MEMORANDUM AND ORDER RE: MOTION FOR JUDGMENT AS A MATTER OF LAW (DOCKET ENTRY #108); ATTORNEY WENDY A. KAPLAN'S PETITION FOR ATTORNEYS' FEES AND COSTS (DOCKET ENTRY # 110); BILL OF COSTS (DOCKET ENTRY # 113)
On May 9, 2002, after hearing seven days of testimony anddeliberating for two days, the jury in this wrongful dischargeand sexual harassment case rendered a verdict finding defendantCity of Quincy ("the City of Quincy" or "the city") liable under42 U.S.C. § 2000(e) et seq. ("Title VII") and MassachusettsGeneral Laws chapter 151B ("chapter 151B") for the sexualharassment plaintiff Kathleen Bandera ("plaintiff" or "Bandera")experienced while employed as the Executive Director of theCommunity Oriented Policing and Problem Solving Commission ("theCommission") of the Quincy Police Department ("the policedepartment") from September 1997 to June 1998. The jury did notfind the City of Quincy liable for the wrongful discharge claimsunder Title VII or chapter 151B or the hostile work environmentclaim under 42 U.S.C. § 1983 ("section 1983"). Nor did the juryfind defendants James Sheets ("Mayor Sheets" or "the Mayor"),Mayor for the City of Quincy from 1990 to 2002, and Thomas Frane("Frane," "Chief Frane" or "the Chief"), Police Chief of theCity of Quincy during plaintiffs September 1997 to June 1998tenure as Executive Director for the Commission, liable forwrongful discharge or a hostile work environment under chapter151B and section 1983.
As compensatory damages, plaintiff limited her claims to backpay and front pay.1 The jury declined to award plaintiffeither back or front pay. The jury did award plaintiff the sumof $135,000 in punitive damages against the City of Quincy underchapter 151B.2
On May 15, 2002, the City of Quincy, Frane and Sheets(collectively: "defendants") filed a timely motion for judgmentas a matter of law under Fed.R.Civ.P. 50(b) ("Rule 50(b)") and atimely motion to amend the judgment under Fed.R.Civ.P. 59(e)("Rule 59(e)"). (Docket Entry # 108). As a separate matter,plaintiff's bill of costs and response to a Procedural Orderseeks reimbursement for costs under Fed.R.Civ.P. ("Rule 54(d)")including attorney's fees in the amount of $5,716.87. (DocketEntry ## 113 & 124). In addition, nonparty Attorney Wendy A.Kaplan ("Attorney Kaplan"), plaintiffs former counsel, filed apetition for attorney's fees and costs in the respective amountsof $58,635 and $5,815.86. (Docket Entry # 110). With fewexceptions, plaintiff opposes her former counsel's petition.(Docket Entry ## 111 & 116). Defendants likewise oppose AttorneyKaplan's petition. (Docket Entry # 117).
I. MOTION FOR JUDGMENT AS A MATTER OF LAW (DOCKET ENTRY #108)
In the first and second paragraphs of their five paragraphmotion, defendants challenge the $135,000 award of punitivedamages on the basis that it is contrary to the evidence,unsupportable and excessive as a matter of law. (Docket Entry #108, ¶¶ 1 & 2). Defendants raise three additional challenges tothe judgment, two of which are based on the incorrect premisethat the jury issued the punitive damages award under Title VII.This court addresses these additional grounds for the motionbefore turning to the insufficient evidence challenge.
First, in the third paragraph, defendants assert that the juryincorrectly awarded punitive damages under Title VII. They basethis assumption on the phraseology of the punitive damagesinstruction which referred to "plaintiffs federally protectedrights." (Docket Entry # 108, ¶ 3). Accordingly, defendants seekto overturn the jury's Title VII-based punitive damages awardbecause: (1) a punitive damages award under Title VII cannotstand without an accompanying compensatory or back pay award;and (2) a plaintiff cannot recover punitive damages from agovernment, government agency or political subdivision. (DocketEntry # 108, ¶¶ 3 & 4).
First and foremost, the jury did not award plaintiff punitivedamages against the City of Quincy under Title VII. Rather, thejury made the award under chapter 151B. Defendants neverthelessreason that the jury must have awarded the damages under TitleVII because of the instruction's reference to "federallyprotected rights."
Like the plaintiff in Dichner v. Liberty Travel,141 F.3d 24, 29 & 33-34 (1st Cir. 1998) (upholding punitive damagesinstruction that used "formulation drawn strictly from federalprecedents" which did not distinguish between federal section1983 standard and state chapter 151B standard), defendants didnot object to the phraseology of the punitive damagesinstruction before the jury retired. Nor did they propose anyparticular language for the punitive damages instruction.3Rather, they limited their objection to the failure of theevidence to support a punitive damages award and therefore aninstruction.
In the first paragraph of the punitive damages instruction,this court explained to the jury the various bases under whichthey could issue a punitive damages award. Those bases wereeither under section 1983 against Frane and/or Sheets or underchapter 151B against the City of Quincy, Frane and/or Sheets.The instruction nowhere referred to Title VII. The specialverdict question explicitly asked the jury to refer back to therequirements set forth in the instruction on punitive damages.Accordingly, the only basis for the punitive damages award wasunder section 1983 or chapter 151B.
With respect to section 1983, the punitive damages instructionallowed the jury to award punitive damages against theindividual defendants "if"4 the jury found them liableunder section 1983. The jury did not find the individualdefendants liable under section 1983. Hence, presuming the juryfollowed the instructions, they did not award punitive damagesagainst the individual defendants under section 1983. Thepunitive damages instruction also advised the jury that theycould not award punitive damages under section 1983 against theCity of Quincy because section 1983 did not allow plaintiff torecover punitive damages against a municipality. Accordingly,the jury did not award punitive damages against any defendantunder section 1983.
With respect to chapter 151B, the punitive damages instructioninformed the jury that they could impose punitive damagesagainst the individual defendants "in the event "5 thejury found them liable under chapter 151B. Again, the jury didnot find the individual defendants liable under chapter 151B.Presuming the jury followed the instructions, they did not awardpunitive damages against the individual defendants under chapter151B. The punitive damages instruction expressly advised thejury that chapter 151B "allow[ed] [them] to award punitivedamages against the City of Quincy," the only remaining basisfor such liability. Consequently, contrary to defendants'argument, the jury awardedpunitive damages against the city under chapter 151B.
Chapter 151B unquestionably allows the jury to award punitivedamages even where, as here, the jury found that the plaintiffwas not entitled to compensatory damages.6 Bain v. Cityof Springfield, 424 Mass. 758, 678 N.E.2d 155, 161-162 (1997).Chapter 151B also allows an award of punitive damages against amunicipality such as a city.7 See Bain v. City ofSpringfield, 678 N.E.2d at 160 n. 3. In particular, chapter151B waives a municipality's sovereign immunity from punitivedamages because the statute "explicitly defines person andemployer to include municipalities and explicitly authorizespunitive damages without distinguishing among persons oremployers subject to liability." Bain v. City of Springfield,678 N.E.2d at 160 n. 3.
Finally, if the instruction was as confusing to defendants asthey now contend, they could and should have raised the issuebefore the jury retired to deliberate. After this courtconcluded giving the instructions and called counsel to thesidebar, defendants did not voice an objection. The simpleinsertion of a sentence that the jury could not award punitivedamages under Title VII would have obviated any allegedconfusion. See Gray v. Genlyte Group, Inc., 289 F.3d 128, 137(1st Cir. 2002) (noting that the "very ease with which anyconfusion could have been resolved . . . underscores the needfor counsel to make a distinct objection after theinstructions").
Defendants additionally argue, assuming that the award wasbased under chapter 151B, that the language of the punitivedamages instruction, to wit, "whether to award punitive damagesand the amount, if any, of such damages is a matter which liesentirely within your sound discretion," incorrectly failed togive the jury sufficient guidance. (Docket Entry # 108, ¶ 5).Under Massachusetts law, it is true that an "award of punitivedamages cannot be left to the unguided discretion of the jury."Bain v. City of Springfield 678 N.E.2d at 162. Again, however,defendants did not object to the language or substance of theinstruction. Rather, they objected to the submission of punitivedamages to the jury for lack of evidence.
The punitive damages instruction gave the jury the standardunder federal anti-discrimination law which allows the jury "toassess such damages `when the defendant's conduct is shown to bemotivated by evil motive or intent, or when it involves recklessor callous indifference to the federally protected rights ofothers.'" Dichner v. Liberty Travel, 141 F.3d at 2829 & 33-34(quoting Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75L.Ed.2d 632 (1983)). Tracking this language, the punitivedamages instruction cautioned the jury that:
Punitive damages, however, are only available upon a showing of the requisite intent. Thus, in order to award punitive damages you must find that the conduct of the defendant was motivated by an evil motive or intent or involved a reckless or callous indifference to the plaintiff's federally protected rights.
Punitive damages are designed for the purpose of punishing a defendant for wilful or malicious conduct as well as for deterring others from engaging in similar behavior. Whether to award punitive damages and the amount, if any, of such damages is a matter which lies entirely within your sound discretion.
Viewing the instruction as a whole, it did not leave the jurywithout guidance. Instead, it allowed the jury to award punitivedamages upon a showing of the requisite intent which this courtdefined as, inter alia, "an evil motive or intent" with thecaveat that punitive damages are designed to punish a defendantor deter others from engaging in similar conduct.8 Suchlanguage adequately conveys a standard to the jury upon which tobase their award and, contrary to defendants' contention, doesnot leave the matter to their unguided discretion.9 SeeDichner v. Liberty Travel, 141 F.3d at 33 (quoting Dartt v.Browning-Ferris Industries, 427 Mass. 1, 691 N.E.2d 526,536-537 (1998); Bain v. City of Springfield, 678 N.E.2d at161-162, approving similar standard).
Having addressed these arguments, this court turns to whetherthe $135,000 award of punitive damages was contrary to theevidence or excessive.
A. The Commission
At the instigation of Attorney Daniel Raymondi ("Raymondi"),then a member of the Quincy City Council representing a low tomoderate income area in the city, and with the help of Bandera,on June 16, 1997, the City Council for the City of Quincy ("thecity council") enacted an ordinance designed to foster thedevelopment of community policing in Quincy. Community policingencourages the community to maintain order and keepneighborhoods safe. By involving members of the civiliancommunity to identify problem areas in the community and shapesolutions, community policing recognizes that it is the membersof the community who, as much as police officers, areresponsible for safeguarding the welfare of their community.
The ordinance declared the creation of the commissionconsisting of 19 public and private individuals. Permanentmembers included the Mayor, the Chief of Police and theSuperintendent for the Quincy public schools as well asrepresentatives from the probation department of the QuincyDistrict Court, the Norfolk County District Attorney's Office, aCommunity Patrol Officer and the President of the Quincy PolicePatrol Officers Union. The purpose of the commission was tobuild a partnership with the police department and assist thedepartment in protecting the community. It was decidedly not apolice review board. In addition to ordaining the creation ofthe commission, the ordinance created the position of theExecutive Director of the Commission with compensationestablished by the Mayor.
Bandera, who was in the process of obtaining her master'sdegree in criminal justice from Northeastern University, becameaware of Raymondi's efforts in the spring of 1977. Aftercontacting Raymondi, who she and her family knew from havingassisted his political campaign[s] in the past, Bandera met withRaymondi. In March and April of 1997 she accompanied Raymondi tocity council meetings and to the Mayor's office to presentinformation relative to the city's need for community policing.She also compiled and presented the Mayor with statisticsreflecting the number and location of youth incidents in thecity and the need for youth programs at particular times duringthe day. Mayor Sheets, one of Bandera's former teachers atQuincy College,11 was impressed with the idea of communitypolicing and in favor of the concept.
B. Bandera's Tenure as Executive Director
After the city council issued the ordinance, Bandera voicedher desire to be involved in the program to Raymondi who advisedher to compile additional statistics and suggested setting up aninformal interview with the Mayor. Thereafter, Bandera, Raymondiand Mayor Sheets met and discussed Bandera's employment. TheMayor had no difficulty with Bandera taking on the position ofExecutive Director of the Commission but he needed the approvalof Frane, who he had not yet officially appointed as Chief ofPolice.12
The Mayor viewed the position as part time at an annual salaryof $30,000 with the prospect of becoming a full time position atthe start of the new fiscal year at an annual salary of$60,000.13 He preferred weaning Bandera into the positionbecause he anticipated resistance both because she was acivilian and because she was a woman who was appointed by theMayor.
Mayor Sheets also wanted the location of Bandera's office inthe police station where she could work side by side with thePolice Chief and his men. Bandera, Raymondi and the Mayordiscussed the issue of Bandera's gender and the Mayor toldBandera that being a woman was not going to be easy in terms ofdealing with the police department. The Mayor additionallyalerted Bandera to "some problems with a Colletta." Raymondi,who did not envision the position as part of the policedepartment, preferred locating the office at City Hall. Banderapreferred having an office at the police station.
Also in the summer of 1997, a second meeting took placebetween the Mayor, Raymondi, Bandera and Frane. Frane sawBandera as an excellent candidate for the position and asked herto meet him inhis office at the police station. When Bandora met Frane at hisoffice, he agreed that he would like to bring Bandera on boardand voiced his approval of the program. At that time, he alsointroduced Bandera to Falco, then a lieutenant in the policedepartment, and Lieutenant Flaherty. Bandera briefly informedFrane and Flaherty about her ideas for the position.
Bandera began her tenure as Executive Director in September1997 after Chief Frane was sworn in as the new police chief.Throughout her tenure, the jury could reasonably infer that shemet with resistance in performing her responsibilities becauseshe was a woman.
One of the first things Bandera did was propose a surveyexamining the existing conditions in the police department suchas morale and how to allocate the new resources for communitypolicing.14 She presented the survey to Chief Frane whoagreed to it. She then approached Falco and Flaherty. Both Falcoand Flaherty told her she could not distribute the survey to thepolice department. When Bandera asked why, Flaherty told her noone would complete the survey because she was a civilian and awoman and "they will hate you."
Flaherty and Falco also told her she could not distribute asurvey without Chief Frane's approval. When Bandera told themshe had the Chiefs approval and showed them the cover memorandumto the survey with their names on it, Flaherty and Falco toldher to remove their names. The next day, Captain Fred Laracy("Captain Laracy") approached Bandera and also told her not todistribute the survey.
Bandera then went into the Chiefs office to advise him of theresistance to the survey. His response was, "Don't waste yourtime bothering with them. They're all a different breed. You'llrealize that soon enough. I warned you that being a female inthis police department was not going to be easy."
In or around the time Bandera first started her job, ChiefFrane formed a Strategic Planning Committee in order todetermine how best to implement community policing. The Chiefdesignated Captain Laracy as the Chairperson and Bandera as theFacilitator. Chief Frane also named a number of other superiorpolice officers to the committee including Officer Robert Hanna("Hanna"). He also ordered the committee to meet on a dailybasis from Monday through Friday for approximately three to fourhours.15 The committee met for approximately eight weeksand eventually came up with a plan for community policing.
At various meetings, Bandera met with resistance and left themeeting[s] upset. She complained to Chief Frane a number oftimes in the fall of 1997. His response to Bandera was to "justtolerate it" and that "they're a weird f______ bunch of men, andthis is the culture."
By the end of October 1997, the committee came up with a planfor Chief Frane to present to the City Council. The planidentified and described the characteristics of particularlocations or sectors of the city in which to develop communitypolicing. It also set criteria for performing the duties of acommunity police officer and incentives for recruitment such assalary increases.
The morning before Chief Frane's presentation, Falco, Flahertyand Captain Laracy met with Chief Frane in his officeto discuss the proposal. Bandera was not included purportedlybecause the Chief did not think it was necessary. When shewalked into the Chiefs office to independently ask him if heneeded any help for the forthcoming City Council meeting, shediscovered the meeting, asked if she could stay and was told "itwas not necessary."
Later in the day, Captain Laracy asked Bandera to accompanyhim and the Chief to the meeting that evening and she agreed.The City Council meeting proved successful and the programreceived an estimated $303,000 in funding.
Shortly thereafter, when Bandera presented Chief Frane with ajob description for her position that she had prepared, he putthe description in a desk drawer and told Bandera just to "laylow" notwithstanding the program's recent funding initiative.
Also in the fall of 1997 and after receiving the fundingapproval from the City Council, a police officer expressed hisfrustrations to Bandera about two houses designated as Section 8housing that received government subsidies and the numeroustelephone calls about youth incidents and disturbances at thelocation. Raymondi voiced similar concerns to Bandera.Legitimately viewing the subject matter as one suited forcommunity policing, Bandera met with a woman at the HousingAuthority who was pleased to meet with her. Bandera then tookthe information she received back to Chief Frane and also toldFalco and the reporting officer, Captain Kelley. She wasinformed, however, "that it was none of her business" and that"it had nothing to do with the community."
In or around November 1997 Bandera received another telephonecall from Raymondi telling her about an act of vigilanteismagainst a sex offender living in the city. During this time, thepolice department was inundated with telephone calls of wheresexual offenders were living. Bandera therefore decided todevise a program to educate the public about sex offenders toallay any false fears and prevent future acts of vigilanteism.She began by contacting a former professor who worked in theMassachusetts Department of Corrections as an assistantcommissioner. He agreed to present a session to improve thepublic's understanding of sex offender registration and fosterthe successful integration of the sex offender upon his releaseinto the community while maintaining safety for the community.Accordingly, Bandera put together a proposal and submitted it toChief Frane. Although she never heard back from Chief Frane,Lieutenant Casey told her to "mind [her] own business." CaptainLaracy also told her to not get "involved with things likethis." When Bandera complained to Chief Frane, he told her notto get involved with the men.
In or around January 1998, Raymondi also questioned Banderaabout why the commission had not been established.16Bandera took the initiative to contact a number of potentialmembers of the commission and also asked Chief Frane why thecommission had not begun. His reply to Bandera was to wait.Bandera then reported back to Raymondi and they agreed to tryand meet with the Mayor. After Bandera's telephone call to theMayor received no response, Raymondi called the Mayor and set upthe meeting.
At the January 13, 1998 meeting,17 the Mayor, Raymondi,Bandera and ChiefFrane discussed Bandera's limited access to Chief Frane,18her exclusion from mootings and her unmet need for clericalhelp. Chief Frane assured her that he would include her in thenext meeting involving all the ranking officers.19 Theyalso discussed the delay in establishing the commission. Banderareiterated that they had funding and that she and prospectivecommittee "members were ready to go."
In January 1998, Chief Frane asked Captain Crowley as opposedto Bandera to put together the goals for the evening patrolunit20 and community policing. Captain Crowley then askedBandera to put together the goals and she readily complied bysending Chief Frane a detailed list of the goals for communitypolicing in 1998.21 Because of completing the list andChief Frane's assurance of including her in the next meeting ofall ranking officers, she logically went to that next meetingwhere each officer was to discuss his/her goals for the upcomingyear. Captain Crowley and then Chief Frane, however, told her toleave. Upset and disappointed, Bandera returned to her office.Shortly thereafter, Falco also told Bandera that she didn'tbelong in the meeting.
Falco, as well as Flaherty, also excluded Bandera from aJanuary 1998 meeting about federal grant funding with arepresentative from the U.S. Department of Justice. AlthoughBandera had spoken with the individual a number of times beforethe meeting about the possibility of obtaining grant funding toinvolve more citizens in the police department, Falco refused tolet her attend the meeting, Flahorty nevertheless came intoBandera's office during the meeting, took Bandera's staffingallocation proposal and maps and then returned to the meeting.Falco additionally excluded Bandera from going to lunch with thegroup after the meeting's conclusion.
Bandera later informed Chief Frane and reiterated her beliefthat she was being treated differently because she was a woman.Frane simply replied, "I told you it wasn't going to be easyaround here. I told you it's tough around here."
Bandera's attempt to reserve time in the training room toallay the negativity regarding community policing also metresistance. Notwithstanding the ability of another male officerto reserve time in the training room, Flaherty denied her theopportunity. When she reported the matter to Chief Frane, hetold Bandera he would speak with Flaherty. When Bandera laterrepeated her concern to Chief Frane, he told her to "forgetabout it," to ignore Flaherty and that was just "the way he is."
In the spring of 1998, the police department held a charitygolf tournament. Bandera asked Falco and Flaherty if she couldplay in their foursome with the Chief. Flaherty told her that hedoesn't play golf with women. After telling Bandera he had tocall his wife, Falco told Bandera that he already had a team.When Bandera asked Falco who the fourthmember was, he told her he "didn't know yet, but he would findsomeone."
Bandera then asked Officer Edgar if there was something shecould do for the tournament.22 Officer Edgar asked her tomake posters and she complied. Bandera also asked Officer Edgarif she could do the videotaping and he agreed.
Two days before the tournament, Bandera walked into Falco'soffice. Falco, Flaherty, Officer Edgar and two other policeofficers, including one from the drug unit, were in the office.Officer Edgar told her that she could not do the videotaping norplay in the golf tournament, but if she wanted, she could be thedog mascot, at which point, everyone except Banderalaughed.23 Bandera told the male group she thought thatwas an insult and that she did not "want to put on a dog costumeinsinuating [she] was a dog." The officer from the drug unitthan told Bandera "that when he picks up women, and before hef______ them, he likes to place a bag over their head so hedoesn't have to look at them." Bandera then left the office. Shedid not report the incident to Chief Frane.
C. Elimination of Bandera's Position
By May 1998 Chief Frane testified that he had come to theconclusion that the commission should be led by a policeofficer. He discussed the matter with three members of theStrategic Planning Committee. According to his testimony, ChiefFrane believed that Hanna would be an appropriate successor toBandera and that, without a collective bargaining agreement inplace, it would be impossible to establish community policing.
In a June 4, 1998 letter to Mayor Sheets, Chief Frane informedthe Mayor that he could not recommend Bandera for reappointmentas Executive Director. He explained his position that the policedepartment itself is more capable of implementing the program.Frane also attached Hanna's resume to the letter and stated hisintention of assigning Hanna to lead the program.
When Mayor Sheets received Frane's letter, he testified thathe "agonized over the decision." He then wrote a letter to theCity Council asking for the removal of the $42,500 funding forthe position from the budget24 and recommending that thecommission be run by a uniformed officer. In a June 9, 1998letter to Bandera, he advised her that:
After consulting with Chief Thomas Frane, I have decided to use a police officer to coordinate community policing activities and I have eliminated from the Quincy Police Department's personal services budget, the position of Community Policing Administrator. Therefore, your position with the City is terminated effective June 30, 1998.
(Ex. 45). The letter also noted that Bandera should use anybenefits such as vacation time that she had before June 30,1998, because "there are no funds available after June 30,1998."25 (Ex. 45). At a mid-June 1998 City Council meetingto confirm the budget, Bandera's position was "voted out."
Bandera used her vacation time during the remainder of themonth. Before her official termination date of June 30, 1998,she went to the office to discover her telephone disconnectedand her computer terminal given to the Chiefs secretary.
After her termination, Bandera attempted to find other,similar or comparable employment. She was offered a similar jobon Martha's Vineyard and worked in the position for three weeks.Bandera, however, then left the job because it was difficult totake care of her daughter while working at such a distance.Bandera was given an opportunity to teach two courses at QuincyCollege and then rejected or not asked to teach a third course.Bandera was also one of three candidates for a position with theCambridge Police Department as a domestic violence liaison.Chief Frane was one of her references. Although he testifiedthat he gave her a "good" recommendation, Bandera did not getthe job.
Lieutenant McDonough testified that Hanna replaced Bandera asthe Executive Director of the Community Commission and the crimeprevention officer. Lieutenant McDonough neverthelessacknowledged that while he has seen Hanna perform duties as acrime prevention officer he has not seen Hanna perform any workin his capacity as executive director.
Hanna explained that he was not given the title of executivedirector in 1998. Nor does he hold the title at the presenttime. Rather, as a crime prevention officer for the past 14years, he typically conducted outreach programs for thecommunity, organized neighborhood watches if needed and acted asa liaison between the neighborhood and the police department. In1998, he did experience a change in his responsibilities but hiscompensation remained the same as every other community policeofficer. For example, he attended and took notes at thecommunity police commission meetings without receivingadditional compensation. As stated by Chief Frane, Bandera'sposition was included in the budget before his appointment andwas never included thereafter.
In sum, the jury could reasonably infer that Frane, with theconcurrence of Mayor Sheets, instigated the elimination of theposition of executive director, although the position remainedin the ordinance. Frane, with Mayor Sheets' approval, took thefunction of the community policing program in house as theprerogative of the police department.
The collective bargaining agreement between the city and thepatrol officers association effective July 1998 included a newprovision regarding the work hours of community police officers.The commission finally began in November 1998 and had its firstformal meeting in December 1998. According to Hanna, thecommission was established as a tool and an aid to the policeofficers that worked in particular community areas. If problemsarose with families, a child in school, landlords or groups ofchildren, the community policing commission provided a resourcefor the complaining party. More specifically, an individualcould bring problems to the attention of the commission duringits monthly meetings and solutions were devised.
D. The Police Department and Other Acts of Gender Discrimination
In 1997 and 1998 the police department employed approximately200 to 205 officers. Only seven or eight of those officers werefemale. Of those seven to eight females, two females, SusanPerch ("Perch") and Nancy Colletta ("Colletta"), fileddiscrimination complaints with the Massachusetts CommissionAgainst Discrimination ("MCAD").
The Mayor was aware of possible gender discrimination againstboth Perch and Colletta. Mayor Sheets was particularly concernedabout the possiblediscrimination against Colletta. Police Chief Frank Mullen("Chief Mullen"), Chief Frane's predecessor, however, told himthere was no substance to the allegations regarding Colletta.Chief Frane also had personal knowledge of the discriminationcomplaints lodged by Colletta and Perch.
Colletta began her employment as a Quincy police officer inApril 1995. She became a detective in April 1999. When she firstbegan to work at the department, a number of the officers wouldnot speak to her. Conversations would stop when she walked intoa room. A Sergeant Cusser repeatedly asked her about her monthlyperiod. Another officer, who she identified by name, told her anextremely off color "joke" in front of a number of other maleofficers about an experience he had with a prostitute in thePhilippines. He repeated the "joke" to Colletta when he saw heron duty at a Quincy restaurant and attempted to tell it a thirdtime, again in front of other officers.
The same male officer twice usurped Colletta's authority, oncewhen she was placing an individual under arrest and again whenshe stopped three individuals at a supermarket for a shoppingincident. Colletta never witnessed another male officer beingsimilarly mistreated.
Colletta's complaints to a number of superior officers aboutoff color male magazines in various police cruisers and in adrawer at the dispatch booth were ignored. One male officerexplicitly confronted her with the magazines and said he had onefor her. Another time, a male sergeant told the male officer onback up duty that he did not want him backing Colletta up on analarm call notwithstanding that an armed robbery had occurred atthe same location a short time earlier. It is the customarypractice to back up officers on alarm calls and Colletta had notseen a back up denied to a male officer. Colletta describedinappropriate stares by a male officer and initially beingdenied the customary practice of watching television on the dayof the Superbowl in January 1997. One male officer called herthe "Ice Princess" while another called her a vulgar name withsexual overtones.
Colletta described a number of other incidents of harassmentand, in particular, one occurring in April 1997. After learningthat Sergeant Charles Middendorf ("Sergeant Middendorf") wasgoing to write Colletta up for abandoning her post at dispatch,even though he was not the dispatch supervisor, Colletta went toexplain the truth to the sergeant that she had not abandoned herpost. When she walked away from him because she had to go toroll call, Sergeant Middendorf, who weighed approximately 250 to260 pounds, began screaming at Colletta, a slightly petitefemale, and chasing after her through several rooms of thepolice station. Two other officers came forward to restrain him.Sergeant Middendorf nevertheless continued screaming atColletta. Colletta, as opposed to Sergeant Middendorf, was laterreprimanded for calling the sergeant a liar.
Colletta compiled a list of 34 incidents regarding harassmentshe experienced and presented the list to Chief Frane. TheChief, however, did nothing to respond to the incidents.Colletta testified that she felt that the environment did notchange with the new administration of Chief Frane. BecauseColletta worked the early night shift and Bandera worked duringthe day, Colletta did not hear or see anything with respect toFalco, as well as a number of other male officers, to suggestthat Falco was gender biased or discriminatory toward Bandera.
In or around April 1997, Officer Lawrence Kelley ("OfficerKelley") gave Lieutenant John F. McDonough ("LieutenantMcDonough"), a 32 year veteran of thepolice department, information about the harassment Colletta wasexperiencing from Sergeant Middendorf. Officer Kelley toldLieutenant McDonough that Sergeant Middendorf was constantlyharassing Colletta. Officer Kelley described Sergeant Middendorfas belittling Colletta in front of civilians and other policeofficers and screaming in her face. Officer Kelley also depictedhow Sergeant Middendorf grabbed Colletta by the neck and draggedher through a room while screaming in her face. The harassmentwas so striking that a number of senior patrol officers advisedColletta to "go to the MCAD."26
After receiving the information from Officer Kelley,Lieutenant McDonough reported the matter to Chief Mullen.According to Lieutenant McDonough, Chief Mullen "visibly sagged"when given the information and told Lieutenant McDonough that hewas aware of the matter and that it was "out of control."
In late April 1997 Lieutenant McDonough also met with theMayor and, during the meeting, presented him with a largebooklet of approximately 50 to 70 pages. One page from thatbooklet detailed Sergeant Middendorf's "campaign of harassment"against Colletta.27 During the meeting, LieutenantMcDonough spoke with the Mayor about the information regardingSergeant Middendorf's treatment of Colletta. The Mayor indicatedhe would look into the matter.
Lieutenant McDonough firmly believes he suffered repercussionsin his job for protecting women who claimed they were beingdiscriminated against by the Quincy Police Department. Accordingto Lieutenant McDonough, he was passed over from being promotedto captain, was changed from working the night shift, which hepreferred, to the day shift with a corresponding pay cut. Theday job, which he began in or around May 2000, involved sittingin a room for 18 months and answering the phone on twooccasions. When asked for an explanation about the new job, hewas told that "in everyone's life a little rain must fall" andthat he could always retire. He was also told that he wasordered to work with Bandera as a punishment.
Defendants argue that the $135,000 punitive damages award "isinconsistent and contrary to the evidence" and "unsupportableand excessive as a matter of law." (Docket Entry # 108).Defendants bring their motion under Rules 50(b) and 59(e).
Under Rule 50(b), "A jury verdict may not be set aside . . .except on a `determination that the evidence could lead areasonable person to only one conclusion.'" Acevedo-Diaz v.Aponte, 1 F.3d 62, 66 (1st Cir. 1993) (quotations omitted withemphasis in original). Judgment as a matter of law is warrantedonly if the evidence "is so one-sided that the movant is plainlyentitled to judgment for reasonable minds could not differ as tothe outcome." Gibson v. City of Cranston, 37 F.3d 731, 735(1st Cir. 1994); accord Mangla v. Brown Univ., 135 F.3d 80, 82(1st Cir. 1998). In other words, defendants are entitled tojudgment as a matter of law only if a reasonable jury could nothave found the city liable for the punitive damages award. SeeStar Financial Serv., Inc. v. Aastar Mortgage Corp., 89 F.3d 5,8 (1st Cir. 1996); accord Andrade v. JamestownHousing Auth., 82 F.3d 1179, 1186 (1st Cir. 1996) (proper toallow motion where evidence "`would not permit a reasonable juryto find in favor of the plaintiff on any permissible claim ortheory'").
Evidence and inferences reasonably extracted therefrom areviewed in the light most favorable to plaintiff, the nonmovant.Mangla v. Brown Univ., 135 F.3d at 82; Golden Rule Ins. Co.v. Atallah, 45 F.3d 512, 516 (1st Cir. 1995); Sanchez v.Puerto Rico Oil Co., 37 F.3d 712, 716 (1st Cir. 1994). Finally,it is improper to resolve conflicts in the testimony or toevaluate the credibility of the witnesses when ruling on aRule 50(b) motion. Star Financial Serv., Inc. v. Aastar MortgageCorp., 89 F.3d at 8.
Defendants also move to amend the final judgment underRule 59(e). Rule 59 requires a finding that "the verdict is soseriously mistaken, so clearly against the law or evidence, asto constitute a miscarriage of justice." Transamerica PremierIns. Co. v. Ober, 107 F.3d 925, 929 (1st Cir. 1997) (internalquotation marks omitted); accord Colasanto v. Life Ins. Co. ofNorth America, 100 F.3d 203, 212 (1st Cir. 1996); Sanchez v.Puerto Rico Oil Co., 37 F.3d 712, 717 (1st Cir. 1994) (courtwill set aside jury verdict only if it "is against thedemonstrable weight of the credible evidence or results in ablatant miscarriage of justice"). "This strict standard ofreview is especially appropriate" where, as here, "the motionfor new trial is based on a claim that the verdict is againstthe weight of the evidence." Transamerica Premier Ins. Co. v.Ober, 107 F.3d at 929 (internal quotation marks omitted).
Although under Rule 59 the court can weigh the evidence andassess the credibility of various witnesses, "a jury verdictthat is supported by the evidence may not be set aside simplybecause the trial judge would have reached a different result."Data Gen. Corp. v. Grumman Systems Support Corp., 825 F. Supp. 340,348 (Mass. 1993), aff'g in part and remanded in part onother grounds, 36 F.3d 1147 (1st Cir. 1994); Ins. Co. of NorthAmerica v. Musa, 785 F.2d 370, 375 (1st Cir. 1986) ("[i]nconsidering a new trial motion, the court may weigh the evidenceand assess the credibility of witnesses"). Consequently,although this court may not agree with the jury's verdict, thiscourt cannot "act merely as a '13th juror' and set aside averdict simply because [it] would have reached a differentresult had [it] been the trier of fact." Payton v. AbbottLabs, 780 F.2d 147, 153 (1st Cir. 1985).
As to defendants' brevis assertion that the award is"excessive," this court is obligated to grant a new trial "onlywhen the award `exceeds any rational appraisal or estimate ofthe damages that could be based upon the evidence before it.'"Eastern Mountain Platform Tennis, Inc. v. Sherwin-Williams Co.,Inc., 40 F.3d 492, 502 (1st Cir. 1994); accord Anthony v.G.M.D. Airline Serv., Inc., 17 F.3d 490, 493 (1st Cir. 1994)(setting forth same standard). A jury's award of damages "willwithstand scrutiny unless it is `grossly excessive, inordinate,shocking to the conscience of the court, or so high that itwould be a denial of justice to permit it to stand.'" Blinzlerv. Marriott Int'l, Inc., 81 F.3d at 1161; accord McMillan v.Mass. Soc. for the Prevention of Cruelty to Animals,140 F.3d 288, 306 (1st Cir. 1998) (further noting that propriety ofchapter 151B punitive damages award and factors the jury mayconsider "are questions of state law"). As explained by thecourt in Mejias-Quiros v. Maxxam Property Corp., 108 F.3d 425,428 (1st Cir. 1997), the "general language (`rational basis') isgiven content by cases declaring that the verdict should standunless it is `grossly excessive,' `inordinate,' `shocking to theconscience ofthe court,' or `so high that it would be a denial of justice topermit it to stand.'"
Reviewing the evidence, the jury could have rationally foundthe city liable for punitive damages due to the evil motives ofFalco and Flaherty and other members of the police departmentother than Frane. Coupled with the jury's desire to send amessage to the city to deter similar conduct in the future, areasonable jury could conclude that the evidence warranted anaward of punitive damages. Moreover, although compensatorydamages often provide sufficient punishment and deterrence, thejury did not award compensatory damages.28 See generallyMcMillan v. Mass. Soc. of Prevention of Cruelty to Animals, 140F.3d at 306 (rejecting argument that finding of intentionaldiscrimination justified award of punitive damages under chapter151B because logic dictates that "even in situations involvingintentional misconduct, compensatory damages may providesufficient punishment and deterrence"); Rowlett v.Anheuser-Busch, Inc., 832 F.2d 194, 206 (1st Cir. 1987) ("thelarge compensatory damage award, by itself, provide[d]significant deterrence"). Moreover, although the intent inquiryfor a punitive damages award is distinct and different from theintent inquiry for a compensatory damages award, see McMillanv. Mass. Soc. of Prevention of Cruelty to Animals, 140 F.3d at307, the same intent used to find the city's underlying chapter151B liability for sexual harassment may still provide anundergird for the punitive damages award. See Dichner v.Liberty Travel, 141 F.3d at 33-34 & n. 8.
In the case at bar, the jury legitimately found support in therecord to impose liability against the city for sexualharassment under chapter 151B. The conduct was sufficientlysevere and pervasive to interfere with a reasonable person'swork in plaintiffs position. Furthermore, in making thatdetermination, the jury may consider evidence of sexual jokesand harassing comments to the extent they were not offered forthe truth of the matter asserted but rather to show thepervasiveness and severity of the conduct in the workplace.See, e.g., White v. N.H. Dept. of Corrections, 221 F.3d 254,260 (1st Cir. 2000); see generally Keisling v. SER-Jobs forProgress, Inc., 19 F.3d 755 (1st Cir. 1994).
It is important to recognize, however, that punitive damages"are not intended to compensate a plaintiff for personalinjuries." Belanger v. Saint-Gobain Industrial Ceramics, Inc.,1999 WL 1324191 at *1 (Mass.Super. Feb. 24, 1999). The jury,however, did not award punitive damages simply to compensateplaintiff due to the absence of front and back pay damages.Rather, they used a reasonable and modest punitive damages awardof $135,00029 to deter similar conduct in the future by apolice department where plaintiff experienced pervasivediscrimination based on her gender, a discrimination againstwomen that was occurring day and night in and around the timeperiod of plaintiffs employment as shown by the city's treatmentof Colletta. The jury therefore imposed a punitive damages awardbased on the evidence of an evil motive which was in consonancewith the purpose of such an award which is, simply put, "topunish a defendant for his wrongdoing and act as a deterrent toprevent future wrongdoing." Belanger v. Saint-Gobain IndustrialCeramics,Inc., 1999 WL 1324191 at *1 (Mass.Super. Feb. 24, 1999).
In sum, the punitive damages finding against the city was notso seriously mistaken as to amount to a miscarriage of justice.Reasonable minds could differ as to whether certain individualsacted with an evil motive and an award was necessary to deterfuture conduct. In addition, the award was not excessive. See,e.g., Beaupre v. Cliff Smith & Assoc., 50 Mass. App. Ct. 480,738 N.E.2d 753, 768-769 (2000) (sex discrimination case collectingcases challenging various amounts of chapter 151B punitivedamages award as excessive).
Finally, the failure to find the city liable for a hostilework environment under section 1983 is explainable on the basisof the differences in imposing liability for such claims on amunicipality under section 1983, Bordanaro v. City of Everett,871 F.2d 1151, 1154-1158 (1st Cir. 1989); see Barney v.Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998); Lankford v.City of Hobart, 73 F.3d 283, 286 (10th Cir. 1996), versus anemployer under Title VII, O'Rourke v. City of Providence,235 F.3d 713, 736 (1st Cir. 2001), versus a municipality underchapter 151B, see Bain v. City of Springfield, 678 N.E.2d at159.
II. ATTORNEY WENDY A. KAPLAN'S PETITION FOR ATTORNEYS' FEES ANDCOSTS (DOCKET ENTRY # 110)
Without filing a separate motion to intervene, see PublicCitizen v. Liggett Group, Inc., 858 F.2d 775, 784 (1st Cir.1988) (cautioning future litigants not to circumventFed.R.Civ.P. 24(c)), Attorney Kaplan filed a petition requestingan award of attorney's fees "[a]s the former attorney of theprevailing party." (Docket Entry # 110). Defendants correctlyobject to the petition because Attorney Kaplan lacksstanding.30 (Docket Entry # 117).
Attorney Kaplan represented plaintiff from late September orearly October 1998 to January 9, 2002, when the court allowedher motion to withdraw as plaintiffs counsel. By affidavit filedbefore the court allowed her to withdraw her appearance,Attorney Kaplan explained that she and plaintiff had"irreconcilable differences" that made it "impossible" forAttorney Kaplan to continue her representation. (Docket Entry #42). The differences between Attorney Kaplan and plaintiff stemfrom plaintiff's refusal to sign a formal settlement agreement.The affidavit itself (Docket Entry # 42) evidences the acrimonybetween counsel and plaintiff that appears, to this court, tocontinue to this day.
In any event, plaintiff opposes Attorney Kaplan's request for$58,635 in attorney's fees except for certain fees requested forthe services of Anne Glennon ("Glennon"), a certified paralegalwho assisted Attorney Kaplan during her representation ofplaintiff, and certain fees requested for the services of MiriamMiller-Owens ("Miller-Owens"), a legal assistant who alsoassisted Attorney Kaplan during her representation of plaintiff.(Docket Entry ## 111, 113, 119 & 124).
The jury found the City liable for creating a hostile workenvironment claim under Title VII and for sexual harassmentunder chapter 151B. The basis for any attorney's fee award and,thus, any court ordered award directly to Attorney Kaplan fromdefendants therefore lies, if at all, under these two statutes.
A. Title VII
Title VII authorizes an award of "a reasonable attorney's fee"to the "prevailingparty." 42 U.S.C. § 2000e-5(k). The standard for an award offees under Title VII is synonymous to that applicable to civilrights cases under 42 U.S.C. § 1988 ("section 1988"). Hensleyv. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 76L.Ed.2d 40 (1983); Denton v. Boilermakers Local 29,673 F. Supp. 37, 52 (Mass. 1987).
In order to recover fees under Title VII, plaintiff mustattain the threshold status of a "prevailing party." "`[A]plaintiff "prevails" when actual relief on the merits of hisclaim materially alters the legal relationship between theparties.'" Race v. Toledo-Davila, 291 F.3d 857, 858 (1st Cir.2002) (quoting Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct.566, 121 L.Ed.2d 494 (1992); emphasis omitted). Statedotherwise, in order to achieve prevailing party status, theplaintiff must "show that he succeeded on an important issue inthe case, thereby gaining at least some of the benefit he soughtin bringing suit." Gay Officers Action League v. Puerto Rico,247 F.3d 288, 293 (1st Cir. 2001). Once the plaintiff makes thisthreshold showing, fee awards "are `virtually obligatory'"notwithstanding the permissible language in section 2000e-5(k),to wit, that "the court, in its discretion, may" awardattorney's fees to the prevailing party.3142 U.S.C. § 2000e-5(k); Gay Officers Action League v. Puerto Rico, 247F.3d at 293 (interpreting identical language in section 1988).
Even assuming arguendo that plaintiff is a prevailing party,which this court doubts inasmuch as plaintiff is no longeremployed by the City and the jury's finding or any declarationwould therefore not affect the City's behavior at the time ofthe judgment, see Bonner v. Guccione, 178 F.3d 581, 593-600(2d Cir. 1999) (finding of sexual harassment by jury of no moreconsequence than declaratory judgment to this effect and,inasmuch as the plaintiff was no longer employed by thedefendant, it did not alter or affect their relationship tosupport attorney's fees under Title VII, even though theplaintiff recovered compensatory damages under state law claim);Canup v. Chipman-Union, Inc., 123 F.3d 1440, 1442-1444 (11thCir. 1997); Walker v. Anderson Elect. Connectors,944 F.2d 841, 845-847 (11th Cir. 1991) (jury finding of sexualharassment, without more, does not entitle party to attorney'sfees under Title VII); see also Richardson v. Miller,279 F.3d 1, 4 (1st Cir. 2002) (recognizing Supreme Court's rejection ofcatalyst theory); but cf. Cipriano v. Rhode Island,738 F.2d 535 (1st Cir. 1984), the ability to apply for attorney's feesunder section 1988 and, by analogy, under the same language insection 2000e-5(k) of Title VII, belongs to the client and nothis attorney. See Evans v. Jeff D., 475 U.S. 717, 730-731, 106S.Ct. 1531, 89 L.Ed.2d 747 (1986) (section 1988 vests right toattorney's fees in civil rights action in "prevailing party" andnot the party's attorney); United States ex rel. Virani v.Jerry M. Lewis Truck Parts & Equipment, Inc., 89 F.3d 574, 577(9th Cir. 1996) (if client does not ask for fees, attorney lacksstanding to request them under section 1988); Benitez v.Collazo-Collazo, 888 F.2d 930, 933 (1st Cir. 1989)("`prevailing party' language makes it patently obvious that itis the prevailing party, not the party's counsel, who isentitled to be awarded fees" and, since attorney's fees belonginitially to the "prevailing party, only the party, and notthe attorney, has standing"); Willard v. City of Los Angeles,803 F.2d 526, 527 (9th Cir. 1986) ("attorney has no standingunder section 1988 to seek attorney's fees in his ownbehalf"); Brown v. General Motors Corp., 722 F.2d 1009, 1011(2d Cir. 1983) (where client fired attorney before settlement,attorney lacked standing to seek fees in his own name undersection 1988); Parry v. Mulhollan, 2000 WL 33216030 at *4(S.D.Ohio March 20, 2000) ("decision to seek attorney fees in acivil rights case belongs to the client"). By the same token,however, "the client himself is not entitled to keep the feeswhich are measured by and paid on account of the attorney'sservices." Virani, 89 F.3d at 577.
The reasoning for denying standing to a party's attorney todirectly request fees under section 2000e-5(k) or section 1988is twofold. First, the language of section 2000e-5(k) confersthe right on the "prevailing party." See Benitez v.Collazo-Collazo, 888 F.2d at 933. Second, inasmuch as section2000e-5(k) bestows fees upon parties and not upon theirattorneys, it is the party who can waive, settle or negotiatehis entitlement to such statutory fees. See Howard v. Mail-WellEnvelope Co., 150 F.3d 1227, 1230 (10th Cir. 1998) (quotingVirani, 89 F.3d at 577, and using same reasoning under section1988).
In sum, given this weight of authority, Attorney Kaplan isresoundingly not entitled to directly petition this court forfees under Title VII.
B. Chapter 151B
Unfortunately for Attorney Kaplan, she fares no better underchapter 151B. Section nine of chapter 151B provides that, "Ifthe court finds for the petitioner, it shall . . . award thepetitioner reasonable attorney's fees and costs unless specialcircumstances would render an award unjust." Mass. Gen. L. ch.151B, § 9.
Without question, this court and the jury found in favor ofplaintiff on the chapter 151B claim. Not only did the jury finda substantive violation of the statute, but it also awardedplaintiff $135,000 in punitive damages. Accordingly, plaintiffis entitled to attorney's fees under chapter 151B.
Although an issue of first impression, this court concludesthat the statute initially bestows the right on the party andnot his attorney to petition the court for attorney's fees.First, the language of section nine gives the award to "thepetitioner." Mass. Gen. L. ch. 151B, § 9, ¶ 3. The common andordinary meaning of the word "petitioner" refers to "[a] partywho presents a petition to a court."32 Black's LawDictionary (7th ed. 1999) (defining "petitioner"); see UnitedStates v. Knott, 256 F.3d 20, 28 (1st Cir. 2001) (task ofstatutory interpretation begins by examining language itselfwith statutory terms accorded "their ordinary meaning, . . .including as reflected in dictionary definitions" such asBlack's Law Dictionary and standard English languagedictionaries), cert. denied, ___ U.S. ___, 122 S.Ct. 1064, 151L.Ed.2d 967 (2002). In addition, the statutory section uses thephrase "petitioner" interchangeably with the phrase "aggrievedperson" or "person claiming to be aggrieved." Mass. Gen. L. ch.151B, § 9, ¶¶ 2 & 4; see Commonwealth v. Dowd,37 Mass. App. Ct. 164, 638 N.E.2d 923, 926 (1994) (determining meaning of"aggrieved person," in part, by noting that section five ofchapter 151B uses phrase interchangeably with word"complainant"). Although "person" may include a legalrepresentative, Mass. Gen. L. ch. 151B, § 1(1), the ordinarymeaning of an "aggrieved person" refers to an aggrieved party,that is, a person whose personal or pecuniaryrights have been adversely affected by another person's actions.Black's Law Dictionary (7th ed. 1999) (defining "aggrievedparty" as also termed "person aggrieved" and as meaning "[a]party whose personal, pecuniary, or property rights have beenadversely affected by another person's actions"); Random HouseCollege Dictionary (revised ed. 1988) (defining "aggrieved" inthe law as meaning "deprived of legal rights or claims"); seeUnited States v. Knott, 256 F.3d at 28 (task of statutoryinterpretation begins by examining language itself withstatutory terms accorded "their ordinary meaning" includingdictionary definitions). Thus, the ordinary meanings of both"petitioner" and "aggrieved person" refer to a party as opposedto the party's attorney who, by definition, is not aggrieved byany unlawful practice referenced in section nine but is, rather,representing the person aggrieved by the unlawful practice.
Limiting the phrase "petitioner" to refer to a party isconsonant with the practice under Title VII and section 1988. Ittherefore has the advantage of producing consistent results fromcase to case and reduces forum shopping by attorneys seeking toobtain a better position at the expense of their clients instate as opposed to federal court. See Fontaine v. EbtecCorp., 415 Mass. 309, 613 N.E.2d 881, 891 (1993) (reasoningthat attorney's fees should be calculated in same manner understate and federal anti-discrimination statutes to ensureconsistent results and discourage forum shopping and thereforeadopting lodestar approach for chapter 151B plaintiff). It alsoserves the purpose behind chapter 151B which, in its broadestsense, is "the elimination of unlawful discrimination."Westinghouse Electric Supply Corp. v. Mass. Comm. AgainstDiscrimination, 1999 WL 140492 at *12 (Mass.Super. March 5,1999). Like the plaintiff in Brown, 722 F.2d at 1011, AttorneyKaplan no longer represented plaintiff at the time of the feerequest due to irreconcilable differences. In denying standingto Brown's attorney for a fee request under section 1988, theSecond Circuit reasoned that:
Were we to entertain Davis' claim, clients' control over their litigation would be subject to a veto by former attorneys no longer under an obligation of loyalty and perhaps aggrieved by the circumstances of their discharge.
Since the inability of a client to control litigation can only deter it, we believe the result of entertaining claims for fees under Section 1988 by attorneys in their own name would be counterproductive so far as the underlying purpose of that section is concerned. See Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir. 1982) (purpose of Section 1988 is to encourage the bringing of meritorious civil rights actions).
Brown, 722 F.2d at 1011. The same reasoning applies with equalforce to the case at bar.
This court's construction also does not detract from thestatute's purpose of attracting "competent legal counsel forthose with meritorious claims." Fontaine v. Ebtec Corp., 613N.E.2d at 892 (recognizing attracting competent counsel as anaim behind statutory provision of awarding counsel fees insection nine of chapter 151B). Attorneys remain free tonegotiate privately for what their fees will be in the event ofa withdrawal or termination of the attorney-client relationship.See Venegas v. Mitchell, 495 U.S. 82, 86-87, 110 S.Ct. 1679,109 L.Ed.2d 74 (1990) (noting "there is nothing in [section1988] to regulate what plaintiffs may or may not promise to paytheir attorneys if they lose or if they win"); Powers v. H.B.Smith Co., Inc., 42 Mass. App. Ct. 657, 679 N.E.2d 252, 259(1997) (private contingent fee arrangement does not limit oreffect attorney's feeaward under section nine of chapter 151B). Indeed, plaintiff andAttorney Kaplan's contingent fee agreement contains provisionsregarding the fees between plaintiff and Attorney Kaplan in theevent of withdrawal.33
In sum, as defendants suggest, Attorney Kaplan lacks standingto make a direct fee request under section nine of chapter 151Bto this court. Rather, it is plaintiff who controls the courseof litigation and it is plaintiff who has the ability and theinitial power of petitioning this court for an attorney's feeaward from the City.
III. Bill of Costs (Docket Entry # 113)
In a bill of costs (Docket Entry # 113), an additional requestfor consideration (Docket Entry # 119) and a response to thiscourt's Procedural Order of August 9, 2002 (Docket Entry # 124),plaintiff seeks to recover costs under Rule 54(d)(1) andattorney's fees under Rule 54(d)(2).
A. Costs under Rule 54(d)(1)
As to the former, plaintiff moves to recover a total of$2,289.54 in "costs" which consist of the following: (1) copyingcosts of $238.63; (2) $432 in costs to serve trial subpoenas;(3) $40 in court reporting costs relative to depositions; (4)$67.68 in postage costs; (5) $313.75 in legal fees; (6) $1,000in mediation fees; (7) $42.82 for parking for plaintiff toattend a deposition and for undocumented office supplies; and(8) $154.66 in PACER services. The fifth and sixth items arereimbursable, if at all, as attorney's fees under chapter 151B.See Gil de Rebollo v. Miami Heat Assoc., Inc., 137 F.3d 56, 66(lst Cir. 1998) (section 1920 does not include attorney's fees).They are dealt with infra.
As to items one through four, seven and eight, Rule 54(d)works in tandem with 28 U.S.C. § 1920 ("section 1920") and"cannot be stretched beyond the parameters defined in section1920" to encompass charges "unenumerated in [section 1920]." Inre San Juan Plaza Hotel Fire Litigation, 994 F.2d 956, 964 (1stCir. 1993). Section 1920 recognizes the ability of theprevailing party34 to recover copying costs if"necessarily obtained for use in the case" under section1920(4), costs of serving subpoenas on trial witnesses undersection 1920(3) and costs of transcribing depositions used attrial or otherwise introduced in evidence under section 1920(2).See Templeman v. Chris Craft Corp., 770 F.2d 245, 249 (1stCir. 1985); The Garshman Company, Ltd. v.General Electric Co., Inc., 993 F. Supp. 25, 29 (Mass. 1998).In general, section 1920 does not recognize recovery for postagecosts, Johnson v. Vose, 2000 WL 303305 at *14 (R.I. March 22,2000) (postage cost "not recoverable under § 1920"), officesupplies, parking fees for plaintiff to attend a deposition, andPACER fees.
More importantly, the customary procedure under Rule 54(d)(1)is for plaintiff to submit the bill of costs to the clerk whoinitially taxes the allowable costs against the non-prevailingparty. See, e.g., Congregation of the Passion v. Touche, Ross &Co., 854 F.2d 219, 222 (7th Cir. 1988) (Rule 54 sets forthprocedure whereby clerk initially taxes the costs and districtcourt reviews that taxation); see also James Wm. Moore, 10Moore's Federal Practice ¶ 54.100 (2002) (initialobligation for taxing costs falls upon the clerk). Because theproper procedure is for the clerk to first tax costs, thematters requested in items one through four, seven and eight arereferred to the clerk for action.
B. Attorney's Fees
Although denominated as a "cost," plaintiff seeks to recover$288.75 in legal fees for the services of Attorney Mark D. Stern("Attorney Stern") (Docket Entry # 114, Ex. E), $25.00 in legalfees for the services of Attorney Galen Gilbert ("AttorneyGilbert") (Docket Entry # 114, Ex. E) and $1000 in mediationfees (Docket Entry # 114, Ex. F). She also requests $5,716.87 infees for the services and expenses incurred by AttorneyKaplan.35
As noted in part II, plaintiff is entitled to fees undersection nine of chapter 151B. It is also appropriate tocalculate the fee by the lodestar method. Fontaine v. EbtecCorp., 613 N.E.2d at 892 ("in a simple discrimination case, thebasic fee award [under Mass. Gen. L. ch. 151B, § 9], calculatedby the lodestar method, is adequate to achieve the statutorypurpose").
The starting point under the lodestar method is to determine"the number of hours reasonably expended on the litigationmultiplied by a reasonable hourly rate." Hensley v. Eckerhart,461 U.S. at 433, 103 S.Ct. 1933; accord Coutin v. Young &Rubicam Puerto Rico, Inc., 124 F.3d 331, 337 (1st Cir. 1997).Plaintiff, as the fee applicant, "bears the burden ofestablishing entitlement to an award and documenting theappropriate hours expended and hourly rates." Hensley v.Eckerhart, 461 U.S. at 437, 103 S.Ct. 1933.
Documentary preconditions to a fee award typically require thefee applicant to "submit a `full and specific accounting of thetasks performed, the dates of performance, and the number ofhours expended on each task.'" Tennessee Gas Pipeline Co. v.104 Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994) (quotingWeinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 527(1st Cir. 1991)). Mindful of the obligation to liberallyconstrue plaintiff's pro se filings, this court issued aprocedural order warning plaintiff of the documentationrequirement.
The lodestar approach requires ascertaining "`the number ofhours reasonably expended on the litigation multiplied by areasonable hourly rate.'" Coutin v. Young & Rubicam PuertoRico, Inc., 124 F.3d at 337. In calculating "the number ofhours reasonably spent, one must first determine the number ofhours actually spent and then subtract from that figure hourswhich were duplicative, unproductive, excessive, or otherwiseunnecessary." Grendel's Den, Inc. v. Larkin, 749 F.2d 945,950-952 (1st Cir. 1984); accord Lipsett v. Blanco, 975 F.2d at937 (quoting Grendel). Hours expended which are excessive inlight of the simplicity of the task, see Pearson v. Fair,980 F.2d 37, 47 (1st Cir. 1992) (suggesting in dicta that litigationmay be so complex and novel that "a plaintiff may have to retainmore than 15 skilled" attorneys); Foley v. City of Lowell,948 F.2d 10, 19 (1st Cir. 1991) (lack of complexity constitutesacceptable reason to reduce number of actual hours), or whichreflect charges for a number of lawyers to perform a task "whenone would do," Lipsett v. Blanco, 975 F.2d at 938; see, e.g.,Grendel's Den, Inc. v. Larkin, 749 F.2d at 953 (finding "nojustification for the presence of two top echelon attorneys ateach proceeding"), are suspect.
After determining the appropriate number of hours, the courtthen "applies the prevailing rates in the community (taking intoaccount the qualifications, experience, and specializedcompetence of the attorneys involved)." Gay Officers ActionLeague v. Puerto Rico, 247 F.3d at 295. Ordinarily, indetermining a reasonable hourly rate, the starting point is theprevailing market rate in the relevant community. Andrade v.Jamestown Housing Authority, 82 F.3d 1179, 1190 (1st Cir.1996). The prevailing market rate in a community is the ratecharged "`for similar services by lawyers of reasonablycomparable skill, experience and reputation.'" Andrade v.Jamestown Housing Authority, 82 F.3d at 1190 (quoting Blum v.Stenson, 465 U.S. 886, 985 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d891 (1984)). The court is also "entitled to rely upon its ownknowledge of attorney's fees in the surrounding area in arrivingat a reasonable hourly rate." Andrade v. Jamestown HousingAuthority, 82 F.3d at 1190.
Turning first to plaintiffs request for fees for the servicesof Attorney Kaplan, plaintiff seeks to recover a total of$5,716.87 representing 114.34 hours of work performed byAttorney Kaplan from October 5, 1999 through November 30, 2001,at an hourly rate of $50.00. (Docket Entry # 124). Reviewing thedescription of Attorney Kaplan's time provided for this period(Docket Entry # 110, Ex. B), all ofthe entries appear reasonable, Although the description includestime in excess of the requested number of hours, because all ofthe entries are reasonable, it is not necessary to pinpoint theexact dates at this time where, as here, plaintiff is proceedingpro se and defendants did not oppose plaintiffsrequest.36
As to the hourly rate, fifty dollars is more than a reasonablehourly rate. Indeed, it is unquestionably low in light ofAttorney Kaplan's experience and the prevailing market rates.
Multiplying the $50 hourly rate by the 114.34 hours performedby Attorney Kaplan yields a lodestar of $5,716. Once arrived at,there is a "strong presumption that the lodestar figure . . .represents a `reasonable' fee." Pennsylvania v. Delaware ValleyCitizens' Council for Clean Air, 478 U.S. 546, 564-565, 106S.Ct. 3088, 92 L.Ed.2d 439 (1986). Plaintiff did not request anupward adjustment. Inasmuch as she bears the burden ofjustifying an upward adjustment, see Blum v. Stenson, 465 U.S.at 898, 104 S.Ct. 1541, and such an adjustment is proper only in"`rare'" or "`exceptional' cases," Pennsylvania v. DelawareValley Citizens' Council for Clean Air, 478 U.S. at 564-565,106 S.Ct. 3088, an upward adjustment is not warranted.
Defendants likewise did not request a downward adjustment.Although plaintiff did not prevail on the wrongful terminationclaims, they arose from a common core of facts to the successfulsexual harassment or hostile work environment claims. The claimsare therefore interconnected. Plaintiff obtained substantialcompensation. "Where a lawsuit consists of related claims, aplaintiff who has won substantial relief should not have hisattorney's fees reduced simply because thedistrict court does not adopt each contention raised." Hensleyv. Eckerhart, 461 U.S. at 440, 103 S.Ct. 1933; accord Coutinv. Young & Rubicam Puerto Rico, Inc., 124 F.3d at 339.Moreover, "it is the fee target's burden to show a basis forsegregability," Koster v. Trans World Airlines, Inc.,181 F.3d 24, 38 (1st Cir. 1999), and, by not filing an opposition toplaintiffs fee request, defendants did not meet this burden. Adownward adjustment is inappropriate.
In sum, an attorney's fee award of $5,716 for the services ofAttorney Kaplan is eminently reasonable if not unduly low.Because plaintiff does not request a sum greater than $5,716.87,this court will award plaintiff the $5,716.87 requested amount.
Plaintiff also seeks to recover $288.75 in legal fees for theservices of Attorney Stern. (Docket Entry # 114, Ex. E).Attorney Stern spent a total of 1.65 hours at an hourly rate of$175 to review and consult with plaintiff on her employmentgender discrimination claim. (Docket Entry # 114, Ex. E). Giventhis court's knowledge of the prevailing hourly rates, the rateappears reasonable. Inasmuch as plaintiff paid Attorney Sternfor his services (as shown by the $262.56 check payable to himand Attorney Stern's invoice showing receipt of this amount) andthe consultation fee agreement's statement that plaintiff"retains the Law Office of Mark D. Stern," this court findsthere was an attorney client relationship between plaintiff andAttorney Stern in November 2001. The amount will be included aspart of plaintiffs award of reasonable attorney's fees andcosts.
Next, plaintiff requests $25.00 in legal fees for the servicesof Attorney Galen Gilbert ("Attorney Gilbert"). (Docket Entry #114, Ex. E). Although a close issue, this court finds there wasan attorney client relationship between Attorney Gilbert andplaintiff sufficient to justify an award of attorney's feesunder chapter 151B. See Blazy v. Tenet 194 F.3d 90, 94(D.C.Cir. 1999) (finding sufficient attorney client relationshipfor pro se litigant to recover attorney's fees forconsultations with various lawyers under Privacy Act); seegenerally United States v. Devery, 1995 WL 217529 at *14(S.D.N.Y. April 12, 1995). Plaintiff consulted Attorney Gilbertabout her case in or around February 8, 2002. Given the liberalconstruction afforded section nine, Mass. Gen. L. ch. 151B, § 9,¶ 1, plaintiff may therefore recover $25 for Attorney Gilbert'sservices.
Plaintiff additionally requests $1000 in mediation fees in thebill of costs. (Docket Entry # 114, Ex. F). In or around lateOctober 2001, the parties engaged in mediation with AttorneyKaplan representing plaintiff. Attorney Kaplan billed plaintiff$1050, as well as an additional $300, for the expenses of themediator, Mark Irvings. Plaintiff paid Attorney Kaplan $1050, inpart by check and in part by cash, for those expenses. In herrequest for attorney's fees for the services of Attorney Kaplan,however, plaintiff lists the $1050 mediation fee as part of the$5,716.87 requested fee. (Docket Entry # 124 & Ex. A). In otherwords, the $1050 mediation fee is part of the $5,716.87reasonable attorney's fees and costs requested by plaintiff andallowed by this court under chapter 151B.
In the bill of costs, plaintiff requests reimbursement forthis same mediation albeit in the lower amount of $1000. Indeed,she supports the request with a copy of the same $175 check sheused to support her payment of the expenses and inclusion of the$1050 amount in her request for attorney's fees for the servicesof Attorney Kaplan. (Docket Entry # 114, Ex. F; Docket Entry #124, Ex. B). Inasmuch as this court has already includedthe $1050 amount as part of the reasonable attorney's fees andcosts awarded under chapter 151B, it is improper to award thisduplicative amount.
As a final matter, plaintiff requests an award of $1,458 forthe services of Glennon and $621 for the services of Glennon andMiriam-Owens. (Docket Entry ## 119 & 124). Turning to Glennon,plaintiff seeks payment of a total of 48.6 hours at an hourlyrate of $30. Reviewing the documentation, Glennon participatedin various telephone conference calls, reviewed positionstatements, prepared discovery responses, analyzed and compileddocuments, drafted attorney correspondence and conducted legalresearch. In light of the $30 hourly rate, the tasks appearappropriate. See Lipsett v. Blanco, 975 F.2d at 939. Therequested time and the tasks performed appear reasonable,necessary and not excessive. The requested hourly rate of $30 ismore than reasonable.
As to Miriam-Owens, plaintiff asks for a fee of $621representing 20.7 hours of work at a rate of $30. Miriam-Owensparticipated in telephone conferences with plaintiff, revieweddocuments, prepared for depositions and court appearances andassisted in the mediation. The requested hourly rate of $30 isreasonable for the type of services performed. The hoursexpended is not excessive. Plaintiff is therefore entitled to$1,458 for the services of Glennon and $621 for the services ofMiriam-Owens.
In conclusion, plaintiff is entitled to reasonable attorney'sfees and costs under chapter 151B in the amount of $5,716.87 forthe services of Attorney Kaplan, $288.75 for the services ofAttorney Stern, $25 for the services of Attorney Gilbert, $1,458for the services of Glennon and $621 for the services ofMiriam-Owens resulting in a total award of $8,109.62. Inasmuchas this court included attorney's fees in the final judgment,plaintiff is also entitled to post judgment interest on thisamount. See Foley v. City of Lowell, 948 F.2d at 21.
In accordance with the foregoing discussion, defendants'motion for judgment as a matter of law (Docket Entry # 108) andAttorney Kaplan's petition for attorney's fees (Docket Entry #110) are DENIED. Plaintiff is entitled to an award of$8,109.62 in reasonable attorney's fees and costs under chapter151B. The bill of costs, other then the fifth and sixth items,are referred to the clerk for action.
1. Plaintiff decided to forgo her claim for emotional andmental distress damages as well as medical costs in order toproceed to trial as scheduled in late April 2002 and avoidintrusive discovery and trial testimony. In addition, on May 7,2002, this court instructed the parties to review the proposedjury instructions and advise this court if there were any partof a claim or defense that was omitted. Neither party asked thiscourt to include an additional claim or defense.
2. In the first paragraph of the punitive damagesinstruction, this court advised the jury that they could awardpunitive damages under section 1983 against the individualdefendants, Frane and Sheets, but not against the City ofQuincy, and that they could award punitive damages under chapter151 B against the City of Quincy as well as the individualdefendants. Inasmuch as the jury did not find the individualdefendants liable under section 1983 or chapter 151B and thespecial verdict question expressly referred the jury to thepunitive damages instruction, their award of $135,000 was underchapter 151B against the City of Quincy.
3. In all fairness, this court did not require either partyto submit proposed instructions. This court's decision not torequire mandatory submission of proposed jury instructions didnot, however, prevent defendants from proffering proposedlanguage if they so chose. Nor did it prevent defendants frominterposing an objection to any instruction fashioned by thiscourt. Indeed, at the start of the eighth day, this court hearda number of objections from defendants regarding theinstructions primarily on the subject of the front and back payinstructions. Finally, this court afforded the parties ampleopportunity to review the instructions by giving each party awritten copy at the outset of the morning session on the seventhday of trial. At that time, this court also explicitly advisedboth parties that if there were a theory of relief or a claim orpart of a claim or defense that was omitted from theinstructions, the party should advise this court by the close ofbusiness or, if not, this court would consider it a waiver.
On a collateral matter, on the start of the eighth day oftrial, this court made a finding that reinstatement wasimpracticable or impossible due, in part, to the unusual andsevere hostility between the parties. The animosity went beyondthat typically engendered by litigation. See Kelley v. AirborneFreight Corp., 140 F.3d 335, 353-354 (1st Cir. 1998). Moreover,plaintiff's former administrative supervisor and one of herprincipal combatants, former Lieutenant William Falco ("Falco"),was now chief of the police department.
4. The above emphasis is to explain the basis for the jury'saward and was not in the written instructions.
5. The above emphasis is to explain the basis for the jury'saward and was not in the written instructions.
6. In contrast, it is unlikely that the First Circuit woulduphold a punitive damages award under Title VII unaccompanied byeither a compensatory, nominal or back pay award. SeeKerr-Selgas v. American Airlines, Inc., 69 F.3d 1205, 1214-1215(lst Cir. 1995); see also Provencher v. CVS Pharmacy,145 F.3d 5 (1st Cir. 1998) (distinguishing Kerr-Selgas based on"critical fact" of the award of back pay and affirming juryaward of punitive damages in light of court's back pay award);accord Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1, 14n. 10 (Ist Cir. 1999) ("[a]s long as some compensatory damagesare awarded or the district court awards back pay, punitivedamages are recoverable under the ADA").
7. In contrast, Title VII expressly precludes a party fromrecovering punitive damages against "a government, governmentagency or political subdivision." 42 U.S.C. § 1981a(b)(1).
8. As discussed infra, the deterrence aspect of a punitivedamages award is particularly appropriate to the case at bar.
9. Although the punitive damages instruction did notdistinguish between the standard for an award of punitivedamages under chapter 151B versus section 1983, an argument notraised in defendants' motion, this court decided not to furtherconfuse the jury between the difference in the standards, ifany, in light of the First Circuit's approval of this practicewhere, as here, the parties did not challenge the phraseology ofthe punitive damages instruction. See Dichner v. LibertyTravel, 141 F.3d at 28-29 & 33-34.
10. The factual summary is not a complete record of thetestimony and exhibits at trial. Rather, it is a brief summaryof the record with emphasis on the facts favorable to plaintiffwhich a reasonable jury could find from the record.
11. Bandera graduated from Quincy College in 1980.
12. The Mayor did not verify the references listed onBandera's resumé, which he carefully reviewed, because she waswell known to Raymondi. Under the subject of education, theresumé lists a master's degree in criminal justice fromNortheastern University. Bandera believed, albeit erroneously,that she could list her master's degree on her resumé becauseshe had completed her course work even though she had notfinished her thesis. She worked on her thesis during heremployment as Executive Director and did not receive her diplomauntil September 1998.
In August 1997, when Raymondi asked Bandera to go down to CityHall and complete a job application, Bandera complied andattached a copy of her resumé listing the master's degree to theapplication.
13. The fiscal year ran from July 1 to June 30.
14. Seventy five percent of the funding came from the federalgovernment.
15. These and other actions taken by both Frane and the Mayorsupport the jury's finding that they were not liable toplaintiff for sexual harassment under chapter 151B or forcreating a hostile work environment under section 1983.
16. During this time period, Raymondi was Bandera's personalattorney in her attempt to obtain child support payments and hefiled a claim for contempt on her behalf in January 1998.
17. There was also evidence that an earlier meeting tookplace on or around December 4, 1997, with the Mayor, Bandera andChief Frane regarding the issues she was experiencing at thepolice department.
18. Chief Frane testified that he had given Bandera his pagerand home telephone numbers to use in the event she was havingdifficulties with her job.
19. During the meeting, Bandera also expressed her concernthat she was not being allowed to go to various neighborhoodmeetings and that, instead, another male officer was being toldto attend.
20. Chief Frane anticipated that police officers working the4 p.m. to midnight shift would handle the majority of the youthincidents.
21. The goals included recruiting and hiring the bestpossible candidates for the community policing positions andimplementing community policing with the most qualifiedofficers.
22. The cost of participation was $80. Bandera offered to dothe volunteer work in lieu of paying the $80 fee.
23. Officer Edgar was referring to the McGruff the crime dogoutfit. McGruff the crime dog is a national symbol for crimeprevention.
24. Initially, Bandera's position was put into the budget asa full time position at an annual salary of $42,500.
25. The lack of funding and elimination of plaintiff'sposition from the budget explains why the jury did not awardplaintiff any compensatory damages for back or front pay.
26. The MCAD is an acronym for the Massachusetts CommissionAgainst Discrimination.
27. Lieutenant McDonough gave similar information to SuePerch and Attorney Kaplan, Sue Perch's attorney as well asplaintiff's former attorney. He also gave Colletta a documentcontaining the information about Sergeant Middendorf's"`campaign of harassment'" against her.
28. The jury determined that plaintiff did not suffer anyclaimed compensatory damages. Her job was eliminated and she didnot seek an award for emotional and mental distress.
29. The award becomes all the more reasonable in light of theabsence of a compensatory damages award which itself might haveserved a deterrent value.
30. Accordingly, this court expresses no opinion ondefendants' alternative argument that the settlement agreementAttorney Kaplan from bringing the petition.
31. The obligatory nature of an attorney's fee awardparallels the obligatory nature of an award under section nineof chapter 151B. That section provides that a court "shall"award attorney's fees absent special circumstances. Mass. Gen.L. ch. 151B, § 9.
32. Attorney Kaplan's labeling of herself as a petitionerdoes not convert her status to that of a party.
33. This court expresses no opinion on whether the partiesmodified this agreement or on the enforcement of the agreementwhich is not before this court. The contingent fee agreement isa private agreement between plaintiff and her attorney and doesnot impact the request in the complaint for attorney's feespayable by the City. See Powers v. H.B. Smith Co., Inc., 679N.E.2d at 259; Mendoza v. Union Street Bus Co., Inc.,876 F. Supp. 8, 13 (Mass. 1995). To state the obvious, this actiondoes not involve a breach of contract or an allegation ofunprofessional conduct between a nonparty and plaintiff.Furthermore, an award of attorney's fees should not "lead to asecond source of major litigation." Benitez v.Collazo-Collazo, 888 F.2d at 933 n. 4. In any event, the matteris appropriately addressed by a state court. See fn. 34.
34. Inasmuch as plaintiff obtained punitive damages underchapter 151B for sexual harassment, she is the "prevailingparty" within the meaning of Rule 54(d) even though she did notrecover under her section 1983 claims or her state and federalclaims for wrongful termination. See Sharon v. Yellow FreightSys., Inc., 985 F. Supp. 1274, 12751276 (Kan. 1997) (finding theplaintiff "prevailing party" under Rule 54(d) inasmuch as heprevailed on implied contract claim even though not on theemployment discrimination claim); see also Johnson v. Vose,2000 WL 303305 at *14 (R.I. March 22, 2000) (collectingdefinitions of "prevailing party" under Rule 54(d)).
35. Plaintiff only requests $5,716.87 in fees for theservices of Attorney Kaplan. Specifically, in response to theAugust 9, 2002 Procedural Order, plaintiff attests, in nouncertain terms, that she is requesting reimbursement for legalfees in the amount of $5,716.87 for the services of AttorneyKaplan. (Docket Entry # 124). Plaintiff thus limits her requestto that amount of money that she has already paid AttorneyKaplan. In so doing, plaintiff apparently overlooks theprinciple that attorney's fees only belong "initially[emphasis added] to the prevailing party [emphasis inoriginal]." Benitez v. Collazo-Collazo, 888 F.2d at 933(citing Soliman v. Ebasco Serv., Inc., 822 F.2d 320, 323 (2dCir. 1987)). As further explained by the court in Soliman,cited by the First Circuit in Benitez, "Whether thoseattorney's fees that are awarded ultimately end up in thelawyer's or the client's hands depends, of course, on theprivate fee arrangements entered into between them whenrepresentation is undertaken." Soliman v. Ebasco Serv., Inc.,822 F.2d at 323. Furthermore, like the attorney in Benitez,who filed an appeal over the objections of his former clients,lacked standing and was assessed costs, "the propriety of thedistribution of [any attorney's fee] award is an issue moreappropriately addressed by state court." Benitez, 888 F.2d at934.
It is not the province of this court to act as plaintiff'sadvocate and research and advise her of the law so that she cantailor or increase a request for attorney's fees. This isparticularly true where, as here, public funds are involved.See generally Foley v. City of Lowell, 948 F.2d 10, 19 (lstCir. 1991) ("where public funds are involved . . . the court hasa duty to consider the application critically to ensure overallfairness"). Moreover, this court has already issued oneprocedural order informing plaintiff of the requirement todocument her requests. Accordingly, this court will not increasethe requested amount of $5,716.87, which plaintiff has alreadypaid Attorney Kaplan, to the amount of $8,765, which encompassesthe additional, remaining 60.96 hours of Attorney Kaplan'sunpaid time at a rate of $50/hour.
36. Defendants did oppose Attorney Kaplan's request. AttorneyKaplan's invoices also include charges for postage, constablefees, messenger fees, local transportation, the filing fee,courier services, court reporting fees for depositions and themediation fee. These expenses total $5,815.86. The filing fee isa reimbursable cost under section 1920. The remaining expensesare reasonable and customary "out-of-pocket expenses incurred bycounsel . . . which are customarily understood as `attorney'sfees.'" Data General Corp. v. Grumman Sys. Support Corp.,825 F. Supp. at 367. Such "out-of-pocket expenses" may include suchitems as "courier service, computer research, local travel,meals, telephone, postage, and parking." Data General Corp. v.Grumman Sys. Support Corp., 825 F. Supp. at 368; accord Pinkhamv. Camex, Inc., 84 F.3d 292, 294-295 (8th Cir. 1996) (costs forlong distance telephone, facsimile transmissions, messenger andexpress mail services are reimbursable as "out-of-pocketexpenses of the kind normally charged to clients by attorneys");see also Johnson v. Mortham, 950 F. Supp. 1117, 1126-1127 & n.11 (N.D.Fl. 1996) (reasonable costs and allowable expenses ofattorney include "reproduction expenses, telephone expenses ofthe attorney, travel time and expenses of the attorney, andpostage"); Chicago Professional Sports Ltd. Partnership v.National Basketball Assoc., 1992 WL 584077 at *3(N.D.Ill.Dec.21, 1992) (out-of-pocket expenses may include"telecopy charges"). Court reporting services for the identifieddepositions are recoverable under Title VII. See Hemmings v.Tidyman's Inc., 285 F.3d 1174, 1200 (9th Cir. 2002)(recoverable costs under Title VII may include depositioncosts). Given the liberal interpretation afforded chapter 151B,Mass. Gen. L. ch. 151B, § 9, ¶ 1, this court finds that sectionnine's award of "reasonable attorney's fees and costs," Mass.Gen. L. ch. 151B, § 9, ¶ 3, would include these items. Also inlight of the statute's liberal construction, the inability todetermine what expenses plaintiff paid for in the invoices(except for the mediation fee expense discussed infra) and,thus, what expenses she includes in the $5,716.87 requestedamount for Attorney Kaplan's services does not mandate denyingthe request. There are more than sufficient hours to support therequested amount and all of the hours are reasonable andnecessary as are the requested expenses.