Hawkins v. 1115 Legal Service Care

• Decision Date: 07 December 1998
• Docket Number: 97-7309,Docket Nos. 97-7280
• Citation: 163 F.3d 684
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 882 Valerie A. HAWKINS, Plaintiff-Appellant-Cross-Appellee, v. 1115 LEGAL SERVICE CARE and Charles F. Hamilton, Esq., individually and in his capacity as Managing Attorney for 1115 Legal Service Care, Defendants-Appellees-Cross-Appellants, and Joseph F. Lipofsky, Esq., individually and in his capacity as Director of 1115 Legal Service Care, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

Page 684

163 F.3d 684

78 Fair Empl.Prac.Cas. (BNA) 882

Valerie A. HAWKINS, Plaintiff-Appellant-Cross-Appellee, v. 1115 LEGAL SERVICE CARE and Charles F. Hamilton, Esq individually and in his capacity as Managing Attorney for 1115 Legal Service Care Defendants-Appellees-Cross-Appellants and Joseph F. Lipofsky, Esq., individually and in his capacity as Director of 1115 Legal Service Care, Defendant.

Docket Nos. 97-7280, 97-7309.

United States Court of Appeals Second Circuit.

Argued April 16, 1998.

Decided Dec. 7, 1998.

Valerie A. Hawkins, Hempstead, New York, Plaintiff-Appellant-Cross-Appellee pro se.

Lauren Reiter Brody, New York, New York (Rosenman & Colin, New York, New York, on the brief), for Defendants-Appellees-Cross-Appellants.

Before: KEARSE and MAGILL ^*, Circuit Judges, and HALL ^**, District Judge. ^***

KEARSE, Circuit Judge:

Plaintiff Valerie A. Hawkins appeals from so much of a judgment and posttrial order entered in the United States District Court for the Eastern District of New York following a combined bench and jury trial before Charles R. Wolle, Judge ¹, as (1) dismissed her claim that defendant 1115 Legal Service Care ("LSC") denied her a promotion on the basis of race or gender, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (1994); (2) reduced to $50,000, pursuant to 42 U.S.C. § 1981a(b)(3)(A) (1994), the jury's award of $1,250,000 in compensatory and punitive damages against LSC and defendant Charles F. Hamilton (collectively "defendants") for discharge of Hawkins in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"); and (3) denied Hawkins an award of attorney's fees pursuant to 42 U.S.C. § 1988 (1994) for stages of the action in which she proceeded pro se. On appeal, Hawkins contends (1) that the district court erred in dismissing her Title VII failure-to-promote claim because defendants' explanation for that failure was pretextual, entitling her to judgment as a matter of law; (2) that the court misapplied the law in reducing the jury's damages award because her retaliation claim was brought under, inter alia, 42 U.S.C. § 1981 (1994), which, unlike § 1981a(b)(3), does not place a ceiling on damages; and (3) that special circumstances warranted an award of attorney's fees to her for her own time spent in pursuing her claims after her original attorney was disbarred. LSC and Hamilton cross-appeal from so much of the judgment and posttrial order as denied their motion to set aside the jury's award to Hawkins of $125,000 in backpay, contending (a) that Hawkins did not reasonably mitigate her damages, and (b) that Hawkins engaged in conduct that, if known to LSC, would have warranted her discharge, and hence limited the period for which LSC was liable for backpay. We affirm in all respects.

I. BACKGROUND

Many of the facts were stipulated prior to trial.

A. Hawkins's Employment at LSC

At all pertinent times, LSC was an entity associated with a labor union of nursing home and hospital workers. Funded by employer contributions, LSC rendered prepaid legal services to members of the union. In 1987, LSC had four offices: one in New York City and three in the Long Island villages of Lawrence, Hauppauge, and Westbury. Westbury was the largest of the Long Island offices.

Hawkins, an African-American woman, graduated from law school in 1982 and was admitted to the New York State bar in 1983. She began employment with LSC as a staff attorney in January 1987 and was assigned to the Westbury office, where she handled cases in a variety of areas including landlord-tenant, wills, trusts, probate, Social Security, patient abuse, and consumer law.

Shortly after Hawkins was hired, Joseph Lipofsky became LSC's Legal Director. Lipofsky appointed Hamilton to be Managing Attorney for LSC's Long Island offices and assigned him to the Westbury office, where he became Hawkins's direct supervisor. In the spring of 1990, the Westbury office, including both Hamilton and Hawkins, was relocated to East Meadow, Long Island.

Performance evaluations of staff attorneys at LSC took the form of "file reviews," in which a supervising attorney would examine case files in an attempt to monitor and evaluate the staff attorney's handling of her cases. Hamilton first conducted file reviews of Hawkins's work in September 1987 and July 1990. After the 1987 review, he found Hawkins's work to be "adequate" and noted some areas of improvement; but he also identified several performance deficiencies, including failure to maintain organized files and adequate status notes, problems completing work with reasonable dispatch, and difficulty drafting certain documents. Hawkins concurred with this review and believed that it was an "adequate assessment of [her] performance." (Trial Transcript ("Tr.") 48.) Hamilton's report of his 1990 review of Hawkins's files primarily commented on individual cases, but it concluded that many of Hawkins's cases were quite old and required immediate attention.

B. The Events of 1991: Failure To Promote

In early 1991, LSC was planning to close its New York City and Lawrence offices and consolidate those operations in an office to be opened in Queens, New York. In late January or early February, Lipofsky and Hamilton met with Hawkins and informed her that a Senior Attorney position would be opening at the planned Queens office and that, because of her seniority, Hawkins would have the opportunity to be considered for that position. Hawkins did not express interest in the position during that meeting or in the months that followed. At trial, Lipofsky testified that he did not consider Hawkins for the Queens position because, despite their discussion, Hawkins never expressed any interest. Hawkins testified that she had, in fact, been interested in the Queens position but could not have expressed interest or submitted her name for the position because she did not know when that office would open and because LSC had no formal application process.

In May 1991, a memorandum was distributed to LSC's employees announcing that the Senior Attorney position in the Queens office, as well as one in the Hauppauge office, had been filled by other LSC staff members. The appointees were white males who had less seniority at LSC than Hawkins, and Hawkins complained to Hamilton about not having been considered for the positions. Hamilton told Hawkins that she had not been considered because she had never advised anyone of her interest. During that conversation, Hamilton informed Hawkins that the Senior Attorney at LSC's East Meadow office was planning to resign, and he invited Hawkins to apply for that position. A memorandum announcing that opening was subsequently circulated to all of LSC's attorneys in New York, and the position was advertised in the New York Law Journal. Hawkins notified Hamilton and Lipofsky that she wished to be considered for the East Meadow position.

During the following week, Hawkins took a previously scheduled vacation, and while she was away, Hamilton conducted a file review of her open cases. His conclusions were summarized in a memorandum dated June 4, 1991. Although Hamilton noted that much of Hawkins's work was "of acceptable quality," his review was highly critical of many aspects of her performance. (Memorandum from Hamilton to Hawkins, dated June 4, 1991, at 2.) Hamilton stated, inter alia, that an unacceptably large number of case files (13) could not be located in Hawkins's file cabinet, in her office, or in her secretary's work area; that many of the files that could be found "exhibit[ed] insufficient file notes, and frighteningly large gaps of time in which no work was done"; and that the "tendency to let files sit, without adequate 'tickling', appears to have resulted in at least one 'statute of limitation's [sic ]' problem! Regardless of whether a statute of limitations was missed, the potential for same is so serious as to be inexcusable." (Id. at 1.) Hamilton concluded that "[t]he major problem is your failure to follow up on many of your cases." (Id. at 2.) He also criticized Hawkins for arriving late for work and for not returning to the office after court appearances, commenting that this pattern was "unacceptable in general and especially so when you have a caseload that is not being processed." (Id.) The memorandum concluded with specific questions and comments on each of several dozen cases, as well as a list of the 13 cases in which the files had not been found.

In June 1991, Hawkins met with Lipofsky and Hamilton to discuss the review and stated that she disagreed with Hamilton's June 4 memorandum and intended to prepare a response. In July 1991, Hawkins again met with Lipofsky, who told her that, based on the recent file review, he did not think she was ready for a Senior Attorney position. Shortly thereafter, Hawkins responded to the criticisms of the file review in a July memorandum, giving descriptions of the status of all but two of the cases questioned by Hamilton.

In August 1991, Hamilton informed Hawkins that there was no longer an opening for a Senior Attorney in East Meadow because the responsibilities associated with that position had been assigned to the LSC Senior Attorney in Hauppauge. Lipofsky testified that the decision to consolidate the East Meadow and Hauppauge Senior Attorney positions was motivated by financial difficulties experienced by LSC in 1991. The trustees overseeing LSC had instructed Lipofsky to reduce costs, and the consolidation of the two Senior Attorney positions saved some $50,000 to $60,000. Lipofsky testified that he did not consider Hawkins's race or gender in denying her a promotion.

In September 1991, Hawkins filed a charge of discrimination with the New York State Division of Human Rights ("DHR") and the EEOC, asserting that LSC had denied her promotions on the basis of her race and gender, in violation...