Kole, J.A.D., retired and temporarily assigned on recall.
The issue before the court is the extent to which, if at all, Robb is entitled to an award of counsel fees and costs.
The Law Against Discrimination (LAD), in N.J.S.A. 10:5-27.1, authorizes an award of a reasonable attorney's fee and costs to a prevailing party in an action or proceeding brought under that statute. See Singer v. State, 95 N.J. 487, 495-500, 472 A.2d 138 (1984), cert. denied, 469 U.S. 832, 105 S. Ct. 121, 83 L. Ed. 2d 64 (1984); Council Enterprises, Inc. v. Atlantic City, 200 N.J. Super. 431, 440-41, 491 A.2d 789 (Law Div.1984). I find that Robb is a prevailing party in the instant action. To be a prevailing party, a plaintiff must have "succeeded on any significant claim affording it some of the relief sought." Texas State Teachers v. Garland Independent School Dist., 489 U.S. 782, 791, 109 S. Ct. 1486, 1493, 103 L. Ed. 2d 866 (1989). See also Nadeau v. Helgemoe, 581 F. 2d 275, 278-79 (1st Cir.1978), quoted in Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983).
In my opinion of June 14, 1993, I ruled in favor of plaintiff Robb on one of her five claims for relief with respect to positions in the school district under LAD. I held that she had been discriminated against by defendant Ridgewood Board of Education by reason of her sex in their refusal to employ her as a high school social studies teacher and directed that she be so employed by the Board. I also ordered the Board to pay her $2,500 in compensatory damages. I further ruled that she is entitled to attorneys' fees and costs under LAD with respect to that one claim for relief as to which she was the prevailing party. I stated that the disparate impact thesis that was part of her case with respect to the other four claims should not have been in the case at all; and, since it involved a great deal of unnecessary time and effort, both by the
court and the parties, the amount of counsel fees and costs that would be allowed might be diminished somewhat by reason thereof.
Plaintiff's attorneys have submitted certifications as to the time spent by them on the entire case, the time allocated by them to the disparate impact claim, and the time spent on matters other than the disparate impact claim. As to the latter time, they assert that they are entitled to be compensated for no less than 70% thereof. It is asserted that some of their preparation for trial, and evidence at the trial on the other claims related to the quasi-administrative positions, gave significant background or other information relevant to the high school social studies teacher's job. Thus, it is argued, Bass's testimony as to sexual stereotypes in both the treatment and impact analysis was pertinent to the issue of plaintiff's being discriminated against by virtue of her being considered by Waneck as a non-feminine woman (as defined in the opinion).
It is also asserted that there was a great amount of overlap between strategies, materials, proofs and testimony which bore upon all of the five positions. For example, plaintiff argues, disparate treatment claims involving stereotypical categorization were made with respect to all five positions; and the case law, research, briefs, and the like, on these issues were applicable to all of the positions.
Furthermore, it is stated there was much overlap of testimony, notwithstanding that a witness may have primarily testified as to a position for which Robb did not prevail. For example, Folkemer was a committee member for the position of lead teacher, but he also became part of the proofs relating to the high school teaching position, having been contacted by Waneck about Robb. His perceptions of Robb, it is alleged, contributed to Waneck's stereotyping, and both Robb and Folkemer testified at length on these issues, separate and apart from the position of lead teacher. By way of further example, plaintiff states, the testimony of Superintendent of Schools, Dr. Frederick Stokley defies proportional
division, given his involvement with the Waneck issue and Robb's separate count against him.
Essentially, it is argued, most of the effort expended on the other four discriminatory treatment counts of the complaint was substantially interrelated to, and contributed to, both the analysis and a favorable determination of the fifth count. For that reason, it is claimed, such time should be compensated for by way of counsel fees.
The Board of Education (the Board) correctly points out that the court in its comments as to the counsel fees that may be allowed improperly focused in its opinion on the positions involved, rather than the many claims for relief in the complaint.
There were nine claims for relief in the complaint. Five of them related to specific positions. Apart from the four quasi-administrative positions, the separate claims for which no relief was granted are the following: (1) substantive discrimination against Stokley; (2) disparate impact, by reason of the lack of or low number of Jewish or Jewish female administrative staff in Ridgewood; and (3) punitive damages. There was also a claim relating to stereotyping of plaintiff by reason of the committee interview system. But that claim is really encompassed in the charges relating to the four quasi-administrative positions. This reduces the number of claims to eight. Thus, it is not inappropriate to conclude that in fact plaintiff was successful on only one of her eight claims for relief.
A proportional reduction in the lodestar amount (discussed hereafter) based simply or solely on a mathematical approach comparing the total number of issues in the case with those actually prevailed upon cannot serve as the basis for determining a reasonable fee for the prevailing party. However, such a comparison is germane to determining the degree of plaintiff's success, e.g., the extent to which it was limited in nature, considering the entire relief sought. Popham v. City of Kennesaw, 820 F. 2d 1570, 1579-88 (11th Cir.1987) (citing and quoting from the
Supreme Court's opinion in Hensley, supra, 461 U.S. at 424, 103 S. Ct. at 1933).
I disagree with the Board's contention that no fees should be awarded to Robb. Their reasons therefor are unpersuasive.
It is true that Robb had effective access to the judicial process to vindicate her civil right to the high school teacher's job, since her attorneys were furnished to her free of charge by her union. The union paid them $111,297.50 in fees and $21,894.91 in expenses. But it appears that she is required by agreement to reimburse the union to the extent she receives money in this action.
In any event, although the prevailing party's ability to pay may be considered in setting the amount of the fee, it is not a proper factor in the decision of whether or not to award a fee. Singer v. State, supra, 95 N.J. at 498, 472 A.2d 138. Nor is the fact that the fees will be paid by a public body from tax dollars a determinative factor. See ibid., where the State was the defendant. See also Council Enterprises, Inc. v. Atlantic City, 200 N.J. Super. 431, 491 A.2d 789 (Law Div.1984); Ramirez v. County of Hudson, 169 N.J. Super. 455, 404 A.2d 1271 (Ch.Div.1979).
That punitive damages were not granted does not mean that the relief that was awarded was not intended to have a deterrent effect, as the Board contends. The Board would be short-sighted indeed if its success on the punitive damage award alone did not deter future LAD violations, in view of the finding that it did violate LAD, the grant of a mandatory injunction to place Robb in the high school position, the damages awarded to Robb, and the reasons given therefor in the opinion, as well as the significant Discussion therein of the problems the Board may have with respect to creed discrimination.
It is clear that Robb succeeded on a significant issue in the litigation, thereby achieving at least one of the benefits she sought in bringing the suit. Accordingly, she is entitled to attorney fees and costs. Although she did not succeed on every issue that she
raised and did not receive all of the relief she requested, she still has the status of a prevailing party. The degree of the plaintiff's overall success goes to the reasonable amount of the attorney fee award and costs, rather than to the preliminary matter of the availability of a fee or costs award. See Texas State Teachers, supra, 489 U.S. at 792-93, 109 S. Ct. at 1494.
Having determined that Robb is entitled to a reasonable attorney fee, it is necessary to determine the proper amount of the fee to be awarded. Hensley, supra, 461 U.S. 424, 103 S. Ct. 1933, provides the appropriate analysis. Accord, Singer v. State, supra, 95 N.J. at 499, 472 A.2d 138. As specified in Hensley, 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. Hensley, supra, 461 U.S. at 433, 103 S. Ct. at 1939. This calculation, typically referred to as the lodestar, provides an objective basis on which to make an initial estimate of the value of a lawyer's services. Id.
It does not, however, end the inquiry. The court may, in light of other considerations, adjust the fee upward or downward. Id. at 434, 103 S. Ct. at 1940. One such consideration is that of the "results obtained," a particularly important factor where, as here, a plaintiff is deemed "prevailing," even though she succeeded on only one of her claims for relief. Id. In such a case, the court can reduce the lodestar to reflect the plaintiff's partial success.
If the claims on which the plaintiff did not prevail and the claims upon which she did prevail are distinctly different claims that are based on different facts and legal theories, the court cannot award any fee for services on the unsuccessful claims. Id. at 434-435, 103 S. Ct. at 1940. However, if the unsuccessful and the successful claims "involve a common core of facts" or are "based on related legal theories," it will be difficult to divide the hours expended ...