Opinion
19-cv-07601 (ALC) (VF)
10-05-2023
SU PING YU, on behalf of herself and all others others similarly situated, Plaintiff, v. SHANGHAI DUMPLING, INC. et al., Defendants.
TO: THE HONORABLE ANDREW L. CARTER, JR., United States District Judge
REPORT & RECOMMENDATION
VALERIE FIGUEREDO, UNITED STATES MAGISTRATE JUDGE
Plaintiff Su Ping Yu commenced this age-discrimination action against six defendants: Shanghai Dumpling Inc. (“Shanghai Dumpling”); Shanghai Soup Dumpling Inc. (“Shanghai Soup Dumpling”); Shanghai Cafe Deluxe, Inc. (“Shanghai Cafe Deluxe”); Yili Weng; Ping Lin; and Xinsheng Gu (collectively, “Defendants”). Plaintiff seeks compensatory damages, liquidated damages, punitive damages, and emotional distress damages for Defendants' violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., the New York State Human Rights Law (“NYSHRL”), NY Exec. § 290 et seq., and the New York City Human Rights Law (“NYCHRL”), NYC Admin. Code § 8-101 et seq.
On May 30, 2023, the Honorable Andrew L. Carter, Jr. granted default judgment on Plaintiff's claims under the ADEA, NYSHRL, and the NYCHRL to Defendants Shanghai Dumpling, Shanghai Soup Dumpling, and Shanghai Cafe Deluxe. Judge Carter also granted default judgment against Defendants Weng and Gu for Plaintiff's claims under the NYSHRL and NYCHRL. Subsequently, the matter was referred to the undersigned for an inquest on damages. Defendants have not filed an opposition to Plaintiff's motion for default judgment or otherwise responded to Plaintiff's submissions in support of damages. For the reasons that follow, I recommend that damages and attorneys' fees be awarded to Plaintiff in the amounts outlined herein.
FACTUAL AND PROCEDURAL BACKGROUND
The facts recounted herein are established by the allegations in the complaint, which are deemed admitted except as to damages, because of Defendants' default. See Finkel v. Romanowicz, 577 F.3d 79, 81-84 (2d Cir. 2009). Additionally, some the facts recounted herein are also established by Plaintiff's sworn affidavit, which she submitted in support of her motion for default judgment. See ECF No. 143.
Plaintiff Su Ping Yu, a then 55-year-old woman, was employed by Shanghai Cafe Deluxe as a waitress from around January 2006 until March 27, 2018. See ECF No. 1, ¶¶ 8, 31 (“Compl”); see also ECF No. 143, ¶3 (“Yu Aff.”). Defendant Shanghai Cafe Deluxe is a New York State corporation, with 20 or more employees, located at 100 Mott Street in Manhattan. Compl. ¶¶ 13-14. Defendants Shanghai Soup Dumpling and Shanghai Dumpling are the successors of Shanghai Cafe Deluxe. Id. ¶¶ 11-12, 29. Throughout the relevant period, the owners and operators of Shanghai Cafe Deluxe, individual defendants Yili Weng and Xinsheng Gu, supervised Plaintiff's work at the restaurant. Id. ¶¶ 16-20, 25-27.
In her complaint, Plaintiff also asserted claims against Defendant Ping Lin. The Court, however, denied Plaintiff's motion for default judgment as to Defendant Lin, concluding that the allegations in the complaint did not demonstrate that Lin “actively participated in discriminatory conduct.” See ECF No. 148 at 12.
Plaintiff worked for Defendants for 13 years, as a waitress, and “excelled at her job.” Id. ¶¶ 8, 31-32. In March 2016, Plaintiff overheard Defendant Gu and a chef at the restaurant speaking about a co-worker, Cindy Chen. Id. ¶¶ 37-38; see also Yu Aff. ¶¶ 23-33. Plaintiff alleges that Gu said to Plaintiff that new young waitresses were replacements for Chen and further stated, “Now we continue to employ young employees only, not the old ones anymore,” in reference to Chen. Compl. ¶¶ 38-42. Plaintiff's co-worker, Chen, was fired by Defendants and subsequently filed an age-discrimination claim. Id. ¶¶ 41, 43. On January 3, 2018, Plaintiff provided an affidavit in support of Chen's age-discrimination claims. Id. ¶ 43; see also Yu Aff ¶¶ 34-35.
On March 27, 2018, Shanghai Cafe Deluxe suffered a gas leak, which forced the restaurant to close. Id. ¶¶ 45-46. Defendant Weng told Plaintiff that she would be called back to work once the restaurant reopened. Id. ¶ 46. When the restaurant reopened on December 22, 2018, Plaintiff and her coworker, Xingfen Zhou, who was then 58 years old, were the only employees of the restaurant who were not called back to work. Id. ¶ 47. Defendants hired a new employee to take over Plaintiff's position. Id. ¶ 49.
The complaint alleges eight causes of action: (1) an age-discrimination claim under the ADEA against the corporate defendants; (2) a retaliation claim under the ADEA against the corporate defendants; (3) an age-discrimination claim under the NYSHRL against the corporate defendants; (4) a retaliation claim under the NYSHRL against the corporate defendants; and (5) an age-discrimination claim under the NYCHRL against the corporate defendants; (6) an age discrimination claim under the NYSHRL against the individual defendants; (7) an age discrimination claim under the NYCHRL against the individual defendants; and (8) a retaliation claim under the NYCHRL against the individual defendants. Compl. ¶¶ 52-87. I assume the reader's familiarity with the procedural background of this action through May 30, 2023, which is recounted in my prior Report and Recommendation filed on August 22, 2022, as well as in Judge Carter's Opinion granting default judgment, filed on May 30, 2023. See ECF No. 132 at 25; ECF No. 148 at 3.
On May 30, 2023, Judge Carter granted default judgment against Shanghai Cafe Deluxe, Shanghai Dumpling, and Shanghai Soup Dumpling on Plaintiff's claims for unlawful employment discrimination and retaliation in violation of the ADEA, the NYSHRL, and the NYCHRL. ECF No. 148 at 1, 4, 9-11. In addition, the court granted default judgment against Defendant Weng on Yu's retaliation claim in violation of the NYCHRL and against Defendant Gu on Yu's age discrimination and retaliation claims in violation of the NYSHRL and NYCHRL. Id. at 1, 12. The court did not find Defendant Lin individually liable. Id. at 12. To date, Defendants have not filed any opposition to Yu's damages submissions.
DISCUSSION
In light of Defendants' default, the Court accepts as true the well-pleaded allegations in the Complaint, with the exception of those allegations relating to damages. See, e.g., Union of Orthodox Jewish Congregations of Am. v. Royal Food Distribs. LLC, 665 F.Supp.2d 434, 436 (S.D.N.Y. 2009) (“When the Court enters a default judgment, as regards liability it must accept as true all of the factual allegations of the complaint, but the amount of damages are not deemed true.”) (internal citations, alterations, and quotation marks omitted). As to damages, a district court must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.1999) (citation omitted). This inquiry requires the district court to: (1) “determin[e] the proper rule for calculating damages on ... a claim” and (2) “assess[ ] plaintiff's evidence supporting the damages to be determined under this rule.” Id.
Federal Rule of Civil Procedure 55(b)(2) “allows but does not require” the district court to conduct a hearing on the damages amount. Bricklayers and Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (“[T]he court may conduct such hearings or order such references as it deems necessary and proper.”) (citation and internal quotation marks omitted); see also Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found, Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012). Yu's submissions have not been contested, and the submissions provide all the information needed to determine her damages. As such, a hearing on the damages is not necessary.
A. Plaintiff's Damages
No party has requested a hearing on the issue of damages and Defendants have not submitted any written materials. The Court has thus conducted its inquest based solely on the materials Plaintiff submitted in support of her request for damages. See Cement & Concrete Workers Dist. Council Welfare Fund, 699 F.3d at 234 (“[A] district court may determine there is sufficient evidence either based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence.”) (citations omitted). Plaintiff has the burden of establishing her entitlement to recovery and must do so “to a reasonable certainty.” See Santiago v. Crown Heights Ctr. for Nursing & Rehabilitation, No. 15-CV-4381 (DLI) (CLP), 2017 WL 9482107, at *17 (E.D.N.Y. Feb. 24, 2017), report and recommendation adopted, 2017 WL 4410807 (E.D.N.Y. Sept. 30, 2017) (citation and quotation marks omitted). Plaintiff filed an affidavit attesting to the circumstances of her employment and termination, along with an affidavit from another waitress at Shanghai Cafe Deluxe, Cindy Chen. See ECF Nos. 142-43. Plaintiff also submitted a memorandum of law in support of her motion for default judgment and a declaration from her attorney, John Troy, in support of her request for an award of attorneys' fees and costs. See ECF Nos. 141, 144. All of Plaintiff's submissions for purposes of the instant motion were served on Defendants on February 17, 2023. ECF No. 147. Defendants did not respond to Plaintiff's motion or contest the damages she seeks, and nor did Defendants respond to the Court's entry of Default Judgment.
1. Back pay
The ADEA authorizes courts to “grant such legal or equitable relief as may be appropriate to effectuate [its] purposes,” including back pay, and, in cases of willful violations, liquidated damages equal to the amount of any back pay award. 29 U.S.C. § 626(b); see also Belizaire v. RAV Investigative & Sec. Servs. Ltd., 61 F.Supp.3d 336, 362 (S.D.N.Y. 2014). A back pay award is intended “to restore the employee to the status quo [she] would have enjoyed if the discriminatory discharge had not taken place.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 166 (2d Cir. 1998) (citation and quotation marks omitted). Consequently, an award of back pay should be based on what the plaintiff would have earned had she not been terminated. See Id. The NYSHRL and the NYCHRL also permit an award of back pay from the date of termination until the date of judgment. See Santiago, 2017 WL 9482107, at *18; Tatas v. Ali Bab's Terrace, Inc., No. 19-CV-10595 (ER), 2022 WL 993566, at *15 (S.D.N.Y. Mar. 31, 2022).
A plaintiff who was unlawfully terminated “has a duty to mitigate [her] damages.” Press v. Concord Mortg. Corp., No. 08-CV-2294 (PKC) (GWG), 2009 WL 6758998, at *5 (S.D.N.Y. Dec. 7, 2009) (collecting cases); Tatas, 2022 WL 993566, at *15. “Any back pay award must be reduced by plaintiff's interim earnings,” which are calculated for the period of time between the plaintiff's termination and the court's entry of judgment. Taddeo v. Ruggiero Farenga, Inc., 102 F.Supp.2d 197, 198 (S.D.N.Y. 2000) (citations omitted). In an inquest, courts in this District generally award back pay through the date of default judgment. See, e.g., Manson v. Friedberg, No. 08-CV-3890 (RO), 2013 WL 2896971, at *6 (S.D.N.Y. June 13, 2013); Becerril v. E. Bronx NAACP Child Dev. Ctr., No. 08-CV-10283 (PAC) (KNF), 2009 WL 2611950, at *3 (S.D.N.Y. Aug. 18, 2009), report and recommendation adopted, 2009 WL 2972992 (Sept. 17, 2009).
Plaintiff was earning $720 per week, comprised of $120 in flat pay and about $600 in tips, prior to her termination from Shanghai Cafe Deluxe.Yu Aff. ¶¶ 16, 19. Plaintiff's last day of work at Shanghai Cafe Deluxe was March 27, 2018. Id. ¶¶ 42-43. Between Plaintiff's last day of work and the Court's entry of default judgment on May 30, 2023, 270 weeks elapsed. At her weekly rate of $720, Plaintiff would have earned $194,400 over that time period.
Plaintiff submitted paystubs that she received from Shanghai Cafe Deluxe from February 22, 2015, through March 18, 2018. See Declaration of John Troy, ECF No. 141 (“Troy Decl.”) at Ex. 8. Plaintiff states in her affidavit that “neither the net amounts on the paycheck[s] and paystub[s] nor the gross amount on the paystub[s] amounted to [her] actual pay rate.” Yu Aff. ¶ 17.
Plaintiff sought employment soon after the gas leak caused Shanghai Cafe Deluxe to close, because she “knew that it would take a long time for [the restaurant] to reopen.” Yu Aff. ¶ 55. From June 4, 2018, until September 2, 2018, Yu worked at Deluxe Green Bo. Id. ¶ 57. There, she worked two days a week, eight hours each day. Id. ¶ 58. During her time employed at Deluxe Green Bo, Plaintiff received only two paystubs: one for $450 on June 17, 2018, and another for $226.05 on September 2, 2018. Id. ¶ 59. Although Plaintiff does not remember her base salary, she estimates that she received $100 per day in tips. Id. Assuming Plaintiff earned $200 a week in tips and, given that she worked 12 weeks at Deluxe Green Bo, Plaintiff earned approximately $2400. Plaintiff left her job at Deluxe Green Bo to visit her sick mother in China, where she remained from September 8, 2018, until October 7, 2018. Yu Aff. ¶ 60.
Because Plaintiff cannot remember her base pay, this number was determined by multiplying the amount she earned in tips by the number of weeks she was employed.
For three days, between March 19, 2019, and March 21, 2019, Plaintiff worked as a buffet server at the John Hotel. Yu Aff. ¶¶ 62-63. She worked 6 hours per day at a rate of $13 per hour. Id. ¶ 64. Plaintiff stopped working there after three days “because the hours were crazy.” Id. ¶ 65. During her three days, Plaintiff earned $234.
Soon after, on March 25, 2019, Plaintiff started working as a packer at Ollie's 42nd Street. Yu Aff. ¶ 66. She worked there until May 5, 2019, when the person whom she was temporarily replacing returned to work. Id. ¶ 65, 69. Plaintiff earned an hourly wage of $15 and worked 16 hours per week. Id. ¶¶ 67-68. Plaintiff was mostly paid in cash, and she received one paystub for $480 on May 5, 2019. Id. ¶ 68. Plaintiff earned $1,440 during the six weeks that she was employed at Ollie's 42nd Street.
This number was determined by multiplying the number of hours per week Plaintiff was employed at Ollie's (16 hours), by her hourly rate ($15), and multiplying the result (240) by the number of weeks Plaintiff was employed at Ollie's 42nd Street (6 weeks).
From May 8, 2019, until June 9, 2019, Plaintiff went to China to visit her sick mother. Yu Aff. ¶ 70. Plaintiff returned to China on August 21, 2019, to care for her mother, who passed away in September 2019. Id. ¶ 71. Plaintiff returned to the United States on October 10, 2019. Id.
On November 11, 2019, Plaintiff began working as a cashier, shelf stocker, and sandwich maker at Fay Da Bakery. Id. ¶ 72. Plaintiff has worked at Fay Da Bakery continuously since then, except from March 22, 2020, until June 21, 2020, when the Coronavirus shutdown the business and prevented her from working. Id. ¶ 74. Plaintiff worked for 172 weeks between November 11, 2019, and the Court's entry of default judgment on May 30, 2023, not including the 13 weeks that she was unable to work due to the COVID-19 shutdown. Plaintiff worked between five and six hours per day, five days per week, at a rate of $15 per hour. Id. ¶ 73. Plaintiff earned a total of $64,500 while an employee of Fay Da Bakery.
This amount was calculated by determining Plaintiff's weekly pay. Assuming Plaintiff worked five days a week, five hours each day, at $15 per hour, Plaintiff earned $375 per week. Plaintiff's weekly pay ($375) was then multiplied by the total number of weeks (172) that Plaintiff worked at Fay Da Bakery.
During the Coronavirus shutdown, Plaintiff earned $370 per week from Aliah Home to care for her mother-in-law. Yu Aff. ¶ 75. Plaintiff submitted a spreadsheet detailing the amount of weekly pay she received while working for Alia Health between April 24, 2020, and August 28, 2020, and she submitted her paystubs as well. See ECF Nos. 141-12, 141-13, 141-15. According to the paystubs, Plaintiff earned $5,184.84 while an employee of Alia Health.
Had Plaintiff continued working at Shanghai Cafe Deluxe, she would have earned $194,400. Plaintiff earned $73,758.84 from the various jobs she worked following her termination from Shanghai Cafe Deluxe. As such, Plaintiff is entitled to an award of back pay of $120,641.16. See Whitten v. Cross Garage Corp., No. 00-CV-5333 (JSM) (FM), 2003 WL 21744088, at *4 (S.D.N.Y. July 9, 2003) (calculating back pay by multiplying weekly gross wages by number of weeks since termination to date of entry of judgment).
2. Liquidated and Punitive Damages
Plaintiff seeks liquidated damages under the ADEA and punitive damages under the NYSHRL and NYCHRL. See Compl. ¶¶ G, J, K (Prayer for Relief). In her Memorandum of Law in Support of Default Judgment, Plaintiff requests an award of liquidated damages under the ADEA equal to her back pay award, or, alternatively, an award of punitive damages under the NYSHRL or NYCHRL equal to four times the amount of her back pay award. See ECF No. 144 at 17.
Under the ADEA, liquidated damages in an amount equal to a plaintiff's award of back pay and benefits is appropriate where the statutory violation was “willful.” See U.S.C. § 626(b); McGinty v. State, 193 F.3d 64, 69 (2d Cir. 1999). Willfulness requires a showing that the employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” Fink v. City of New York, 129 F.Supp.2d 511, 523 (E.D.N.Y. 2001) (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126 (1985)) (quotation marks omitted); see also McGinty, 193 F.3d at 69. If an employer “wholly disregards the law . . . without making any reasonable effort to determine whether the plan he is following would constitute a violation of the law,” then his actions are considered willful and subject to the liquidated damages provision of the ADEA. Trans World Airlines, Inc., 469 U.S. at 126 (citations and quotation marks omitted).
Plaintiff's allegations suggest willfulness on the part of Defendants. First, Plaintiff attested that Defendant Gu told her that Shanghai Cafe Deluxe would “employ young employees only” and “not old ones anymore” when she asked whether her coworker Cindy Chen would return to work. Yu Aff. ¶¶ 23-28; see also Compl. ¶¶ 41-42. Plaintiff also attests that “two new waitresses in their 20s” were hired to replace Chen, and that herself and another coworker over the age of 50 were the only employees not asked to return to work when the restaurant reopened. Yu Aff. ¶¶ 23, 52; see also Compl. ¶ 47. In addition, in January 2018, Plaintiff submitted an affidavit in support of Chen's age-discrimination lawsuit against the Defendants. Yu Aff. ¶ 34. Shortly following the filing of the affidavit by Plaintiff, she attests that Defendant Weng began to “pick on” her, including by screaming at her when she spoke to customers and assigning another employee to “keep an eye on [her].” Id. ¶¶ 36-38. Collectively, the allegations in the complaint, and the statements in Plaintiff's affidavit suggest willfulness on the part of Defendants. At the very least, the statement made by Gu, who was responsible for hiring and firing employees (Compl. ¶¶ 25-26), indicates a reckless disregard for the ADEA and the prohibition against terminating an employee because of her age. As such, I recommend awarding Plaintiff liquidated damages under the ADEA in the amount of $120,641.16, which is equal to her award of back pay.
3. Emotional Distress
Plaintiff seeks an award of $65,000 in emotional distress damages. See ECF No. 148 at 13 n.7. Courts have identified three categories of emotional distress or mental anguish claims. In the “garden-variety” emotional distress cases, a plaintiff describes her emotional distress in “vague or conclusory terms.” Rainone v. Potter, 388 F.Supp.2d 120, 122 (E.D.N.Y. 2005). “Significant” or “substantial” emotional distress claims “consist of more substantial harm, usually evidenced through medical testimony or documentation.” Becerril 2009 WL 2611950, at *6 (S.D.N.Y. Aug. 18, 2009) (citation omitted). “‘Egregious' emotional distress claims . . . ‘have only been warranted where the discriminatory conduct was outrageous and shocking or where the physical health of the plaintiff was significantly affected.'” Id. (citation omitted).
Following her termination, Plaintiff “lost standing in front of [her] mother-in-law,” who questioned why Plaintiff's coworkers had not also been terminated. Yu Aff. ¶¶ 77-78. She also “began to fight” with her husband, who “echo[ed] his mother's questioning.” Id. ¶ 79. Although Plaintiff claims that she lost sleep as a result of the “family discord” that followed her termination, Plaintiff did not seek medical treatment. Id. ¶¶ 77-81. At most, Plaintiff has provided evidence to support damages for only “garden variety” emotional distress.
In the “garden variety” emotional distress cases, “awards hover in the range of $5,000 to $30,000.” Kinneary v. City of N.Y., 536 F.Supp.2d 326, 331 (S.D.N.Y. 2008) (citing Bick v. City of N.Y., No. 95-CV-8781 (KMW) (MHD), 1998 WL 190283, at *25 (S.D.N.Y. Apr. 21, 1998)) (quotation marks omitted); accord Rainone, 388 F.Supp.2d at 122 ($5,000 to $35,000); Fowler v. N.Y. Transit Auth., No. 96-CV-6796 (JGK), 2001 WL 83228, at *13 (S.D.N.Y. Jan. 31, 2001) ($5,000 to $30,000) (citations omitted); Chen v. Shanghai Cafe Deluxe, Inc., No. 17-CV-2536 (VF), 2023 WL 2625791, at *8 (S.D.N.Y. Mar. 24, 2023) ($5,000 to $30,000) (citations omitted). In Kinneary, for example, the court remitted an award of $125,000 to $25,000, where the plaintiff claimed that he felt embarrassed and disappointed over losing his job, having to rely on the financial support of others, and having to remove his daughter from her school for financial reasons. 536 F.Supp.2d at 332. The court found it significant that plaintiff did not seek psychological or medical treatment or that any “particular life activities” were “curtailed” by his distress. Id.; see also Santiago, 2017 WL 9482107, at *23 (awarding $30,000 in emotional distress damages where plaintiff experienced “anxiety, stress, shame and embarrassment, and loss of self worth,” but did not seek medical treatment). In Chen v. Shanghai Cafe Deluxe, Inc., a case before this Court also involving an age-discrimination claim, the plaintiff claimed that her termination caused her embarrassment in her community and significant stress that resulted in loss of sleep. 2023 WL 2625791, at *8. Plaintiff received limited treatment for her insomnia, but “[did] not appear [to seek] continued psychiatric help.” Id. This Court found an award of $25,000 appropriate. Id.
Plaintiff makes similar claims of emotional distress as the plaintiffs in Kinneary and Chen. Following her termination, Plaintiff “lost standing” with her mother in law and fought with her husband because she no longer had a job. Yu Aff. ¶¶ 77-80. She lost sleep as a result of these conflicts, but it does not appear that Plaintiff sought medical or psychiatric treatment in connection with her loss of sleep. Id. ¶ 81. In light of this evidence, I recommend an award of $25,000 in damages for emotional distress.
4. Prejudgment Interest
Plaintiff requests an award of prejudgment interest, calculated at the rate of 9% per annum pursuant to CPLR § 5004. Compl. ¶ M (Prayer for Relief); see also ECF No. 144 at 1819. Prejudgment interest on an award of back pay is available under the ADEA. See Loeffler v. Frank, 486 U.S. 549, 557-58 (1988); Santiago, 2017 WL 9482107, at *24; see also 29 U.S.C. § 626(b). Interest on back pay may be awarded even when a punitive award (i.e., liquidated damages under the ADEA) is made. See Reichman v. Bonsignore, Brignati & Mazzotta, P.C., 818 F.2d 278, 282 (2d Cir. 1987). Additionally, prejudgment interest may also be awarded on a plaintiff's award of compensatory damages for emotional distress. See Robinson v. Instructional Systems, Inc., 80 F.Supp.2d 203, 208 (S.D.N.Y. 2000) (calculating prejudgment interest for backpay and compensatory damages). As such, I recommend an award of prejudgment interest based on $145,641.16, which represents the sum of Plaintiff's award of backpay and emotional distress damages.
The decision of which rate of interest to apply for prejudgment interest is a “‘[m]atter[] confided to the district court's broad discretion.'” Endico Potatoes, Inc. v. CIT Group/Factoring, Inc., 67 F.3d 1063, 1071 (2d Cir. 1995) (quoting Com. Union Assurance Co. v. Milken, 17 F.3d 608, 613-14 (2d Cir. 1994); see also Chandler v. Bombardier Cap., Inc., 44 F.3d 80, 84 (2d Cir. 1994). Courts hearing federal employment-discrimination cases in this Circuit often apply the federal rate of interest under 28 U.S.C. § 1961 when awarding prejudgment interest, rather than the rate of nine percent under New York law. See Hogan v. Gen. Elec. Co., 144 F.Supp.2d 138, 141 (N.D.N.Y. 2001) (awarding prejudgment interest under the ADEA according to the rates of interest referred to in 28 U.S.C. § 1961); Jowers v. DME Interactive Holdings, Inc., No. 00-CV-4753 (LTS) (KNF), 2006 WL 1408671, at *11 (S.D.N.Y. May 22, 2006) (awarding prejudgment interest on plaintiff's Section 1981 award based on the Treasury bill yield rate referred to in 28 U.S.C. § 1961); Fitzgerald v. Bondfactor Co., LLC, No. 15-CV-6796 (CM) (FM), 2016 WL 4939082, at *2 (S.D.N.Y. Aug. 31, 2016) (holding that “[t]he Court in its discretion will allow post-award, prejudgment interest but at the federal rate under 28 U.S.C. § 1961, calculated on the published treasury yield.”) (citations omitted). Even when there are violations of both state and federal law, as here, “it is common practice in the Second Circuit to apply the federal interest rate pursuant to 28 U.S.C. § 1961(a).” Cioffi v. New York Cmty. Bank, 465 F.Supp.2d 202, 222 (E.D.N.Y. 2006) (quoting Collins v. Suffolk County Police Dept., 349 F.Supp.2d 559, 565 (E.D.N.Y. 2004)), vacated on other grounds, 2009 WL 2596885 (E.D.N.Y. Jan. 7, 2009). Accordingly, I recommend applying the rate of interest referred to in 28 U.S.C. § 1961 to calculate prejudgment interest on Plaintiff's awards.
To calculate prejudgment interest, I recommend applying the methodology used to calculate the award of prejudgment interest in Robinson. See 80 F.Supp.2d at 208. That methodology serves the objective of fully compensating Plaintiff. First, the award should be divided pro rata over the appropriate time period: from the date of Plaintiff's termination, March 27, 2018, until the date of entry of this order. Second, once the award is divided, the average annual United States treasury bill rate of interest, referred to in 28 U.S.C. § 1961, will be applied. Finally, the interest will be compounded annually to ensure that Plaintiff is fully compensated. See Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 144 (2d Cir. 1993) (“Given that the purpose of back pay is to make the plaintiff whole, it can only be achieved if interest is compounded.”).
5. Post-Judgment Interest
Plaintiff seeks an award of post-judgment interest. Compl. ¶ M (Prayer for Relief). A plaintiff is “entitled to post-judgment interest on all money awards as a matter of right.” Tacuri v. Nithin Constr. Co., No. 14-CV-2908 (CBA) (RER), 2015 WL 790060, at *12 (E.D.N.Y. Feb. 24, 2015) (citations omitted); see also Santiago, 2017 WL 9482107, at *26 (noting that postjudgment interest applies to an award of compensatory and punitive damages) (citations omitted). Under 28 U.S.C. § 1961(a), “an award of post-judgment interest is mandatory in any civil case where money damages are recovered.” See Espinoza v. Broadway Pizza & Rest. Corp., No. 17-CV-7995 (RA) (KHP), 2021 WL 7903991, at *14 (S.D.N.Y. Nov. 18, 2021), report and recommendation adopted, 2022 WL 977068 (S.D.N.Y. Mar. 31, 2022) (citations omitted). Accordingly, Plaintiff is entitled to an award of post-judgment interest, to be calculated from the date that the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. See Begum v. Ariba Discount, Inc., No. 12-CV-6620 (DLC), 2015 WL 223780, at *8 (S.D.N.Y. Jan. 16, 2015) (awarding post-judgment interest).
B. Attorneys' Fees & Costs
The ADEA authorizes an award of attorneys' fees for the prevailing plaintiff. See Vernon v. Port. Auth. of N.Y. and N.J., 220 F.Supp.2d 223, 228 (S.D.N.Y. 2002). Plaintiff was represented by John Troy of Troy Law, PLLC. See ECF No. 141, Decl. of John Troy (“Troy Decl.”). Plaintiff seeks an award of attorneys' fees in the amount of $21,228, for 55.50 hours of work by Troy and members of his firm. See Id. ¶ 74; see also id. Ex. 16. Plaintiff also seeks an award of costs in the amount of $413.07. Id. ¶ 74. Plaintiff's counsel submitted billing records showing the date on which services were performed, the time expended, and a description of the services completed to support Plaintiff's application for attorneys' fees. See Troy Decl., Ex. 16. Troy attests that the records are contemporaneous. Troy Decl. ¶¶ 27-28.
District courts exercise “‘considerable discretion' in awarding attorneys' fees.” See D.B. ex rel. S.B. v. New York City Dep't of Educ., No. 18-CV-7898 (AT) (KHP), 2019 WL 6831506, at *1 (S.D.N.Y. Apr. 22, 2019), report and recommendation adopted, 2019 WL 4565128 (S.D.N.Y. Sept. 20, 2019) (citation and internal quotation marks omitted); see also Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 420 (2d Cir. 2010); Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008). Attorneys' fee awards are typically determined using the lodestar approach, or “the product of a reasonable hourly rate and the reasonable number of hours required by the case.” Millea v. Metro-North R.R., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill, 522 F.3d at 183); see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010). “The reasonable hourly rate is the rate a paying client would be willing to pay,” bearing in mind that “a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 190.
In assessing whether the number of hours billed by the attorney is reasonable, courts consider “whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) (citation omitted). “Hours that are excessive, redundant, or otherwise unnecessary, are to be excluded . . . and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application.” Kirsch, 148 F.3d at 173 (internal citations and quotation marks omitted); accord Alicea v. City of New York, 272 F.Supp.3d 603, 608-09 (S.D.N.Y. 2017). “The Court also looks at the nature of the legal matter and reason for the fee award in considering what is a reasonable rate and reasonable time spent on a matter.” Kastrati v. M.E.G. Rest. Enter. Ltd., No. 1:21-CV-00481 (KHP), 2023 WL 180043, at *3 (S.D.N.Y. Jan. 13, 2023). A complex case, which requires that an attorney have particular skills and experience, or cases that require retaining a firm with the resources needed to effectively prosecute the case, may command higher hourly rates. Arbor Hill, 522 F.3d at 185-87. It is the plaintiff's burden to produce “contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done.” Scott v. City of New York, 626 F.3d 130, 133 (2d Cir. 2010) (citation omitted); see also Fisher v. S.D. Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020).
1. Reasonable Hourly Rate
Plaintiff seeks fees on behalf of three attorneys at Troy Law: John Troy, Aaron Schweitzer, and Leanghour Lim. See Troy Decl. ¶¶ 47, 63, 70, 74. Troy, the firm's named partner and the attorney of record for Plaintiff, seeks a fee of $650. Id. ¶¶ 31, 47, 74. Schweitzer, the “managing associate” at the firm, was admitted to practice in New York in 2018 and seeks a fee of $400 per hour. Id. ¶¶ 48, 50, 63, 74. Lim, a “junior associate” who was admitted to the bar in New York in 2019, seeks a fee of $250 per hour. Id. ¶¶ 65, 70, 74. Plaintiff also seeks an award of fees for work performed by Preethi Kilaru, a “managing clerk” at the firm. Id. ¶ 71, 74. Kilaru, who has an LLM and previously worked as a “legal assistant” and “advisor,” requests a fee of $200 per hour. Id. ¶¶ 71, 73-74.
As has been documented on numerous occasions by other courts in this District, courts “have balked at the sort of rates requested” by members of the Troy Law Firm. See Garcia v. Francis Gen. Constr. Inc., No. 20-CV-4323 (JPC), 2022 WL 2698434 at *7 (S.D.N.Y. July 12, 2022) (collecting cases); see also Chen v. Marvel Food Servs. LLC, No. 15-CV-06206 (JMA) (AYS), 2022 WL 4226098, at *4-5 (E.D.N.Y. Sept. 9, 2022) (collecting cases). “In light of the consistently poor quality of [John Troy's] work,” courts have repeatedly reduced the rates requested by him. See, e.g., Rodpracha v. Pongsri Thai Rest. Corp., No. 14-CV-02451 (DF), 2021 WL 6205861, at *3 (S.D.N.Y. Dec. 29, 2021). Moreover, this case did not involve novel or difficult questions, “a factor that also goes to the time, labor, and skill that was required of counsel.” Olaechea v. City of New York, 17-CV-4797 (RA), 2022 WL 3211424, at *14 (S.D.N.Y. Aug. 9, 2022) (citation omitted).
The requested rates for the three attorneys are excessive, given the straightforward nature of this case and the fact that the Defendants defaulted. As such, I recommend an award based on the following hourly rates: $325 per hour for John Troy, $175 per hour for Aaron Schweitzer, $125 per hour for Leanghour Lim, and $75 per hour for Preethi Kilaru. These rates are consistent with the hourly rates approved by courts in this Circuit for work performed by those individuals in wage-and-hour cases. See, e.g., Chen, 2023 WL 2625791, at *11 (reasonable rate for Troy, Schweitzer, and Kilaru); Singh v. Meadow Hill Mobile Inc., No. 20-CV-3853 (CS) (AEK), 2021 WL 3862665, at *16 (S.D.N.Y. Aug. 29, 2021) (reasonable rate for Troy, Schweitzer, and Kilaru); Garcia, 2022 WL 2698434 at *8 (reasonable rate for Troy, Schweitzer, and Kilaru); Lu Wan v. YWL USA Inc., No. 18-CV-10334 (CS), 2021 WL 1905036, at *6 (S.D.N.Y. May 12, 2021) (reasonable rate for Troy, Schweitzer, Lim, and Kilaru); Chen v. Shanghai Cafe Deluxe, Inc., No. 16-CV-4790 (VF), 2023 WL 2401376, at *16 (S.D.N.Y. Mar. 8, 2023) (reasonable rate for Lim); Zang v. Daxi Sichuan, Inc., No. 18-CV-06910 (DG) (SJB), 2023 WL 2305934, at *4 (E.D.N.Y. Mar. 1, 2023) (reasonable rate for Lim and Kilaru).
2. Hours Expended
Plaintiff's counsel billed for 55.5 hours of work, performed between January 21, 2020, and the entry of default judgment on May 30, 2023. See Troy Decl. ¶ 74; see also id. Troy Decl., Ex. 16. “In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant or otherwise unnecessary hours,” Quarantino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999), as well as time entries that “are vague or otherwise inadequate to enable the court to determine the reasonableness of the work performed,” Ge Chun Wen v. Hair Party 24 Hours Inc., No. 15-CV-10186 (ER)(DF), 2021 WL 3375615, at *14 (S.D.N.Y. May 17, 2021) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). To calculate reasonable hours expended in litigating a case, “[a] district court may.. .use a percentage deduction as a practical means of trimming fat.” McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006) (citation and internal quotation marks omitted); see also Green v. City of New York, 403 Fed.Appx. 626, 630 (2d Cir. 2010) (recognizing “the authority of district courts to make across-the-board percentage cuts in hours as a practical means of trimming fat from a fee application”) (citation and internal question marks omitted).
On January 16, 2020, the Court issued an order, explaining that the conduct by Plaintiff's counsel in refusing to consent to proceed before the magistrate judge was “entirely frivolous” and “needlessly multiplied proceedings.” See ECF No. 35. Consequently, the Court ordered that, should Plaintiff be entitled to an award of attorneys' fees, such award should exclude fees for any work performed between the commencement of the action, on August 17, 2019, and the date of the order, January 16, 2020. Id. Plaintiff's counsel submitted their billing records and the 55.50 hours of time for which counsel seeks fees do not account for any work performed prior to January 16, 2020. See Troy Decl., Ex. 16 (the 55.50 hours of time in the exhibit covers the period from January 21, 2020, to December 22, 2022).
Here, the billing records contain various facially unreasonable time entries. For instance, John Troy, the named partner at the firm, billed 4 hours to drafting the “Certificate of Default,” a straightforward one-page form that could have been prepared by a junior attorney. See Troy Decl., Ex. 16 at 3; see also Ge Chun Wen, 2021 WL 3375615, at *21 (reducing requested hourly rate where Troy performed work “that could have been handled by more junior lawyers”) (citations omitted). Troy also billed time for having to “Review Clerk's Default Certificate,” again, a task that could have been performed by a more junior attorney. Troy Decl., Ex. 16 at 3. In addition, many of the time entries in the billing records “are too vague to allow for meaningful judicial scrutiny.” Ge Chun Wen, 2021 WL 3375615, at *23. For example, the time sheets include numerous entries with the description “ACDPT,” as well as entries that include no detail other than “case review.” Troy Decl., Ex. 16 at 3-5. Finally, Kilaru, a managing clerk at the firm, billed 1.33 hours of time to “Access, Download, and Review Entire Set of . . . Default Motion and Attorney Fee Application.” Id. at 3. But the default judgment motion was filed by Plaintiff so it is not clear why Plaintiff's own legal team would have to “access” and “download” the motion papers from ECF. Regardless, given that Kilaru is a managing clerk, it is also unclear why Kilaru would have to “review” the motion papers and application.
I recommend that the time charges be reduced by 10%. I thus recommend that Plaintiff receive an award of attorneys' fees in the amount of $8,626.94, as detailed in the chart below.
Individual
Hours Requested
Hours Awarded (reflecting a 10% reduction)
Requested Hourly Rate
Reasonable Hourly Rate
Total Fee Award
John Troy
12.58
11.322
$650
$325
$3,679.65
Aaron Schweitzer
22.49
20.241
$400
$175
$3,542.17
Leanghour Lim
0.58
0.522
$250
$125
$65.25
Preethi Kilaru
19.85
17.865
$200
$75
$1,339.87
TOTAL
55.50
49.95
-
-
$8,626.94
3. Costs
An employee who prevails in an employment discrimination case is entitled to recover costs. See Hogan v. Gen. Elec. Co., 144 F.Supp.2d 138, 143 (N.D.N.Y. 2001); Whitten, 2003 WL 21744088, at *7. “As with attorneys' fees, [a] requesting party must substantiate the request for costs.” Guo v. Tommy's Sushi, Inc., No. 14-CV-3964 (PAE), 2016 WL 452319, at *3 (S.D.N.Y. Feb. 5, 2016); see also Euceda v. Preesha Operating Corp., No. 14-CV-3143 (ADS) (SIL), 2017 WL 3084490, at *4 (E.D.N.Y. June 30, 2017), report and recommendation adopted, 2017 WL 3084408 (E.D.N.Y. July 18, 2017). “An award of costs ‘normally include[s] those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged [to] fee-paying clients.'” Fisher, 948 F.3d at 600 (quoting Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)).
Plaintiff seeks costs in the amount of $413.07. Troy Decl. ¶ 74. She seeks $400 for the case filing fee, see Troy Decl., Ex. 16 at 5, of which the Court can take judicial notice. See, e.g., Soto v. Los Corbaticas Deli Grocery II Corp., No. 18-CV-3602 (JGK) (JLC), 2018 WL 4844018, at *9 (S.D.N.Y. Oct. 5, 2018), report and recommendation adopted, 2018 WL 6173713 (S.D.N.Y. Nov. 23, 2018) (taking judicial notice of $400 filing fee); see also Chen, 2023 WL 2625791, at *13 (taking judicial notice of $400 filing fee).
Plaintiff also seeks $8.64 for “summons and complaint service print out,” $0.78 for “postage discovery demands,” $0.25 for “envelope discovery demands,” and $3.40 for “printing discovery demands.” Troy Decl., Ex. 16 at 5. Plaintiff did not provide any documentation to substantiate these costs, and thus she is not entitled to an award for these costs. See, e.g., Soto, 2018 WL 4844018, at *9 (declining award of process server fee in the amount of $195 where counsel did not provide documentation to support the amount requested); Acharya v. Solanki, 18-CV-8010 (MKV) (JLC), 2022 WL 1144696, at *9 (S.D.N.Y. Apr. 12, 2022) (declining cost award for $120 process server fees where fee amount was not substantiated); Chen, 2023 WL 2625791, at *13 (declining award of $1,023.85 for translation, postage, and transcript costs where no documentation was provided to substantiate the costs). I thus recommend that Plaintiff be awarded costs in the amount of $400.
CONCLUSION
For the reasons set forth above, I recommend that Plaintiff be awarded back pay, liquidated damages, and emotional distress damages in the amount of $266,282.32. Plaintiff is also entitled to an award of post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. Additionally, Plaintiff is entitled to an award of attorneys' fees in the amount of $8,626.94, and costs in the amount of $400. The Clerk of the Court is respectfully directed to calculate prejudgment interest on $145,641.16, which comprises the portion of Plaintiff's award attributable to back pay and emotional distress damages. Prejudgment interest should be calculated as explained on pages 13-14 of this Report and Recommendation, at the rate of interest referred to in 28 U.S.C. § 1961, from March 27, 208 through the date of entry of this order. Finally, Plaintiff is directed to serve a copy of this Order on Defendants and file proof of service of the same on the docket by no later than October 19, 2023.
SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable Andrew L. Carter, Jr. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).