O'Sullivan v. City of Chicago

• Decision Date: 18 April 2007
• Docket Number: No. 01 C 9856.,01 C 9856.
• Citation: 484 F.Supp.2d 829
• Parties: Diane O'SULLIVAN, Janice Roche, and Nancy Lipman, Plaintiffs, v. CITY OF CHICAGO, Defendant.
• Court: U.S. District Court — Northern District of Illinois

484 F.Supp.2d 829

Diane O'SULLIVAN, Janice Roche, and Nancy Lipman, Plaintiffs, v. CITY OF CHICAGO, Defendant.

No. 01 C 9856.

United States District Court, N.D. Illinois, Eastern Division.

April 18, 2007.

COPYRIGHT MATERIAL OMITTED

Elisabeth Schoenberger, Law Offices of Elisabeth Shoenberger, Elizabeth Hubbard, Brian Dean Ekstrom, John C. O'Connor, Hubbard & O'Connor, Ltd., Chicago, IL, for Plaintiffs.

OPINION RE: PETITION FOR AWARD OF ATTORNEY'S FEES PURSUANT TO 42 U.S.C. § 1988

JEFFREY COLE, United States Magistrate Judge.

I. BACKGROUND

Plaintiffs, Diane O'Sullivan, Janice Roche, and Nancy Lipman, are Caucasian females, employed by the City of Chicago Police Department. O'Sullivan and Lipman currently hold the rank of Lieutenant, while Roche holds the rank of Sergeant. The Plaintiffs all complained of racial discrimination and retaliation on the part of one of their superiors, Commander Marienne Perry, an African-American female. In December of 2001, Plaintiffs, represented by attorney Elisabeth Shoenberger,¹ filed a complaint against the City of Chicago. The complaint also named as defendants the City of Chicago Police Department (the Police Department) and Commander Perry, in both her official and individual capacity. The complaint first alleged that Perry had discriminated against Roche and other employees of the Police Department on the basis of race. Specifically, Plaintiffs alleged that Perry had "systematically removed Caucasian officers and replaced them with African-American officers," and that Roche had personally been subject to this treatment. (Complaint at ¶¶ 10-14.) The complaint further stated that all three Plaintiffs had lodged a formal grievance with the Police Department regarding that discrimination, and had been subject to retaliation for doing so. (Complaint at ¶¶ 15-20.) Allegedly, Perry and other officers began filing unfounded performance-related complaints ("Complaint Registers" or "CRs") against all three Plaintiffs, in addition to engaging in other forms of retaliatory action. (Complaint at ¶¶ 15-16.) The complaint, fairly read, stated five separate claims against the City, the Police Department, and Perry (the Joint Defendants), including (1) a violation of 42 U.S.C. § 1983; (2) a violation of 42 U.S.C. § 1981; (3) a violation of the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101 et seq.; (4) discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.2000e; and (5) retaliation in violation of Title VII. (Complaint at ¶¶ 25-29.) It is important to note, however, that although Plaintiffs pleaded a variety of legal claims, all relied upon the same two sets of facts — the discriminatory and retaliatory actions by Perry. The complaint also requested various forms of relief, including a declaratory judgment; an injunction; an order directing that the effects of the alleged practices be eliminated; compensatory damages for lost wages and other lost benefits; compensation for emotional and psychological damage; punitive damages; and costs, including reasonable attorney's fees. (Complaint at ¶¶ A-I.)

In February of 2002, the Joint Defendants filed a motion to dismiss several of the Plaintiffs' claims, including the IHRA claim, the Title VII claims against Perry individually, the § 1981 and § 1983 claims against Perry in her official capacity, all claims against the Police Department, and the claim for punitive damages against the City.² In April of 2002, Judge Elaine Bucklo granted the motion as unopposed. Following discovery, the Plaintiffs § 1981 and § 1983 claims against the City were disposed of by summary judgment. Plaintiffs' remaining claims, for retaliation and discrimination in violation of Title VII, were tried to a jury from April 10, 2006, through April 24, 2006.

The jury found for the City on the Plaintiffs' Title VII discrimination claim, but found for the Plaintiffs on their Title VII retaliation claim. As a result of the retaliation verdict, the jury awarded the Plaintiffs compensatory damages in the amounts of $250,000.00 for Lipman, $50,000.00 for O'Sullivan, and $25,000.00 for Roche, for a total of $325,000.00. See O'Sullivan v. City of Chicago, 478 F.Supp.2d 1034 (N.D.Ill.2007); O'Sullivan v. City of Chicago, 2007 WL 671040 (N.D.Ill.2007); O'Sullivan v. City of Chicago, 474 F.Supp.2d 971 (N.D.Ill.2007). The City was also enjoined from further retaliation. See O'Sullivan v. City of Chicago, 2007 WL 951941 (N.D.Ill.2007).

The plaintiffs have petitioned for an award of attorney's fees for Ms. Shoenberger and Hubbard & O'Connor, Ltd., totaling $737, 147, pursuant to 42 U.S.C. § 1988. This includes fees and costs as reflected in the petition and supplement thereto (filed 10/24/2006). Defendants object, on various grounds, to several portions of the fee request.

II. LAW APPLICABLE TO PETITION FOR ATTORNEY'S FEES UNDER § 1988

The Civil Rights Attorney's Fees Act of 1976, 42 U.S.C. § 1988, authorizes district courts to award reasonable attorney's fees to "prevailing parties" in civil rights litigation. Status as a prevailing party is a threshold determination in awarding fees under § 1988. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The relevant inquiry is whether the Plaintiff "has succeeded on `any significant issue in litigation which achieved some of the benefit the parties sought in bringing suit.'" Tex. State Teachers Ass'n v. Garland Ind. Sch. Dist., 489 U.S. 782, 791-92, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). Here, there is no dispute that Plaintiffs are a prevailing party for purposes of § 1988, and the Defendant concedes as much.³

Once one has obtained prevailing party status under § 1988, a district court may award reasonable attorney's fees. Hensley teaches that the "most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). This calculation results in the "lodestar" amount, which may be adjusted upward or downward based on other considerations unique to the specific case. These include the factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), which was cited with approval in the legislative history of § 1988 and Hensley, itself. 461 U.S. at 429-30 & nn. 3-4, 103 S.Ct. 1933.⁴

A. The Lodestar Amount

Hensley requires that analysis begins with the calculation of the "lodestar" amount, which is determined by multiplying "the number of hours reasonably expended" by a "reasonable hourly rate." 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The burden is on the party seeking the fee award to "submit evidence supporting the hours worked and the rates claimed." Id. "Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Id. In calculating the lodestar amount, a court must first "eliminate all hours claimed that are either not `reasonably expended' or inadequately explained." Spanish Action Committee of Chicago v. City of Chicago, 811 F.2d 1129, 1138 (7th Cir.1987). Only the remaining hours should enter the lodestar calculation. The "reasonable hourly rate" is "to be based on market rates for services rendered." Missouri v. Jenkins, 491 U.S. 274, 283, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). The court must seek to determine "the rate that lawyers of similar ability and experience in their community normally charge their paying clients for the type of work in question." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th Cir.1999). In the Seventh Circuit, "[t]he attorney's actual billing rate for comparable work is `presumptively appropriate' to use as the market rate." People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir.1996).

The fee applicant must "produce satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).

When the applicant has established that his "claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee" to be awarded. Id. at 897, 104 S.Ct. 1541. At that point, "the burden shifts to the defendant to demonstrate why a lower rate should be awarded." Spegon v. The Catholic Bishop of Chicago, 175 F.3d 544, 554-55 (7th Cir.1999). Fees have been requested for four attorneys who worked on the Plaintiffs' case: Elisabeth Shoenberger, Elizabeth Hubbard, John O'Connor, and Brian Ekstrom, the latter three of whom are with the firm of Hubbard & O'Connor, Ltd. The lodestar amount is calculated for each below.

1. Elisabeth Shoenberger's Lodestar Amount

Ms. Shoenberger requests an hourly rate of $335.00. (Petition at 16.) In support of this rate, Ms. Shoenberger has submitted her own affidavit, along with those of Aaron B. Maduff and Michael Ponticelli, both employment law attorneys in the Chicago area. (Petition at Exhibit H & I.) These affidavits attest to Ms. Shoenberger's qualifications and the reasonableness of the rate she has requested. While not objecting to that rate, the City does object to the number of hours claimed by Ms. Shoenberger. Ms. Shoenberger claims total hours billed on this case of 1141.50. The City objects to over seventy entries in Ms. Shoenberger's billing records on the grounds that they are not explained in sufficient detail. The entries identified by the City as "vague" include seven hours spent on "[r]eview of documents tendered by Roche for production request," and eight hours spent on "[r]eview of discovery documents tendered by the city." (Objections at 14.) Other offending items include "[w]ork on response to Roche interrogatories" and "[i]ntegrating...