NEWTON v. PENNSYLVANIA STATE POLICE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBERT M. NEWTON, )

)

Plaintiff, ) Civil Action No. 18-1639

) Magistrate Judge Maureen P. Kelly

v. )

) Re: ECF No. 173

PENNSYLVANIA STATE POLICE, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

KELLY, Magistrate Judge

This is an action commenced by Plaintiff Robert M. Newton (“Newton”) against the

Pennsylvania State Police (the “PSP”) to recover damages stemming from employment

discrimination.

Presently before the Court is Newton’s Motion for Attorney’s Fees and Expenses. ECF

No. 173. After careful consideration of the motion, exhibits filed in support thereof, and the PSP’s

response in opposition, and for the following reasons, the Motion is granted. The Court awards

$195,172.50 in fees and $4,918.41 in expenses.1

I. RELEVANT PROCEDURAL HISTORY

Newton commenced this action against the PSP on December 7, 2018, with the filing of

the initial Complaint. ECF No. 1. He sought damages in the form of back pay, front pay, and

compensation for emotional distress, as available under the Rehabilitation Act of 1973, 29 U.S.C.

§ 794a(a)(2) and 28 U.S.C §§1343(a)(3) and (a)(4) and 1331, and the Americans with Disabilities

Act (“ADA”), 42 U.S.C. §§ 12101, et seq. In Count I of the initial Complaint, Newton alleged

1 Pursuant to 28 U.S.C. § 636(c), the parties have consented to the jurisdiction of a United States Magistrate Judge to

conduct all proceedings in this case. ECF Nos. 6 and 8.

violations of the Rehabilitation Act based on the PSP’s refusal to promote him to the position of

Corporal because of his disability, record of disability, and/or perceived disability. Id. ¶¶ 28-34.

In Count II, Newton alleged that he was subjected to harassment, discrimination, and retaliation

by the PSP based on his disability in violation of the PHRA. Id. ¶¶ 35-37.

The PSP filed Defendant’s Answer to Plaintiff’s Complaint on February 25, 2019. ECF

No. 12. Thereafter, the parties conducted discovery. Discovery closed on January 31, 2020. ECF

No. 26.

On March 16, 2020, Newton filed a Motion for Partial Summary Judgment and Brief in

Support. ECF Nos. 39 and 40. Newton sought judgment as a matter of law as to Count I,

discrimination in violation of the Rehabilitation Act and, as to part of Count II, discrimination in

violation of the PHRA. ECF No. 39 ¶ 5. The PSP filed a Response to Plaintiff’s Partial Motion

for Summary Judgment on April 20, 2020. ECF No. 48. Newton filed a Reply Brief. ECF No.

49. On May 26, 2020, this Court issued an Opinion and Order denying Plaintiff’s Motion for

Partial Summary Judgment and dismissing Plaintiff’s PHRA claims in federal court based on

Eleventh Amendment immunity. ECF No. 53.

The PSP forced Newton to retire on September 4, 2020, and the Court permitted Newton

to file an amended complaint to assert claims arising out of his termination. ECF No. 64. The

Amended Complaint was filed on September 16, 2020, setting forth claims for the violation of the

Rehabilitation Act, including Failure to Promote (Count I), Termination (Count II), and Retaliation

(Count III). ECF No. 68. Following the issuance of a right to sue notice from the Equal

Employment Opportunity Commission (the “EEOC”), Newton filed a Second Amended

Complaint on January 8, 2021. ECF No. 81. Newton added claims under the ADA for

Discrimination (Count IV) and Retaliation (Count V). Id.

On April 8, 2021, the parties stipulated to the dismissal of the ADA and Rehabilitation Act

retaliation claims (Counts III and V). ECF No. 93. Prior to trial, the parties stipulated to the

dismissal of the ADA discrimination claim (Count IV). ECF No. 142. As a result, the case

proceeded to trial on Newton’s failure to promote and termination claims.

The jury trial portion of this case was conducted on November 8 through 10, 2021, and

resulted in a jury verdict in favor of Newton as to his claim for unlawful termination in violation

of the Rehabilitation Act. The jury awarded compensatory damages in the amount of $100,000.

ECF No. 155. The jury found in favor of the PSP as to the failure to promote claim. Id. On

November 12, 2021, the Court conducted the non-jury portion of the trial as to back pay, front pay,

reinstatement, and prejudgment interest relative to the termination claim. ECF No. 156.

On December 22, 2021, Newton filed a Motion for Back Pay, Front Pay and Prejudgment

Interest, and a brief in support. ECF Nos. 164 and 165. The PSP filed a Response to Plaintiff’s

Motion for Damages. ECF No. 168. Newton filed a Reply. ECF No. 172. Thereafter, the Court

issued an Opinion and Order granting the motion. ECF Nos. 176 and 177.

On January 28, 2022, Newton filed a Motion for Attorney’s Fees and Expenses. ECF No.

173. The PSP filed a Response to Plaintiff’s Motion for Attorney’s Fees and Expenses. ECF No.

175. The Motion is now ripe for consideration.

II. APPLICABLE LEGAL STANDARD

The United States Court of Appeals for the Third Circuit has recognized that a “reasonable

attorney’s fee” may be awarded to a prevailing party on a Section 504 claim. 29 U.S.C. § 794a(b);

Ward v. Philadelphia Parking Auth., 634 F. App’x 901, 903 (3d Cir. 2015) (“Congress has [ ]

unambiguously authorized the award of attorneys’ fees to a “prevailing party” in any action

commenced under ... the Rehabilitation Act.”). A plaintiff must prove the fee request is fair,

Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir. 2001), by submitting documentation

of the hours worked and rates charged, along with evidence demonstrating both are reasonable,

M.M. v. Sch. Dist. of Philadelphia, 142 F. Supp. 3d 396, 404 (E.D. Pa. 2015). The “lodestar,”

based on the reasonable rate multiplied by the reasonable number of hours worked, is the basis for

the award. Id. (citing Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d 694, 703 n.5 (3d

Cir. 2005)).

A “reasonable rate” is determined based on the community’s prevailing market rate for

attorneys of similar experience and skill at the time of the fee petition, and the court must review

the hours billed to exclude any that are unnecessary, redundant, or inadequately documented.

M.M., 142 F. Supp. 3d at 404. The district court has discretion in determining reasonable attorney’s

fees, but must explain any changes to the fees requested. United States ex rel. Palmer v. C&D

Techs., Inc., 897 F.3d 128, 137 (3d Cir. 2018).

III. ANALYSIS

The PSP presents three discrete challenges to limited portions of Newton’s fee petition:

(1) the hours worked on a sanctions motion that were already recovered should not be awarded;

(2) the hours worked for multiple hand calculations of damages should be reduced; and, (3) fees

should not be awarded for work done on unsuccessful claims, warranting a 30% reduction. ECF

No. 175. These arguments are addressed in the context of the requisite analysis of the pending fee

petition, as follows.

A. Prevailing Party

The United States Supreme Court has held that parties are considered prevailing parties if

“they succeed on any significant issue in litigation which achieves some of the benefit the parties

sought in bringing suit.” Hensley v. Eckert, 461 U.S. 424, 433 (1983)(quoting Nadeau v.

Helgemoe, 581 F.2d 275, 278-70 (1st Cir. 1978) (overruled on other grounds)). In Wheeler v.

Towanda Area Sch. Dist., 950 F.2d 128 (3d Cir. 1991), the United States Court of Appeals for the

Third Circuit held that a party is a prevailing party if “plaintiffs achieved relief and . . . there is a

causal connection between the litigation and the relief from the defendant.” Id. at 131. In J.O. v.

Orange Twp. Bd. of Educ., 287 F.3d 267 (3d Cir. 2002), the Third Circuit stated, “[a] party need

not achieve all of the relief requested nor even ultimately win the case to be eligible for a fee

award.” Id. at 271. Plaintiff need only achieve some of the benefit sought in a lawsuit. Id. “‘[A]t

a minimum . . . the plaintiff must be able to point to a resolution of the dispute which changes the

legal relationship between itself and the defendant.’” Id. (quoting Texas State Teachers Ass’n v.

Garland Indep. Sch. Dist.,489 U.S. 782, 792 (1989)). The United States Supreme Court found that

the only exception to this minimum requirement is when the party’s success is “purely technical

or de minimis.” Texas State Teachers Ass’n, 489 U.S. at 792.

In this case, there is no doubt that Newton was the prevailing party. Newton obtained a

jury verdict in his favor and against the PSP for terminating his employment because of his

disability in violation of the Rehabilitation Act. ECF No. 155. The jury awarded him $100,000

in compensatory damages and the Court awarded him $1,653,274 in back pay, front pay, lost

pension benefits, and prejudgment interest.

B. Lodestar Calculation

“The party seeking attorney’s fees has the burden to prove that its request for attorney’s fees

is reasonable.” Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). The petitioner can meet

this initial burden “by ‘submit[ting] evidence supporting the hours worked and rates claimed.’”

Taylor v. USF-Red Star Express, Inc., 212 F. App’x 101, 111 (3d Cir. 2006) (quoting Rode, 892

F.2d at 1183 (internal citation omitted)). The party opposing the fee petition “‘then has the burden

to challenge, by affidavit or brief with sufficient specificity to give fee applicants notice, the

reasonableness of the requested fee.’” Id. (quoting Rode, 892 F.2d at 1183 (internal citation

omitted)). “‘[T]he adverse party’s submissions cannot merely allege in general terms that the time

spent was excessive,’ but must identify both the general type of work being challenged and the

specific grounds for contending that the hours were unreasonable.” Id. (quoting Bell v. United

Princeton Properties, Inc., 884 F.2d 713, 720 (3d Cir. 1989)).

Once a challenge has been properly raised, “a district court has ‘a great deal of discretion to

adjust the fee award in light of those objections.’” Id. (quoting Rode, 892 F.2d at 1183). However,

“a district court may not make sua sponte reductions to fee requests based on material facts not

raised at all by the adverse party.” Id. (citing Bell, 884 F.2d at 720).

“‘The most useful starting point for determining the amount of a reasonable fee is the

number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate,’”

i.e., the “lodestar.” Rode, 892 F.2d at 1183 (quoting Hensley, 461 U.S. at 433); see also Lanni v.

New Jersey, 259 F.3d 146, 149 (3d Cir. 2001)). “A District Court has substantial discretion in

determining what constitutes a reasonable rate and reasonable hours, but once the lodestar is

determined, it is presumed to be the reasonable fee.” Lanni, 259 F.3d at 149 (citing Rode, 892 F.2d

at 1183). Either party may seek adjustment to the lodestar and, “[i]f that party meets the burden of

proving that an adjustment is appropriate, the lodestar amount may be increased or reduced at the

discretion of the District Court.” Id. (citing Rode, 892 F.2d at 1183).

1. Reasonable rates

“Generally, a reasonable hourly rate is to be calculated according to the prevailing market

rates in the relevant community.” Rode, 892 F.2d at 1183. In making this determination, “the court

should assess the experience and skill of the prevailing party’s attorneys and compare their rates

to the rates prevailing in the community for similar services by lawyers of reasonably comparable

skill, experience, and reputation.” Id.

In this case, Newton argues that reasonable rates for his attorneys are $525 per hour for

Attorney Colleen Ramage and $375 per hour for Attorney Nikki Lykos. ECF No. 173 at 5-6. He

has provided the requisite declarations supporting the reasonableness of these hourly rates for the

Western District of Pennsylvania based on the skill, reputation, and experience of Attorneys

Ramage and Lykos. ECF Nos. 173-1 to 173-6. In its Response, the PSP agrees that these rates

are reasonable for plaintiffs’ employment lawyers in this market. ECF No. 175 at 1. Based on the

prevailing community market rates, and in light of the skill, reputation, and experience of

Newton’s counsel, the Court finds that hourly rates of $525 per hour for Attorney Ramage and

$375 per hour for Attorney Lykos are reasonable and appropriate.

2. Time reasonably expended

In the fee petition, Newton requests attorney’s fees for 382 hours for work performed by

Attorney Lykos and for 98.9 hours for work performed by Attorney Ramage. ECF No. 173 at 6;

ECF No. 173-7.

As noted above, the PSP only challenges portions of the fee request based on the arguments

that the hours worked on a sanctions motion that were already recovered should not be awarded

and that the hours worked for serially calculating damages by hand should be reduced. ECF No.

175.2

a. Hours worked on sanctions motion

On January 27, 2020, Newton filed an Emergency Motion to Compel former PSP

Commissioner Tyree Blocker to appear for deposition. ECF No. 28. The next day, the Court

2 The Court will separately address the PSP’s third argument that Plaintiffs’ counsel should not be awarded for fees

for work done on Newton’s unsuccessful claims. See pp. 15-16, infra.

conducted a telephone conference with counsel for the parties, ECF No. 32, granted the Emergency

Motion to Compel, and specifically ordered Blocker to appear for his deposition on January 29,

2020, ECF No. 31. At the conference and in the order, the Court directed that if Blocker failed to

appear as ordered, the PSP would be responsible for paying Newton’s attorney fees for preparation

for the Blocker deposition and any court reporter fees and costs. Id. Nonetheless, Blocker failed

to appear for the deposition as ordered.

On February 5, 2020, Newton filed an Amended Motion for Sanctions relative to the

repeated failure of the PSP to produce Blocker for his deposition as ordered. ECF No. 35. Newton

sought reimbursement for the 4 hours that Attorney Lykos spent on January 16, 2020, preparing

for the Blocker deposition, at her then current hourly rate of $350. Id. ¶¶ 9-11. As such, Newton

sought a sanction award of $1400. Id. ¶ 12. On February 19, 2020, the Court granted the Amended

Motion for Sanctions and imposed three specific sanctions, including requiring that the PSP

reimburse Newton’s counsel $1400 for attorney’s fees to prepare for the Blocker deposition (the

“Sanctions Order”). ECF No. 37. Thereafter, the Court was required to issue orders relative to

the failure of the PSP to pay the sanction. ECF Nos. 43 and 51. Finally, on May 15, 2020, the

PSP filed a Notice of Compliance with the Sanctions Order. ECF No. 52.

In its Response to the pending Motion, the PSP states that “[t]he Court ordered Defendant

to reimburse Plaintiff $1,400 for attorney’s fees incurred to prepare for that deposition – 6 hours

at $350 an hour.” ECF No. 175 at 1.3 The PSP then cites a time entry with the description

“[p]repare outlines and exhibits for depositions of N. Watkin, S. Ignatz and T. Blocker” without

3 The PSP mistakenly seeks a deduction for 6 hours of time. However, Newton previously sought and received

reimbursement for 4 hours of time.

reference of a specific date. Id. at 2. The PSP asks that the Court subtract 6 hours from Attorney

Lykos’ time from the fee petition to account for the previous sanctions payment. Id.

The requested deduction is denied. Newton has not requested to be reimbursed for the 4

hours of time that Attorney Lykos spent preparing for the deposition of Blocker on January 16,

2020. A careful review of the billing records submitted to the Court reveals that Newton does not

include an entry for 4.0 hours of time spent by Attorney Lykos on January 16, 2020, preparing for

the Blocker deposition. ECF No. 173-7 at 11. Newton only seeks reimbursement for time on

January 16, 2020, relative to two entries: one entry relates to the preparation for the deposition S.

Ignatz, and one entry relates to the preparation for the deposition of N. Watkin. There is no request

for reimbursement for the 4.0 hours of time spent on January 16, 2020, relative to preparation for

the Blocker deposition. Id. Thus, it is clear that Newton does not seek a duplicative reimbursement

for work performed on January 16, 2020, relative to the Blocker deposition and as addressed in

the previous Sanctions Order.4 Accordingly, the requested deduction is not warranted or supported

by the record.

b. Hours worked on damages calculations

The PSP argues that the almost 20 hours of time that Newton’s counsel spent calculating

damages should be reduced by 10 hours.5 ECF No. 175 at 2-3. In general, the PSP faults Newton’s

counsel for making hand calculations and recalculations of damages. Id. However, the PSP

acknowledges that certain of the recalculations were necessitated by new PSP pay scales. Id.

4 The PSP cites a time entry from January 17, 2020, for 3.5 hours – not the 6 hours that it seeks to have deducted.

The entry cited by the PSP is not the date, time, or description for which the Court previously awarded sanctions for

$1400 for work performed on January 17, 2020. ECF Nos. 35 and 37.

5 The PSP does not specifically state in its Response whether it complains about time spent on the calculations as to

back pay, front pay, or both. ECF No. 175 at 2-3.

The first two entries that the PSP complains about are:

4/16/2019 NVL Prepare client's documents to be 1.50 $375.00 $562.50

produced with Plaintiff's Initial

Disclosures; Continue drafting Plaintiff's

Initial Disclosures; Review Defendant's

pay scales and begin calculations of

Plaintiffs back pay loss.

4/18/2019 = NVL Phone call with client gaa 2.50 $375.00 $937.50

dt BD NOME 1B)

i= □□□ EB)

i= □□□ 1B) Compute

Plaintiff's back pay calculation and

revise Plaintiff's Initial Disclosures.

ECF No. 173-7 at 4-5.

As part of the initial case management order issued in this case on April 1, 2019, ECF No.

17, the parties were directed to exchange the requisite initial disclosures required by Federal Rule

of Civil Procedure 26(a). Clearly, the preparation of initial damages calculations is appropriate

information to be provided by a plaintiff as part of his/her initial disclosures in an employment

discrimination case. The 4.0 hours spent by Newton’s counsel referenced in the two cited entries

is more than reasonable given the required Rule 26 disclosures at an early stage of the litigation.

The next two entries that the PSP complains about are:

2/05/2021 NVL Review PSP pay scales and calculate 2.50 $375.00 $937.50

wage loss damages (back pay, front

pay and impact on SERS retirement

benefits) for forced retirement claim.

2/08/2021 NVL Review client's information re 1.50 $375.00 $562.50

ail Finish calculating Plaintiff's

damages; Email client re jae

i=ey

ECF No. 173-7 at 28.

These two entries relate to preparation of updated damages calculations for the judicial

mediation before United States District Judge W. Scott Hardy. On February 4, 2021, Judge Hardy

10

conducted a status conference with counsel. The same day, he issued an order directing that

Newton was to submit an itemization of damages and settlement demand to PSP counsel by

February 18, 2021. Each party was also directed to provide a confidential position letter to Judge

Hardy. ECF Nos. 87 and 88. Therefore, the calculation of the identified damages information was

requested by Judge Hardy relative to the judicial mediation. The time spent by Newton’s counsel,

as referenced in these two entries, is reasonable given the requested submissions directed by Judge

Hardy to facilitate pre-trial resolution of this matter.

The next entry that the PSP complains about is:

3/24/2021 NVL Draft Plaintiff's Pretrial Statement and 3.50 $375.00 $1,312.50

damages exhibit.

ECF No. 173-7 at 30.

This entry relates to preparation of Newton’s pretrial statement. On February 18, 2021,

the Court issued an Amended Pretrial Order rescheduling the trial date due to the Covid pandemic

and setting the deadlines for the filing of pretrial statements. ECF No. 91. In the Amended Pretrial

Order, the Court expressly directed that Newton’s pretrial statement address the requirements set

forth in Local Civil Rule 16.1.4. Id.

Local Civil Rule 16.1.4 provides that the plaintiff's pretrial statement shall include:

a. a brief narrative statement of the material facts that will be offered at trial;

b. a statement of all damages claimed, including the amount and the method

of calculation of all economic damages;

c. the name, address and telephone number of each witness, separately

identifying those whom the party expects to present and those whom the party

may call if the need arises, and identifying each witness as a liability and/or

damage witness;

d. the designation of those witnesses whose testimony is expected to be

presented by means of a deposition and the designation of the portion of each

1]

deposition transcript (by page and line number) to be presented if already

deposed (and, if not taken stenographically, a transcript of the pertinent

portions of the deposition testimony);

€. an appropriate identification of each document or other exhibit, including

summaries of other evidence, separately identifying those that the party expects

to offer and those that the party may offer if the need arises and assigning an

exhibit number to those that the party expects to offer;

f. a list of legal issues that the party believes should be addressed at the final

pretrial conference;

g. copies of all expert disclosures that the party made pursuant to Fed. R. Civ.

P. 26(a)(2) with respect to expert witnesses identified in the pretrial statement

pursuant to LCvR 16.1.C.1.c; and

h. copies of all reports containing findings or conclusions of any physician

who has treated, examined, or has been consulted in connection with the injuries

complained of, and whom a party expects to call as a witness at the trial of the

case.

LCvR 16.1.4.

Upon review of the submitted time entries, the Court finds that the 3.50 hours spent

by Attorney Lykos preparing Newton’s pretrial statement and updated damages calculations

is appropriate and reasonable.

The next two entries that the PSP objects to are:

10/15/2021 NVL Update damages calculations for use at 0.80 $375.00 $300.00

trial; Adjust damages exhibit for use at

trial.

10/19/2021 NVL Review updated pay scales and 1.50 $375.00 $562.50

recalculate Plaintiff's back pay, front

pay and SERS damages.

ECF No. 173-7 at 42.

Despite the PSP’s objections to these two entries, the PSP acknowledges in its

Response that “some of the revisions were due to new pay scales.” ECF No. 175 at 2. It is

12

certainly reasonable for Newton’s counsel to spend 2.3 hours updating the damages

calculations based on the new pay scales issued by the PSP and the corresponding impact on

Newton’s SERS calculations of losses. As such, the two entries for a total of 2.3 hours,

necessitated by PSP pay scale changes, are reasonable and appropriate.

Finally, the PSP objects to time entries associated with the November 2021 trial of

this case. The PSP cites to three time entries for a total of 4.5 hours of time. Based on the

Court’s review, it appears that these objections actually relate to four time entries, as set forth

below.

11/04/2021 NVL Review and revise Plaintiff's damages 2.50 $375.00 $937.50

exhibit, recalculating SERS impact

damages; Meet with CER to review

revisions to Plaintiffs damages exhibit:

Email counsel and Court re revised

Exhibit P3; Exchange emails with

counsel re explanation of damages

calculations; Make further revisions to

SERS impact calculation; Draft outline

of how damages calculations were done

for defense counsel; Email revised

calculations and explanation for

calculations to defense counsel.

11/04/2021 NVL Meet with CER to review and revise 0.50 $375.00 $187.50

Plaintiff's damages exhibit.

11/04/2021 CER Meet with NVL to review and revise 0.50 $525.00 $262.50

Plaintiffs damages exhibit.

11/10/2021 NVL Review and revise final back pay and 1.00 $375.00 $375.00

front pay calculations; Email revised

charts to counsel for discussion.

ECF No. 173-7 at 47, 50.

Jury selection in this case was conducted on November 3, 2021, and the trial of this case

commenced on November 8, 2021, and continued through November 12, 2021. Once liability was

found by the jury, the key issues for the Court to determine were back pay, interest, and front pay

13

damages as well as SERS losses. These calculations also required consideration of present value

reductions based on differing rates. Given the variables involved in these calculations, including

the number of work years at issue, the 4.0 hours of attorney time spent on these calculations during

trial is reasonable.

Based on the Court’s review of the identified entries, the Court finds that the PSP’s

requested deduction of 10 hours for work relative to certain damages calculations is not warranted

or supported by the record.

As to the second prong of the lodestar analysis assessing the reasonableness of hours

expended by Newton’s counsel, the Court finds that the PSP’s challenges to the above identified

time entries are without merit. Accordingly, the Court concludes that the hours expended by

Newton’s counsel, as set forth in the fee petition and Exhibit 7 to the petition, are reasonable. ECF

No. 173; ECF No. 173-7.

C. Results obtained

After the court has calculated the lodestar, the court may adjust the fee for other

considerations, including the “results obtained.” Hensley, 461 U.S. at 434. “This factor is

particularly crucial where a plaintiff is deemed ‘prevailing’ even though he succeeded on only

some of his claims for relief.” Id. In that situation, the court must address two questions. “First,

did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded?

Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a

satisfactory basis for making a fee award?” Id.

With respect to the first question, if a court determines that litigation of unsuccessful claims

is distinct from claims on which the party succeeded, it may reduce the hours spent litigating the

unsuccessful claims. Hensley, 461 U.S. at 434-35. An award of attorneys’ fees should not simply

reflect a mathematical ratio between the successful and unsuccessful claims. McKenna v. City of

Philadelphia, 582 F.3d 447, 458 (3d Cir. 2009); Public Interest Research Group of New Jersey v.

Windall, 51 F.3d 1179, 1190 (3d Cir. 1995) (a simple mechanistic reduction based solely on the

ratio of successful claims is precluded by Hensley).

The second question a court may consider is the overall degree of success. Spencer v. Wal-

Mart Stores, Inc., 469 F.3d 311, 318 (3d Cir. 2006) (“Where a plaintiff has achieved only partial

or limited success, a district court may adjust the fee downward.”); Hensley, 461 U.S. at 434-46;

McKenna, 582 F.3d at 458.

The amount of damages awarded, when compared with the amount of

damages requested, may be one measure of how successful the plaintiff was

in his or her action, and therefore “may be taken into account when awarding

attorneys’ fees to a civil rights plaintiff.”

Washington v. Philadelphia Cty. Ct. of Common Pleas, 89 F.3d 1031, 1042 (3d Cir. 1996) (quoting

Abrams v. Lightolier, 50 F.3d 1204, 1222 (3d Cir. 1995)). A court, however, may not reduce fees

merely to maintain a proportionality between the fees and the award. Id.

In this case, Newton was the prevailing party at trial on his wrongful termination claim.

The PSP was the prevailing party on the failure to promote claim. Thus, the PSP argues that

Newton should not be awarded fees for work done on his unsuccessful claims. ECF No. 175 at 3.

The PSP also argues that several of Newton’s claims were barred or did not go to trial. Id. The

PSP asserts that because Newton did not prevail on his failure to promote claim and the previously

dismissed or withdrawn claims, the lodestar should be reduced by 30%. Id.

1. Interrelation of claims

In Hensley, the United States Supreme Court explained:

Many civil rights cases will present only a single claim. In other cases the plaintiff's

claims for relief will involve a common core of facts or will be based on related

legal theories. Much of counsel's time will be devoted generally to the litigation as

a whole, making it difficult to divide the hours expended on a claim-by-claim basis.

Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district

court should focus on the significance of the overall relief obtained by the plaintiff

in relation to the hours reasonably expended on the litigation.

Where a plaintiff has obtained excellent results, his attorney should recover a fully

compensatory fee. Normally this will encompass all hours reasonably expended on

the litigation, and indeed in some case of exceptional success, an enhanced award

may be justified. In these circumstances, the fee award should not be reduced

simply because the plaintiff failed to prevail on every contention raised in the

lawsuit.

Hensley, 461 U.S. at 435.

In the instant case, the PSP acknowledges in its Response that while Newton litigated only

the failure to promote claim until September 2020 (when the PSP forced Newton to retire), work

done on the failure to promote claim by Newton’s counsel was “intertwined” with work done on

his forced retirement claim. ECF No. 175 at 5.

Furthermore, the record in this case reflects that Newton’s Rehabilitation Act claims and

those claims that did not proceed to trial are based on a common factual background and an alleged

pattern of discriminatory conduct by the PSP following Newton’s diagnosis, surgery, and

treatment for osteosarcoma. Ultimately, the alleged pattern of discriminatory conduct resulted in

the termination of his employment by the PSP based on his disability. Thus, the attorneys’ fees

set forth in the pending motion are attributable to Newton’s overlapping disability discrimination

related claims, including time spent in preparation of filings, discovery, depositions, motions

practice, and preparation for trial. As a result, the attorney’s fees entries are not separated by claim

and, as a practical matter, could not be. For these reasons, Newton’s successful termination claim

brought under the Rehabilitation Act is interrelated to his failure to promote claim as well as his

other discrimination claims.

2. Level of success

As addressed above, a plaintiff is considered to be a prevailing party if he or she is

successful on any significant issue in litigation which achieves some of the benefit the parties

sought in advancing the lawsuit. Farrar v. Hobby, 506 U.S. 103, 109 (1992). When a plaintiff

“achieves a level of success that makes the hours reasonably expended a satisfactory basis for

making a fee award,” he or she should recover a full compensatory fee. Hensley, 461 U.S. at 435.

In making this assessment, the Court “should focus on the significance of the overall relief obtained

by the plaintiff.” Id. “Where a plaintiff has obtained excellent results, his [or her] attorney should

recover a fully compensatory fee,” and “the fee award should not be reduced simply because the

plaintiff failed to prevail on every contention raised in the lawsuit.” Id.

In considering the level of success achieved in this case, it is important to recognize the

results obtained at trial. The liability and compensatory damages portions of this case were tried

before a jury. The jury considered both of Newton’s Rehabilitation Act claims; first, his failure

to promote claim arising from the PSP’s refusal to promote Newton from Trooper to Corporal

because of his disability; and second, Newton’s claim that the PSP forced him to retire and

terminated his employment because of his disability. The jury found in favor of Newton on the

termination claim and awarded him $100,000 in compensatory damages. ECF No. 155. As to the

failure to promote claim, the jury found that Newton met his burden of proof that he was a qualified

individual able to perform the essential functions of the job of Corporal, with or without reasonable

accommodation. However, the jury found that Newton did not establish that his disability was the

sole factor in the PSP’s decision not to promote him to the rank of Corporal. Id.6

6 Newton sought only $17,631 in lost back pay on the failure to promote claim. This amount represented the difference

in his salary in the position of Trooper and the salary in the position of Corporal from March 11, 2017 (the failure to

promote date) and September 1, 2020 (the date of his termination). ECF No. 98-1 at 1.

Following the nonjury portion of the trial, the Court awarded back pay, prejudgment

interest, front pay, and lost pension benefits in the amount of $ $1,653,274.00 relative to the

termination claim. ECF No. 177.

As the prevailing party, Newton’s counsel obtained significant monetary damages for their

client in back pay, front pay, and lost pension benefits. Counsel also obtained a substantial award

of compensatory damages. The combined damage awards total $1,753,274.00. And, while it may

be true that the jury did not completely find in favor of Newton on his failure to promote claim,

“the fee award should not be reduced simply because the plaintiff failed to prevail on every

contention raised in the lawsuit.” Hensley, 461 U.S. at 435.

For these reasons, the Court finds that Newton’s counsel achieved substantial success on

the significant issue of wrongful termination under the Rehabilitation Act, and obtained a most

substantial portion of the damages that he sought resulting from the unlawful discriminatory

conduct of the PSP. This level of success does not warrant a reduction in the attorneys’ fees as

requested by the PSP. Rather, Newton’s counsel is entitled to recover “the full compensatory fee”

for “excellent results.” Id.

D. Reasonable Expenses

Newton also seeks an award of $4,918.41 for expenses reasonably necessary for the

successful prosecution of this action. ECF No. 173 at 6; ECF No. 173-8. In its Response, the PSP

agrees that these expenses are reasonable. ECF No. 175 at 1. Accordingly, the Court finds that

an award of expenses in the amount of $4,918.41 is reasonable and appropriate.

IV. CONCLUSION

For the foregoing reasons, as the prevailing party, Newton is entitled to reasonable

attorney’s fee and costs. The Court finds that Newton’s requests for attorney’s fees and expenses

are reasonable both as to the hourly rates charged and the hours expended in significant litigation,

given the substantial level of success achieved. Therefore, Plaintiff’s Motion for Attorney’s Fees

and Expenses is granted. An appropriate Order follows:

ORDER

AND NOW, this 24th day of March, 2022, upon consideration of the Motion for Attorney’s

Fees and Expenses, filed on behalf of Plaintiff Robert M. Newton, ECF No. 173, and the Response

in Opposition filed by Defendant Pennsylvania State Police, ECF No. 175, and for the reasons set

forth in the accompanying Memorandum, IT IS HEREBY ORDERED that the motion is granted.

IT IS FURTHER ORDERED that Defendant Pennsylvania State Police shall pay Plaintiff

Robert M. Newton attorney’s fees in the amount of $195,172.50. The amount represents 382 hours

for Attorney Lykos at $375 per hour for $143,250.00 and 98.9 hours for Attorney Ramage at $525

per hour for $51,922.50.

IT IS FURTHER ORDERED that Defendant Pennsylvania State Police shall pay Plaintiff

Robert M. Newton expenses in the amount of $4,918.41.

IT IS FURTHER ORDERED that the Court will consider a supplemental motion for

attorney’s fees and costs incurred after the submission of the instant fee petition, but only after the

parties meet and confer to attempt to constructively resolve the final/supplemental attorney’s fees

and costs without further intervention by the Court.

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MAUREEN P. KELEY

UNITED STATES MAGISTRATE JUDGE

cc: All counsel of record by Notice of Electronic Filing

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