O'Rourke v. City of Providence, Civ.A. 95-343-L.

• Decision Date: 07 December 1999
• Docket Number: No. Civ.A. 95-343-L.,Civ.A. 95-343-L.
• Parties: Julia M. O'ROURKE, Plaintiff, v. CITY OF PROVIDENCE; R. Michael Dimascolo; Manuel Costa; Alfred Bertoncini; and David Cionfolo, Defendants.
• Court: U.S. District Court — District of Rhode Island

77 F.Supp.2d 258

Julia M. O'ROURKE, Plaintiff, v. CITY OF PROVIDENCE; R. Michael Dimascolo; Manuel Costa; Alfred Bertoncini; and David Cionfolo, Defendants.

No. Civ.A. 95-343-L.

United States District Court, D. Rhode Island.

December 7, 1999.

COPYRIGHT MATERIAL OMITTED

Gerald C. DeMaria, Higgins, Cavanagh & Cooney, Providence, RI, Patricia E. Andrews, Providence, RI, for plaintiff.

Kevin F. McHugh, City of Providence Law Department, Providence, RI, Edward C. Roy, Jr., Roy & Cook, Providence, RI, for defendants.

DECISION AND ORDER

LAGUEUX, Chief Judge.

This matter is before the Court on plaintiff's motion for attorneys' fees and costs pursuant to 42 U.S.C. § 2000e-5(k). Plaintiff requests $221,285 in attorneys' fees and $26,696.18 in costs for the two trials held in this case. Defendant objects on various grounds to portions of the motion and, thus, requests a reduction in the award of fees and costs.

This matter was initially referred to Magistrate Judge Robert W. Lovegreen pursuant to 28 U.S.C. § 636(b)(1)(B). On April 12, 1999, Judge Lovegreen issued a Report and Recommendation, concluding that an award of $90,790 in attorneys' fees and $16,231.30 in costs should be ordered. Both parties have filed timely objections to the Report and Recommendation. See 28 U.S.C. § 636(b)(1)(C) (1994). After a de novo review, this Court awards $99,685 in attorneys' fees and $10,214.50 in costs.

I. Background

Plaintiff Julia M. O'Rourke became a firefighter with the City of Providence in 1992 and, on June 30, 1995, filed a complaint in this Court seeking damages for a variety of claims involving sexual discrimination. Initially, she was represented by an attorney who was subsequently suspended from the practice of law in the state and federal courts in Rhode Island. In September 1996, Attorney Patricia E. Andrews entered her appearance for plaintiff. Her first task was to amend the overly verbose and much-muddled complaint. The Amended Complaint filed by Attorney Andrews contained five counts against the City of Providence and six individual defendants — Counts I and II alleged a hostile work environment and sought damages pursuant to 42 U.S.C. § 2000e (Title VII) and R.I.Gen.Laws § 28-5-24.1 (Rhode Island Fair Employment Practices Act); Counts III and IV alleged disparate treatment and sought damages under the same two statutes; and Count V alleged a violation of plaintiff's equal protection rights and sought damages pursuant to 42 U.S.C. § 1983. The alleged discrimination occurred while plaintiff was assigned to Engine 13. Attorney Andrews then proceeded to complete discovery, which involved taking many depositions.

Just prior to the jury impanelment date of June 10, 1997, Attorney Andrews determined that the issues in the case were complex and she believed she needed assistance from someone with more trial experience than she had. Consequently, she obtained the services of Attorney Gerald C. DeMaria to try the case. Two individual defendants were dropped from the case before a jury was impaneled on June 10, 1997. Trial commenced on July 14, 1997. Prior to trial, defendants (the City of Providence and the four individuals remaining in the case) moved in limine to exclude any evidence of alleged sexual harassment or discrimination occurring before September 13, 1994, which was 300 days prior to plaintiff's filing of the discrimination charge at the Rhode Island Human Rights Commission on July 10, 1995, because such evidence would cover a period beyond the federal statute of limitations and would be highly prejudicial in violation of Federal Rule of Evidence 403. Plaintiff's counsel (Andrews) argued that the evidence was admissible because it would establish a "continuing violation" and, thus, should be excepted from the statute of limitations and beyond the reach of Rule 403 because of its relevance. It was also asserted that the evidence was relevant to plaintiff's § 1983 claim against the City and the individual defendants, which cause of action has a three-year statute of limitations. Based on those representations, this Court denied the motion in limine on the statute of limitations grounds and reserved decision on the Rule 403 issue. Thus, during plaintiff's direct case at trial, the jury heard evidence about events that occurred commencing with her entrance into the Firefighters' Training Academy in March 1992. This evidence concerned specific incidents that occurred during the period plaintiff was attending the Training Academy, during the period she was assigned to Fire Chief Bertoncini's office and during the period she was assigned to Engine 5, including occurrences at the Wayland Manor fire, which was a main feature of plaintiff's case. She produced much evidence to rationalize her conduct at that fire (leaving her post without permission and not promptly returning) and the resulting criticism from her superiors which resulted in her transfer to Engine 13. She attributed all this to sex discrimination.

The trial lasted 15 trial days. At the close of plaintiff's case, all defendants moved for judgment as a matter of law pursuant to Fed.R.Civ.P. 50. This Court granted the motion as to the individual defendants on all Counts and as to the City on Counts III, IV and V. Thus, only Counts I and II against the City remained and those Counts only implicated the events that occurred at Engine 13 after her transfer. Prior to the start of the City's case, this Court ordered that any evidence regarding events occurring prior to September 1994 not related to plaintiff's tenure at Engine 13 be stricken and instructed the jury to disregard said evidence because it was irrelevant and prejudicial. The defense attempted but was not permitted to rebut that stricken evidence. The jury subsequently awarded plaintiff $275,000 in damages on Counts I and II.

Defendant City then made a motion for a new trial. This Court granted that motion because of the erroneous admission of the irrelevant and highly prejudicial evidence. This Court stated: "So looking back at this matter with 20/20 hindsight, I should have granted the Motion in Limine, and I should have restricted the testimony in this trial very substantially. Plaintiff's lawyers led me into grievous error by arguing that that evidence was admissible." Tr., October 28, 1997, at 22-23. The Court also concluded that its cautionary instruction to the jury was ineffective judging by the size of the verdict. In short, the Court concluded that fairness dictated that the City be granted a new trial.

The second trial commenced in April 1998 and was much shorter than the first trial because all the prejudicial ancient history was excluded. It concluded with a jury award of $200,000 to plaintiff against the City. Although the verdict was on the high side, the Court allowed it to stand because the second trial was uncontaminated by tainted evidence.

Plaintiff now seeks attorneys' fees and costs for both trials. This Court referred the matter to Magistrate Judge Lovegreen, who recommended an award of $90,790 in attorneys' fees and $16,231.30 in costs. The main reason for the discrepancy between plaintiff's request and this recommendation is Judge Lovegreen's conclusion that plaintiff should not be compensated for time spent by her attorneys on the first trial. Plaintiff has objected to this conclusion and others, while defendant City has objected on various grounds to other parts of the Magistrate Judge's Report and Recommendation.

After a thorough de novo review, this Court concludes that Judge Lovegreen's analysis, particularly his summary of the applicable law, is comprehensive and generally sound. Therefore, this Court draws heavily upon the Report and Recommendation in rendering this opinion. This Court writes only to further explicate its reasoning for denying counsel fees for the first trial, to outline its approach to allowing fees for two attorneys at the second trial and to clarify the allowance or disallowance of some fee and cost requests about which it disagrees in minor degree with the Magistrate Judge.

II. Legal Standards

A. Standard of Review

A district court may refer a motion for attorneys' fees to a magistrate judge for disposition. See Fed.R.Civ.P. 54(d)(2)(D). If a timely objection is filed to the magistrate judge's determination, the district court reviews the matter de novo because the Federal Rules of Civil Procedure require that the motion for attorneys' fees be treated "under Rule 72(b) as if it were a dispositive pretrial matter." Id. See also Fed.R.Civ.P. 72(b); R.A. v. Department of Children, Youth and Families, 18 F.Supp.2d 157, 159 (D.R.I.1998).

In making a de novo determination, the district court "may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b). See also 28 U.S.C. § 636(b)(1)(C) (1994). In reviewing a magistrate judge's recommendations, the district court must actually review and weigh the evidence presented to the magistrate judge, and not merely rely on the magistrate judge's report and recommendation. See U.S. v. Raddatz, 447 U.S. 667, 675, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Gioiosa v. U.S., 684 F.2d 176, 178 (1st Cir.1982).

B. The Award of Attorneys' Fees

Plaintiff brought Count I of her suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 42 U.S.C. § 2000e-5(k) provides that "[i]n any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs[.]" 42 U.S.C. § 2000e-5(k) (1994).

To recover attorneys' fees under this provision, a plaintiff must be a "prevailing party." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).¹ "`[P]laintiffs may be considered `prevailing parties' for attorney's...