Martino v. Massachusetts Bay Transp. Authority

• Decision Date: 22 October 2002
• Docket Number: No. CIV.A. 01-10198-WGY.,CIV.A. 01-10198-WGY.
• Citation: 230 F.Supp.2d 195
• Parties: John MARTINO, Plaintiff, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 195

230 F.Supp.2d 195

John MARTINO, Plaintiff, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, Defendant.

No. CIV.A. 01-10198-WGY.

United States District Court, D. Massachusetts.

October 22, 2002.

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Mitchell J. Notis, Annenberg & Levine, LLC, Brookline, MA, for Plaintiff.

Walter B. Prince, Laurie F. Rubin, Prince, Lobel, Glovsky & Tye LLP, Daniel S. Tarlow, Prince, Lobel, Glovsky & Tye, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

I. INTRODUCTION

On June 25, 2002, the plaintiff John Martino ("Martino") won a jury verdict of $50,000 against his employer, the Massachusetts Bay Transportation Authority ("MBTA"). The jury found that the MBTA had, in violation of federal and state law, illegally retaliated against Martino in response to his filing a claim against the MBTA with the Massachusetts Commission Against Discrimination ("MCAD").¹

Following his successful jury verdict, Martino has applied to this Court for an award of attorney's fees pursuant to the fee-shifting provisions of Title VII of the Civil Rights Act and Massachusetts General Laws Chapter 151B, the statutes under which he prevailed. The fee-shifting provision of Title VII, 42 U.S.C. § 2000e-5(k), provides that "In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee (including expert fees) as part of the costs." The analogous Chapter 151B fee-shifting provision provides that a prevailing plaintiff shall be awarded "reasonable attorney's fees and costs unless special circumstances would render such an award unjust." M.G.L. ch. 151B, § 9. The same approach — the lodestar method — is used to calculate attorney's fees under both of these statutes. See infra p. 8.

Pursuant to these statutes, Martino seeks attorney's fees and costs in the amount of at least $121,765.70. He claims an hourly rate of at least $260.00 for the work of his primary attorney, Mitchell Notis ("Notis"), and alleges that Notis is entitled to compensation for 435.9 hours of work on his case, for a total of $113,334.00. Martino further suggests that Notis' proposed hourly rate of $260.00 should be enhanced to reflect the importance of this case and the risk that Notis assumed in accepting the case on a contingent fee basis. Martino seeks $1660.00 in legal fees and costs for Mary Sullivan ("Sullivan"), an attorney who spent 9.4 hours on Martino's case at a requested hourly rate of $175.00, and whose firm incurred $15.00 in messenger fees on his case. He also seeks $300.00 in legal fees for Andrew Kisseloff ("Kisseloff"), an attorney who spent 1.5 hours on Martino's case at a requested hourly rate of $200.00. Finally, Martino seeks costs in the amount of $6471.70.

The defendant MBTA argues that this figure should be significantly reduced. First, the MBTA argues that the appropriate rate for Notis (and Kisseloff) is no more than $185.00 per hour, claiming that Martino has failed to offer sufficient evidence that the prevailing rate is $260.00 per hour for attorneys such as Notis. Second, it argues that the number of hours should be significantly reduced to eliminate time spent on Martino's unsuccessful claims. Third, the MBTA argues that the eight hours which Martino's counsel failed to record contemporaneously should be eliminated. Fourth, it argues that Martino's fee petition should be reduced because the MBTA made a settlement offer — $75,000 — that exceeded the damage award — $50,000 — that Martino ultimately received from the jury. Finally, the MBTA argues that Martino's attorney's fees should be reduced to reflect what they characterize as the "limited success" achieved.

II. BACKGROUND

This action arose out of Captain John Martino's claim that his long-time employer, the MBTA, took adverse employment action against him in retaliation for a series of events that occurred between 1996 and 1998.

Martino originally joined the Police Department of the MBTA in 1979, and subsequently rose through the ranks to become Deputy Chief on the MBTA's command staff in 1990, and Major in 1995. Am. Compl., ¶ 7.² In 1996, Delores Ford-Murphy ("Ford-Murphy"), a captain with the MBTA Police Department, filed a gender discrimination complaint against the MBTA. Id. at ¶ 8. Martino, allegedly contrary to orders and threats by his superiors, gave deposition testimony in Ford-Murphy's case in September 1996. Id. at ¶¶ 9-12. During that same time, Martino became aware of what he believed to be improper purchasing practices under the jurisdiction of then-Chief John O'Donovan ("O'Donovan"). Id. at ¶ 13. He reported his observations regarding these practices to the MBTA, the Massachusetts Inspector General's Office, and the Massachusetts Attorney General's Office. Id.

Martino subsequently sought — and was denied — the position of Superintendent in the summer of 1997. Id. at ¶ 15. Believing that he was denied this promotion because of his deposition testimony in Ford-Murphy's case, as well as his whist-leblowing activities described above, Martino filed a complaint against the MBTA with the MCAD on September 22, 1997. Id. at ¶ 15.

One month later, the MBTA embarked upon a major reorganization that resulted in the appointment of a new Chief, Thomas O'Loughlin ("O'Loughlin"), as well as the reassignment of Martino to his former civil service rank of Captain. Id. at ¶ 16. In response, in January 1998, with the assistance of his then-attorney Sullivan, Martino amended his MCAD complaint to include his October 1997 reassignment and demotion as another alleged act of retaliation, not only for the activities described above, but also for his filing of the MCAD complaint in September 1997. See Exhibit F to Defendant's Second Motion in Limine, Attachment A to Martino's MCAD Complaint [Docket No. 36].

O'Loughlin subsequently made further changes at the MBTA, and assigned now-Captain Martino to be the Commander of "Area B," which included the Orange and Blue Lines. Joint Pre-Trial Memorandum, Part I, ¶ 11. Meanwhile, Sullivan, determining that Martino's case would need to be litigated to a conclusion on a contingency fee basis, referred him to Notis. Sullivan Affidavit, ¶ 6.

In January 1999, O'Loughlin transferred Martino from his position as Commander of Area B to the command of the Detail Unit. Am. Compl., ¶ 18. Martino perceived this as a constructive demotion, given the significantly lesser amount of supervisory responsibility involved in the new position. Id. On January 27, 1999, he amended his MCAD complaint yet again to include this "constructive demotion" as another act of retaliation for both his 1996 activities and his filing of the MCAD charge. See Martino's Amended Charge of Discrimination, ¶¶ 14-15 [Docket No. 36, Exhibit F].

In July 2000, the MCAD dismissed Martino's complaint for lack of probable cause. See Joint Pre-Trial Memorandum, Part I, ¶ 13. Martino, represented by Notis, responded by filing suit against the MBTA in the Massachusetts Superior Court sitting in and for the County of Suffolk. His amended complaint included four counts: 1) a retaliation charge pursuant to M.G.L. ch. 151B; 2) a retaliation charge pursuant to Title VII; 3) a deprivation of rights charge pursuant to 42 U.S.C. § 1983, and 4) a common law "whistleblower" charge that the MBTA had retaliated against Martino for reporting Chief O'Donovan's improper practices. Am. Compl. ¶¶ 24-31. On February 6, 2001, the MBTA removed the action to this Court. Shortly thereafter, the MBTA moved for judgment on the pleadings; on May 31, 2001, Martino's whistleblower claim was dismissed by the Court, and Martino voluntarily withdrew his section 1983 claim. Thus, only counts one and two — Martino's charges of retaliation pursuant to Chapter 151B and Title VII — proceeded to jury trial. By agreement, none of the evidence relating to Martino's whistleblower claim was presented to the jury. See Defendant's Second Motion in Limine, ¶ 5 [Docket No. 36]; Plaintiff's Opposition, ¶ 5 [Docket No. 38].

At trial, Martino identified three alleged incidents of retaliation: 1) the MBTA's denial of his application to become superintendent in July 1997; 2) his reassignment and demotion to the position of Captain in October 1997; and 3) his reassignment or demotion to the Detail Unit in January 1999. Notis served as Martino's primary counsel throughout the trial, and handled all of the work on Martino's case himself, with the exception of the 1.5 hours of assistance he received from Kisseloff in June 2002.

On June 25, 2002, the jury returned a verdict of $50,000 for Martino. The jury found that the MBTA had not retaliated against Martino because of his deposition testimony in the Ford-Murphy lawsuit, but that it had retaliated against Martino because he filed an MCAD complaint alleging such retaliation. This indicates the jury's conclusion that the denial of Martino's application to become superintendent (which occurred before Martino filed his initial MCAD complaint in September 1997) was not retaliatory, but that one or both of his subsequent reassignments (which occurred after Martino filed his MCAD complaint) were in fact motivated by retaliation.

III. DISCUSSION

There is clear consensus that the lodestar approach, which computes attorney's fees by multiplying the number of hours reasonably spent on a case by a reasonable hourly rate, is the appropriate method of determining attorney's fees under the fee-shifting provisions applicable in this case. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 433 and n. 7, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (endorsing the lodestar approach as providing "the most useful starting point" in setting attorney's fees in all cases where Congress has authorized a fee award to a "prevailing party"), Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (emphasizing that once a fee applicant has shown that the claimed rate...