 96, 99 (W.D.N.Y. 1993) (Title VII plaintiff not entitled to back or front pay where he fails to remain [*35] in labor market, fails to accept substantially similar employment, fails diligently to search for alternative work or voluntarily quits alternative employment without good reason). Termination from subsequent employment can also limit an award of front pay. In ruling on a back pay award, the Sixth Circuit found that an award should only be denied where the employee's discharge from interim employment was the result of "gross" or "egregious" misconduct or where the discharge for cause was due to her willful violation of company rules. Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1169 (6th Cir. 1996) (plaintiff in Title VII and Section 1981 case entitled to back pay where discharge from interim employment was result of negligence that caused accident, not gross or egregious misconduct or willful violation of company rules); see also Brady, 753 F.2d at 1276-79 (plaintiffs not awarded back pay in Title VII case where they willfully violated rules at subsequent employment). The defendants did not present any evidence that Ms. Brenlla's termination was the result of misconduct. The only mention of the reason why she was discharged from Westchester [*36] Toyota was that her employer did "not like [her] performance there." (Tr. 145; see also Tr. 105). This is insufficient to establish that she was fired because of gross, egregious, or willful misconduct. See Epstein, 139 F. Supp. 2d at 482 (in Title VII case defendant has burden to prove that plaintiff did not exercise reasonable diligence sufficient to deny front pay award). Accordingly, Ms. Brenlla's termination from Westchester Toyota does not preclude front pay. Ms. Brenlla clearly exercised reasonable diligence in securing comparable employment; even after she was fired from Westchester Toyota, she obtained a bookkeeping position at Riverdale Chrysler. (Tr. 105). Moreover, she has "no reasonable prospect of obtaining comparable alternative employment" at least in the near future owing to the downturn in the economy. Padilla, 92 F.3d at 126. She has continued to interview and look for employment without success since her termination from Riverdale Chrysler. Nevertheless, there is nothing in the record to indicate that Ms. Brenlla will not be able to secure employment within the year. An award of $ 70,000, equivalent to her yearly salary at [*37] LaSorsa Buick, is appropriate because any greater award would be unreasonable and unduly speculative. See Epstein, 139 F. Supp. 2d at 485 (where jury's analysis was sound and award reasonable, "Court will not disturb the jury's front or back pay awards"). Therefore, both the defendants' and the plaintiff's motions regarding front pay are denied, and I adopt the jury's finding that an award of $ 70,000 is appropriate. E. Prejudgment Interest The plaintiff next moves for an award of prejudgment interest on her back pay award. Under the FMLA, Any employer who violates section 2615 of [the FMLA] shall be liable . . .

(A) for damages equal to (i) the amount of (I) any wages, salary,

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2002 U.S. Dist. LEXIS 9358, *37; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 employment benefits or other compensation denied or lost to such employee by reason of the violation; . . . [*39] (ii) the interest on the amount described in clause (i) calculated at the prevailing rate; and (iii) an additional amount as liquidated damages. The plaintiff argues that the Court should use 28 U.S.C. § 1961 to calculate the interest rate and compound the interest annually. Although section 1961 governs awards of postjudgment interest, courts have often applied this rate when awarding prejudgment interest in employment discrimination cases. Robinson v. Instructional Systems, Inc., 80 F. Supp. 2d 203, 208 (S.D.N.Y. 2000) (Title VII); Losciale v. Port Authority of New York and New Jersey, 1999 U.S. Dist. LEXIS 11990, No. 97 Civ. 0704, 1999 WL 587928, at *10 (S.D.N.Y. Aug. 4, 1999) (ADEA). In light of this precedent and because the defendants have not raised any objection, prejudgment interest shall be awarded at the rate prescribed by 28 U.S.C. § 1961, compounded annually. n9 See Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 145 (2d Cir. 1993) (compounding interest); Robinson, 80 F. Supp. 2d at 208. n9 In calculating the prejudgment interest, the backpay award should be divided pro rata over a two year period, from January 25, 1999, when the plaintiff was terminated by Mr. LaSorsa, to February 14, 2002, when the jury reached its verdict, before applying the annual United States Treasury bill rate referred to in 28 U.S.C. § 1961. See Robinson, 80 F. Supp. 2d at 208. [*40] n8 Factors taken into consideration by courts in employment actions brought under other statutes, such as section 1983 or Title VII, are similarly unavailing because such laws do not specifically provide for prejudgment interest. See Gierlinger v. Gleason, 160 F.3d 858, 873 (2d Cir. F. Attorneys' Fees, Costs, and Expenses Finally, Ms. Brenlla moves for attorneys' fees, costs, and expenses as follows: 1998) (Section 1983 employment action); Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992) (Title VII).

29 U.S.C. § 2617(a)(1). The defendants urge the Court to consider several equitable factors enumerated in Wickham Contracting Co. v. Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, 955 F.2d 831 (2d Cir. 1992), [*38] and deny the plaintiff prejudgment interest. However, the court in Wickham was faced with a claim under the Labor Management Relations Act, 29 U.S.C. §§ 141-197, which, in contrast to the FMLA, does not specially mandate prejudgment interest. See id. at 833 ("The LMRA is silent on the subject of prejudgment interest."); cf. McDonnell v. Miller Oil Co., 134 F.3d 638, 640 (4th Cir. 1998) (trial court awarded prejudgment interest pursuant to 29 U.S.C. § 2617(a)(1) even though jury's award was only nominal); Churchill v. Star Enterprises, 3 F. Supp. 2d 625, 627 (E.D. Pa. 1998) (noting that trial court imposed statutory prejudgment interest), aff'd, 183 F.3d 184 (3d Cir. 1999). n8 Therefore, prejudgment interest shall be awarded.

Attorney Michael J. Volpe George F. Brenlla Daniel C. Moreland

Hours Expended 98.69 62.01 16.67

Hourly Rate $ 345 $ 270 $ 270

Total $ 34,048.05 $ 16,742.70 $ 4,500.90

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Attorney Shaffin A. Datoo Total

Hours Expended 126.20

Hourly Rate $ 175

Total $ 22,085.00 $ 77,376.65

Cost/Expense Incurred Filing Fee for Complaint Photocopies Messenger Service Transcripts Secretarial Overtime Computerized Legal Research Defendants' Financial Report Witness and Subpoena Fees Total

Amount $ 150.00 $ 546.24 $ 12.50 $ 1,244.40 $ 87.11 $ 493.67 $ 112.00 n10 $ 2,920.00 $ 5,560.92

n10 The plaintiff had initially requested $ 3,160 in witness and subpoena fees but subsequently revised the amount because the process server reduced its fee by $ 245. (Plaintiff's Reply Memorandum of Law in Further Support of Her Motion for Attorney's Fees, Costs, and Litigation Expenses, Prejudgment Interest, Additional Front Pay and Judgment as a Matter of Law and/or New Trial ("Pl. Reply Memo.") at 6;

Exh. 4 to Affidavit of Michael J. Volpe dated March 29, 2002 ("March 29, 2002 Volpe Aff.") attached to Pl. Reply Memo.)

[*41] (Billing Records dated March 4, 2002 ("March 4 Billing Records") attached as Exh. A to Affidavit of Michael J. Volpe dated March 5, 2002). While the defendants do not dispute that the plaintiff is entitled to fees and costs, they contend that an award for the full amount requested

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2002 U.S. Dist. LEXIS 9358, *41; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 would be unjust. To support their argument, the defendants maintain that (1) a lower more reasonable billing rate should be used due to the plaintiff's failure to provide proof of the attorneys' actual rates; (2) the legal bill is filled with "questionable entries, duplicative tasks, and excessive time billed for the tasks performed;" (3) the plaintiff failed to submit an invoice for the claimed legal research and subpoena fees; and (4) the costs for serving subpoenas were excessive. (Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Attorney Fees, Costs, Litigation Expenses, Prejudgment Interest and Additional Front Pay ("Def. Opp. Memo.") at 1-4). Under the FMLA, a successful plaintiff is entitled to a "reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant." 29 U.S.C. § 2617(a)(3). To determine [*42] reasonable attorneys' fees, the court first calculates the "lodestar" amount by multiplying the number of hours reasonably expended by the appropriate hourly rates for attorneys. See Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). "The district court should exclude excessive, redundant or otherwise unnecessary hours." Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999) (citing Hensley, 461 U.S. at 433-35, 440). While the lodestar can then be adjusted in light of factors such as the results obtained, Hensley, 461 U.S. at 434, "there is . . . a strong presumption that the lodestar figure represents a reasonable fee." Quaratino, 166 F.3d at 425 (citation and internal quotation omitted). 1. Reasonable Rates Without any legal basis, the defendants claim that the plaintiff's attorneys' billing rates are unsupported by actual billing records and that they should therefore be reduced to $ 225-250 for Mr. Volpe, $ 175-200 for Mr. Brenlla and Mr. Moreland, and $ 150 for Mr. Datoo. This argument is without merit. First, in their reply papers, the plaintiff's attorneys [*43] provided documentation for their billing rates. n11 Second, the rates charged by plaintiff's counsel are not excessive for such a case. n11 Indeed, it appears from Clifton Budd & DeMaria's billing records that Mr. Datoo bills out at $ 190 not $ 175. (Billing Records attached as Exh. 2 to March 29, 2002 Volpe Aff.; Pl. Reply Memo. at 2 n.1). In order to determine reasonable rates, a court must consider rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 896 n.11, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). The relevant "community" is the district in which the court sits. See Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997). Here, Mr. Volpe is a partner with twelve years of experience litigating cases involving labor and employment law; Mr. Brenlla and Mr. Moreland, senior associates, have each had eight years litigating civil rights cases; and Mr. Datoo, a junior associate, [*44] has had two years of litigation experience. Their rates -- $ 345, $ 270 and $ 175, respectively -- fall within the reasonable range given their tenure. See, e.g., Marisol A. v. Giuliani, 111 F. Supp. 2d 381, 386-87 (S.D.N.Y. 2000) ($ 375 per hour for lead attorney, $ 350 per hour for attorneys with more than 15 years experience, $ 230-250 per hour for attorneys with 7-9 years experience); Ward v. New York City Transit Authority, 1999 U.S. Dist. LEXIS 9621, No. 97 Civ. 8550, 1999 WL 446025, at *10 (S.D.N.Y. June 28, 1999) ($ 300 for experienced litigator in civil rights action); Altman v. Port Authority of New York and New Jersey, 879 F. Supp. 345, 353 (S.D.N.Y. 1995) (finding that "the range of rates charged for [representation in employment discrimination cases] by lawyers who practice in the metropolitan area [were] $ 175 to $ 375 per hour"). 2. Time Expended The defendants detail several instances in which the time expended by plaintiff's counsel was allegedly excessive. First, they argue that it was unnecessary to expend two and one-half hours drafting an EEOC complaint that was ultimately not used. Mr. Brenlla has submitted an affidavit explaining [*45] that the two and one-half hour entry on June 14, 1999 for drafting an EEOC complaint and filing the charge consisted of one-half hour drafting the complaint on June 15 and two hours on June 22 accompanying the plaintiff to a meeting with an EEOC investigator who reviewed the charge and prepared a standard form for Ms. Brenlla. (Affidavit of George F. Brenlla dated March 28, 2002 ("Brenlla Aff."), PP 2-4, attached as Exh. B to Pl. Reply Memo.). This is a reasonable explanation, and the time spent completing these tasks was not excessive. The defendants next argue that Mr. Volpe and Mr.

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2002 U.S. Dist. LEXIS 9358, *45; 146 Lab. Cas. (CCH) P34,546; 82 Empl. Prac. Dec. (CCH) P41,083; 7 Wage & Hour Cas. 2d (BNA) 1688 Brenlla performed duplicative tasks when they both reviewed the defendants' response to the EEOC charge of discrimination and spent an excessive amount of time looking over the two and one-half page document. Moreover, Mr. Brenlla's entry pre-dates the creation of the document. Again, the plaintiff has provided a reasonable explanation for the time spent. Mr. Brenlla's entry for reviewing the July 16, 1999 position statement should have been dated July 30, 1999, not June 30. (Brenlla Aff., P 5). He looked over the two page document, which had 45-pages of exhibits attached, for just over an hour. (Pl. [*46] Reply Memo. at 4). Mr. Volpe, who was to try the case, also spent two hours looking over the document and holding a conference with Mr. Brenlla to discuss the document. Neither of these entries appears excessive or duplicative. The defendants' third complaint concerns the two hours spent by Mr. Brenlla drafting allegedly routine interrogatories. Two hours to draft specifically tailored interrogatories was not excessive. Similarly, the defendants argue that it was both duplicative and excessive for Mr. Brenlla to spent over five and one-half hours and Mr. Moreland over eight hours drafting and researching proposed voir dire questions and jury instructions. n12 This expenditure of time was justified by the results. Plaintiff's counsel submitted thorough proposed instructions with caselaw on the substantive law governing the claims. n12 Mr. Brenlla also spent part of the five and one-half hours reviewing the defendants' proposed voir dire questions. (Entry for GFB on 02/01/02 in March 4 Billing Records). exhibits. (March 4 Billing Records). Additionally, it is not surprising that the week before trial counsel would spent a significant amount of time conferring about strategy. Accordingly, the time spent was not excessive. Finally, the defendants contend that it was unnecessary for a senior associate to perform certain non-legal tasks, specifically, traveling to the courthouse to pay the filing fee and making telephone calls to the process server. While the amount of time spent accomplishing these tasks seems reasonable, they need not have been done by an attorney. The one and one-half hours spent performing this work should only be compensated at $ 75 per hour instead of $ 270, and the award should accordingly be reduced by $ 292.50. See Marisol A., 111 F. Supp. 2d at 388 ($ 75 rate for paralegal [*48] services). 3. Costs The defendants make two objections to the plaintiff's application for costs. They allege that the plaintiff failed to submit an invoice for the claimed legal research and subpoena fees and that it is "inconceivable" that plaintiff's counsel spent over $ 3,000 to serve six subpoenas in the Bronx. (Def. Opp. Memo. at 4). In her Reply Memorandum the plaintiff submitted invoices and receipts for the legal research performed and the witness and subpoena fees. (March 29, 2002 Volpe Aff., Exh. 3). The fees break down as follows: $ 805 for service of seven subpoenas (March 29, 2002 Volpe Aff., Exh. 4), $ 110 for service of the complaint on Mr. LaSorsa (March 29, 2002 Volpe Aff., P 22), and $ 2,000 for a consultation with Dr. Nicholas Golden, who testified at trial. (Pl. Reply Memo. at 6, 7 n.3; March 29, 2002 Volpe Aff., Exh. 4). Because these costs are documented and reasonable, they will be awarded. 4. Additional Fees and Costs The plaintiff also makes a supplementary application for fees and costs of $ 14,411.08 incurred from March 5 through March 29 as follows:

The defendants [*47] next maintain that plaintiff's counsel held excessively long conferences ranging from one to eight hours for a total of thirty to thirty-five hours. (Def. Opp. Memo. at 3 (citing to entries from February 5-7, 2002)). The defendants fail to recognize that most of these entries also included other tasks such as preparing witnesses, drafting correspondence, and preparing trial

Attorney George F. Brenlla

Hours Expended 3.50

Hourly Rate $ 270

Total $ 945.00

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Attorney Daniel C. Moreland Shaffin A. Datoo Total

Hours Expended 4.18 60.18

Hourly Rate $ 270 $ 175

Total $ 1,128.60 $ 10,531.50 $ 12,605.10

[*49]

Cost/Expense Incurred Photocopies Messenger Service Transcripts Computerized Legal Research Total

Amount $ 42.76 $ 25.09 $ 413.01 $ 1,325.12 $ 1,805.98

(March 29, 2002 Volpe Aff., PP 12-16 & Exh. 1). The defendants have not submitted any response to the application. The request is fully documented and reasonable and shall be granted. Conclusion For the reasons stated above, the defendants' motion for judgment as a matter of law or a new trial on the FMLA claims is denied. Their motion to set aside or reduce the award of front pay and the plaintiff's motion to increase this award are both denied, and the jury's finding on front pay is adopted. The plaintiff's motion for prejudgment interest on the back pay award is granted. Her motion for attorneys' fees and costs is granted in the

amount of $ 97,056.15, and her motion for judgment as a matter of law or a new trial on the ADA, the NYSHRL, and the NYCHRL claims is denied. Plaintiff's counsel shall promptly submit on notice a proposed judgment consistent with this Opinion and Order. SO ORDERED. JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE Dated: New York, New York [*50] May 28, 2002

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LEXSEE BETH CLEGG, Appellant v. FALCON PLASTICS INC; TIMOTHY LEVERS; RICHARD NUGENT No. 05-1826 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

174 Fed. Appx. 18; 2006 U.S. App. LEXIS 8576 February 14, 2006, Argued April 6, 2006, Opinion Filed NOTICE: [**1] RULES OF THE THIRD CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT. PRIOR HISTORY: APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. D.C. Civil 03-cv-01562. District Judge: The Honorable Thomas M. Hardiman. I. The facts, viewed in the light most favorable to Clegg, n1 are as follows. Clegg began working for Falcon [**2] Plastics, Inc. ("Falcon") in 2001. In April 2002, she was transferred to the Shipping & Receiving department to work as Timothy Levers' assistant. At some point prior to September 2002, Clegg and Levers began corresponding via email, often through their personal email addresses and home computers. n1 In evaluating the evidence in the context of a summary judgment motion, we "take the facts in the light most favorable to the nonmoving party . . . and draw all reasonable inferences in [her] favor." Doe v. County of Centre, 242 F.3d 437, 446 (3d Cir. 2001).

COUNSEL: Edward A. Olds, Esq. (Argued), Pittsburgh, PA, Counsel for Appellant. Jana P. Grimm, Esq. (Argued), Phillip J. Binotto, Jr., Esq., Eckert, Seamans, Cherin & Mellott, Canonsburgh, PA; -AND- Allan W. Brown, Esq., Eckert, Seamans, Cherin & Mellott, Pittsburgh, PA, Counsel for Appellees. JUDGES: Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges. OPINION BY: BARRY OPINION: [*21] BARRY, Circuit Judge The District Court granted summary judgment or dismissals to the defendants on Beth Clegg's Title VII hostile work environment and retaliation claims and related state law claims. She now appeals. We have jurisdiction under 28 U.S.C. § 1291. We will affirm in part, reverse in part, and remand for further proceedings.

During the fall of 2002, Clegg was "very stressed out in terms of working," and had "absolutely no social life." (Id. at 164.) Levers frequently told her that she needed to "get a life," and Clegg began to think that "yeah, maybe I do need to start taking some time for myself and kicking back a little bit . . . ." (Id. at 165.) Shortly thereafter, Clegg sent Levers an email (from her home computer to his home computer), which read: [**3] Was just sitting here thinking that we can talk about our kids and sports while we're at work. Let's spice it up a little bit. Let's make it more interesting. Talk d _ _ _y to me. Have to go for now. Please respond,

Case 1:04-cv-00970-JJF

Document 101-4

Filed 01/16/2007

Page 17 of 181
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174 Fed. Appx. 18, *21; 2006 U.S. App. LEXIS 8576, **3

Lizzy (Id. at 164.) Clegg claims that she meant her statement to "Talk d_ _ _y" as a joke, and that Levers should have known it was a joke. Levers, however, did not so interpret Clegg's email, and sent her a "filthy" email in response. Clegg claims that she deleted the email and, accordingly, was unable to produce it during discovery; however, there is no dispute that Levers did, in fact, respond to her in a sexually explicit manner. Clegg also claims that Levers sent eight or nine emails following this one, asking her to respond to his email "in a graphic way." She initially sent some responses to Levers' emails (including one in which she said that his email "knocked my socks off"), but "slowly phased it out" until it finally "got to the point where I just totally eliminated responding, e-mailing[,] any association whatsoever via Internet." (Id. at 170, 169.) When Levers mentioned the email at work, she allegedly told him that she was "totally [**4] shocked when [she] read his response," and that she "was not expecting something like that. I said that was not my intent." (Id. at 172, 168.) Clegg claims that from September 2002 through January 2003, Levers subjected