Cooper v. Upstairs, Downstairs of New York, Inc.

Background

Mark Cooper sued his former employer, Upstairs, Downstairs of New York, Inc., and former supervisor Michael Grummons, along with Robert De Benedicits and Paul Galluccio. He alleged discrimination based on perceived sexual orientation under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law. His claims included hostile work environment and retaliation.

At trial, Cooper voluntarily dismissed his claims against De Benedicits and Galluccio. The jury found for Cooper only on his New York State and New York City hostile work environment claims against Grummons. It awarded him $6,500 in punitive damages under the New York City Human Rights Law, but no compensatory damages. The jury found for Upstairs, Downstairs on all of Cooper’s claims, including his Title VII claims.

Motion for a New Trial

Cooper sought a new trial limited to damages, arguing that the award of punitive damages without compensatory damages required a new trial. The court explained that New York State law does not allow punitive damages without some compensatory injury, but concluded that the New York City Human Rights Law does allow a jury to award punitive damages without compensatory damages. The court relied on the City law’s separate punitive-damages provision, related New York appellate decisions, and the absence of authority requiring compensatory damages first.

The court therefore denied Cooper’s motion for a new trial on damages.

Cooper’s Fees and Costs

The New York City Human Rights Law allows a court to award reasonable attorney fees, expert fees, and other costs to a prevailing party. The court held that Cooper was a prevailing party because he succeeded on significant hostile-work-environment claims, even though he lost most of his claims and recovered far less than he sought.

The defendants had made two $50,000 offers of judgment under Federal Rule of Civil Procedure 68. Cooper rejected both. The court held that the second offer, made on April 23, 2019, was valid and applied for Rule 68 purposes even though it specified judgment against Upstairs, Downstairs and only Grummons was found liable. Because Cooper’s final recovery was less favorable than the offer, he could not recover fees or costs incurred after that date.

The court accepted a $250 hourly rate and allowed 107 hours of work performed before the second offer. It reduced Cooper’s pre-offer fees by 80 percent because he recovered only $6,500 compared with the $8 million he sought and prevailed against only one of four defendants on two claims. The court awarded Cooper $5,350 in attorney fees and $1,833 in costs, including $750 in expert fees incurred before the offer.

Defendants’ Fees and Costs

The court held that Rule 68 required Cooper to pay the defendants’ post-offer costs, awarding them $2,398. It denied the defendants’ request for post-offer attorney fees because they were not prevailing parties and the claims were not frivolous, unreasonable, or without foundation. The court also denied fees under 28 U.S.C. § 1927, which can apply when an attorney unreasonably and vexatiously multiplies court proceedings, and denied the defendants’ request for $5,000 in expert preparation and testimony costs because those expenses were not recoverable costs under the governing law.

Disposition

The court denied Cooper’s motion for a new trial on damages; awarded Cooper $5,350 in attorney fees and $1,833 in costs; denied defendants’ motions for attorney fees and expert fees; and awarded defendants $2,398 in costs.