The opinion of the court was delivered by: LINDBERG
Plaintiff, Emma Connolly, has moved for an award of $ 97,135.85 in costs and attorneys' fees from defendant National School Service, Inc. (NSB) pursuant to 42 U.S.C. § 2000e-5(k), under which a district court, "in its discretion, may allow the prevailing party . . . a reasonable attorney's fee . . . as part of the costs" in a Title VII action. This discretion is "appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." Dunning v. Simmons Airlines, Inc., 62 F.3d 863, 872 (7th Cir. 1995).
The parties in this case settled the matter for $ 10,000 on the day of trial. Plaintiff claims that she is therefore a prevailing party and entitled to costs and fees because she achieved success on "a significant issue in litigation which achieves some of the benefit sought in bringing the suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1982). A plaintiff who has settled a case instead of winning at trial may still be considered a prevailing party, as "one may prevail by persuading one's adversary to retire from the field." Stomper v. Amalgamated Transit Union, 27 F.3d 316, 317 (7th Cir. 1994). A prevailing plaintiff is one who has achieved some measure of success on the merits and can point to a resolution that has changed the legal relationship between itself and defendant. Farrar v. Hobby, 506 U.S. 103, 109-11, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992); Hewitt v. Helms, 482 U.S. 755, 760-61, 96 L. Ed. 2d 654, 107 S. Ct. 2672 (1987).
Defendant, National School Bus Service, Inc., objects to any award of fees and costs to plaintiff. While acknowledging the case law regarding awards of attorneys' fees in Title VII cases, defendant asserts that under certain circumstances, including those in this case, any award of fees is unjust. Hensley, 461 U.S. at 429. First, defendant asserts that plaintiff is a not prevailing party because she failed to succeed on the merits. Farrar, 506 U.S. at 109-11. To determine if a plaintiff who settles her case is indeed a prevailing party, the Seventh Circuit has developed a two-part test: "1) whether the lawsuit was causally linked to the relief obtained, and 2) whether the defendant acted gratuitously, that is, the lawsuit was frivolous, unreasonable or groundless." Fisher v. Kelly, 105 F.3d 350, 353 (internal citations and quotes omitted).
In support of its contention that plaintiff is not a prevailing party, defendant argues that the settlement she ultimately received was so far below her demand for damages that it is clear that she did not succeed on the merits of her claim. Defendant claims that the $ 10,000 it paid plaintiff in settlement was no more than the nuisance value of the case. The cost of settlement was simply less than that of trial and post-trial motions, which defendant estimated at more than $ 25,000, making settlement "gratuitous" on its part. Fisher, 105 F.3d at 353. However, plaintiff responds that her retaliation claim survived the court's ruling on defendant's motion for summary judgment and that the case was about to proceed to trial. This case differs in that respect from Fisher, where the parties had not proceeded to summary judgment and the defendant made an offer of judgment that plaintiff accepted. Id. The court found that the defendant had settled the case fairly early in the litigation without regard to the merits of the case. Id. The settlement here occurred after defendant filed a motion for summary judgment and the court ruled that the issue of retaliatory discharge would proceed to trial. In that sense, the settlement here was not gratuitous on defendant's part even though it was calculated to avoid additional litigation fees--all settlements are.
Even if a party prevails, the relief obtained may be technical or de minimis to the extent that attorneys' fees are unwarranted. To determine if this is so, the Seventh Circuit has set out a three-factor test that requires the court to consider: 1) the difference between the judgment recovered and the recovery sought; 2) the significance of the legal issue on which plaintiff prevailed; and 3) the public purpose served by the litigation. Johnson v. Lafayette Fire Fighters Assn., 51 F.3d 726, 731 (7th Cir. 1995). The "most critical factor" is the difference between the recovery sought and the award. See Farrar, 506 U.S. at 113 (award of $ 1 where plaintiffs requested $ 17 million). In her complaint, plaintiff requested compensatory damages of $ 30,000, reinstatement and attorneys' fees. Her pretrial memorandum also contained a $ 10,000 punitive damages demand. Compared to this demand, a $ 10,000 settlement is, according to defendant, de minimis. Defendant points out that it denied liability, it did not change its relationship with plaintiff, she was not reinstated and the company did not amend any company policy as a result of plaintiff's allegations or complaint. Neither party presented new legal theories in this case, making the public purpose served by the lawsuit minimal.
Plaintiff responds to defendant's criticisms by pointing out that although the settlement amount was $ 10,000, the parties also agreed that this amount did not include attorneys' fees, which the parties would litigate. Although the settlement figure was moderate, it was not tremendously out of proportion to the demand and it is above the nominal amounts courts have considered de minimis. See Bolden v. Carter, 1997 U.S. Dist. LEXIS 12896, 1997 WL 534342 (N.D.Ill.) (court denied attorneys' fees where plaintiff received $ 1 in nominal damages). The court finds that plaintiff received more than a de minimis settlement amount.
Next is the task of determining a reasonable fee. The starting point of this calculation is to arrive at a "lodestar figure." To do so, the court multiplies the hours reasonably spent on the case by each attorney's reasonable hourly rate. Bankston v. State of Illinois, 60 F.3d 1249, 1255 (7th Cir. 1995). The fact that the amount of attorneys' fees requested is disproportionate to a settlement or judgment does not necessarily indicate that a fee is unreasonable. Dunning, 62 F.3d at 873, n.13. The underlying principle of this policy is that a judgment for plaintiff furthers federal public policy and deters similar conduct in the future. Id. The court may then adjust the lodestar figure according to the plaintiff's level of success. Tolentino v. Friedman, 46 F.3d 645, 652 (7th Cir. 1995). Plaintiff's costs and attorneys' fees are summarized as follows:
Ernest T. Rossiello, 81.3 hours @ $ 320/hour = $ 26,016.00
Elena M. Dimopoulos, 261.8 hours @ $ 220/hour = $ 57,596.00
Melinda H. Brom, 8.10 hours @ $ 190/hour = $ 1,539.00
Annice Kelly, 1.6 hours @ $ 220/hour = $ 352.00
Paralegal Time, 47.25 hours @ 102.50/hour = $ 4,843.12
Expenses of Suit = $ 6,789.73
Total = $ 97,135.85
Defendant objects to all of plaintiff's counsels' hourly rates, as well as those of the paralegal on the case, stating that they are excessive and above market rates. People Who Care v. Rockford Board of Education, 90 F.3d 1307, 1310 (7th Cir. 1996) (award of fees is based on market rate for services rendered). To counter the requested hourly fees, defendant has submitted affidavits from labor and employment attorneys, including defendant's counsel, stating that attorneys with comparable experience in Chicago charge much lower hourly rates than those requested.
As to Ms. Dimopoulos, defendant notes that she graduated from law school in 1995 and therefore had less than one year experience when this lawsuit was filed in June 1996. Defendant has submitted affidavits supporting its contention that an hourly rate of $ 220 is excessive for such an inexperienced attorney. Defendant claims that Ms. Dimopoulos' inexperience was apparent in her overly aggressive manner of conducting discovery and reluctance to call opposing counsel to resolve discovery disputes. Also, defendant notes that many of Mr. Rossiello's time entries were for evaluating or reviewing Ms. Dimopoulos' work, indicating that a more senior attorney still needed to supervise her.
Defendant claims that the market simply would not bear the rates plaintiff's counsel and paralegal claim they are due, especially considering that the complexity of the legal issues in this case was limited.
Plaintiff rejoins that counsel should be awarded their own market rates, not what the court considers a "fair" rate. Pressley v. Haeger, 977 F.2d 295, 299 (7th Cir. 1992). She claims that courts in this district have approved the hourly rates for the attorneys and paralegals at Rossiello & Associates. Although it is accurate that an attorney who commands high rates in the market is entitled to that rate in a fee petition, Mr. Rossiello's evidentiary support for his hourly rate is not the rate he charges his clients or the rates of attorneys with similar experience but the rate he has been awarded in other cases. While those cases certainly provided guidance and must not be dismissed as having no significance, the court finds that they are distinguishable. First, many of the cases plaintiff cites as support and attaches as exhibits are merely orders awarding fees and contain no explanation of how the court arrived at the hourly rate. See Order dated October 24, 1996, in Emmel v. Hondo, Inc., 93 C 2290 ($ 305/hour); Order dated August 27, 1996, in Barnett v. Sandpiper I, Inc., 95 C 7547 ($ 305/hour); and Order dated March 31, 1997, in Baker v. Purcell & Wardrope, 96 C 6892 ($ 320/hour). In Le Torneau v. Pan American Financial Services, Inc., entered August 27, 1997, Judge Plunkett did award the hourly rates requested here but specifically noted that while defendant's counsel had opposed these rates as excessive, they had not provided any evidence that the rates exceeded the current market rate. In contrast, defense counsel here has submitted multiple affidavits from attorneys with similar experience stating that they do not charge nearly as much as Mr. Rossiello requests and that the market rates in Chicago for attorneys with his level of experience range from $ 225 to $ 275/hour. This is persuasive evidence that the hourly rates requested exceed market rates. It is especially true given the fairly typical nature of this Title VII claim, as indicated by the fact that an entry-level associate conducted most of the litigation. The court finds that the record clearly does not support a standard market rate of $ 320 and $ 220 per hour respectively for plaintiff's counsel. Specifically, an hourly rate of $ 220 for a first or second year attorney is patently high.
The cases that the court finds most similar to the instant one, and therefore most persuasive, is Shea v. Galaxie Lumber & Construction Co., 1997 U.S. Dist. LEXIS 1217, 1997 WL 51655 (N.D.Ill), where Judge Leinenweber awarded Mr. Rossiello $ 285/hour and Ms. Dimopoulos $ 125/hour in a case involving the Fair Labor Standards Act. The court will grant Mr. Rossiello an hourly rate of $ 285. As to Ms. Dimopoulos, the affidavits submitted indicate that attorneys with similar experience in Chicago bill at $ 105 to $ 125 an hour. However, Ms. Dimopoulos was the attorney with primary responsibility for handling this case, including appearances in court, preparing the motion for summary judgment and arguing motions in limine. For that reason, the court will allow an hourly rate of $ 140, which is a higher market rate than normal for an attorney with her experience but reflects her increased responsibility. The court will allow Ms. Brom, licensed in 1992, an hourly rate of $ 160, and Ms. Kelly, licensed in 1991, an hourly rate of $ 175. The current market rate for the paralegal service offered averages $ 75/hour and the court will allow that rate.
Defendant also objects to tasks Ms. Dimopoulos performed that it claims should have been completed by clerical staff. These include 1.2 hours of bates-stamping documents; .3 for picking up and filing inspection pictures; and .5 for reviewing the phone book for addresses. The court agrees. Although defendant claims that there are two entries of .1 hours that appear to be unrelated to this case, the court reviewed all entries on the cited dates and all appear to involve this matter. The 41 hours Ms. Dimopoulos billed for drafting the response to the motion for summary judgment and the Rule 12N statement are labeled excessive in light of the $ 220 hourly rate Ms. Dimopoulos requests. Because the court reduced that hourly rate to a level it finds commensurate with Ms. Dimopoulos' experience and level of responsibility, it does not find these hours excessive. The total time deducted from Ms. Dimopoulos' petition is: 7.5 hours.
Defendant has also objected to a number of Mr. Rossiello's entries that it states involve supervising Ms. Dimopoulos' work. It alleges that this contradicts plaintiff's assertion that Ms. Dimopoulos has much more knowledge regarding Title VII than attorneys with a similar number of years experience. As noted, the court did not grant the $ 220 hourly rate although it did grant a rate higher than the average for attorneys at her level. Because the court is giving Ms. Dimopoulos a higher hourly rate despite her fairly recent graduation from law school, the court will strike only the hours that clearly involve reviewing fundamental aspects of litigation. However, not every entry defendant has listed involves such review as opposed to normal discussion or strategizing between two attorneys on a case. The court therefore denies fees for Mr. Rossiello's entries dated 12/5/96; 12/11/96; 12/19/96;