                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-28-2001

Evans v. Port Auth NY & NJ
Precedential or Non-Precedential:

Docket 00-1919




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Recommended Citation
"Evans v. Port Auth NY & NJ" (2001). 2001 Decisions. Paper 279.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/279


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Filed November 28, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-1817 and 00-1919

JANET L. EVANS

v.

PORT AUTHORITY OF NEW YORK AND NEW JERSEY;
ANGELO DINOME; LAURA TOOLE
       Port Authority of New York and
       New Jersey,
       Appellant in No. 00-1817

JANET L. EVANS
       Appellant in No. 00-1919

v.

PORT AUTHORITY OF NEW YORK AND NEW JERSEY;
ANGELO DINOME; LAURA TOOLE

Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 95-cv-5094)
District Judge: Honorable Katharine S. Hayden

Argued July 16, 2001

Before: MANSMANN, SCIRICA and RENDELL,
Circuit Judges.

(Filed: November 28, 2001)
       Raymond L. Hamlin, Esquire
       Terry Ridley, Esquire (ARGUED)
       Hunt, Hamlin & Ridley
       60 Park Place
       Suite 1602
       Newark, New Jersey 07102

        Counsel for Appellant
       in No. 00-1817
       And Appellee in No. 00-1919

       Hugh H. Welsh, Esquire
       Donald F. Burke, Esquire (ARGUED)
       Port Authority of New York &
        New Jersey
       One Riverfront Plaza
       Suite 327
       Newark, New Jersey 017102

        Counsel for Appellee
       in No. 00-1817
       And Appellant in No. 00-1919

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this action alleging racial discrimination in violation of
42 U.S.C. SS 1981 and 1983, and Title VII, the jury
returned a verdict in favor of Janet Evans, finding that her
employer, the Port Authority of New Jersey, discriminated
against her when it failed to promote her to the position of
client manager in 1994. Evans was awarded back pay, front
pay, and compensatory damages. The District Court also
granted her request for attorney's fees. The Port Authority
contends that the District Court erred in denying its motion
for a new trial as to liability and damages, and in
calculating the amount of the fee award. Evans cross-
appeals, contending that the District Court erred in
granting the Port Authority's motion for remittitur and in
failing to allow the jury to consider the issue of punitive
damages.

                               2
Because we are convinced that the Port Authority's
allegations of error relating to the liability portion of the
verdict clearly lack merit, we direct our primary attention to
the damage and attorney's fees awards. Although we
recognize that the award for emotional damages is atypical,
and though we may have arrived at a different calculation
had the award been ours to determine in the first instance,
we find that the figure set by the District Court has
substantial support in the record. The attorney's fees award
is more problematic. Our review of the billing records
submitted by Evans' counsel establishes that the District
Court did not devote adequate attention to the hours
expended and the duplication of effort by Evans' attorneys;
reduction in the fee award is warranted. For the reasons set
forth herein, we will conditionally affirm the order of the
District Court denying the Port Authority's motion for a new
trial and granting its motion for remittitur. We will vacate
the District Court's order approving the award of attorney's
fees and will remand this matter for a recalculation of the
award.

I.

In 1993, Janet Evans, a Port Authority employee since
1979, worked as a liaison between the Port Authority and
government and business officials. The same year, Evans
applied and was interviewed for the Port Authority position
of client manager. Eight total candidates were considered,
including four white candidates, three black candidates,
and one Hispanic applicant. Three of the candidates,
Evans, Laura Toole, and Dan Maynard, were interviewed by
Angelo Dinome, a white male.

In January 1994 Evans learned that the client manager
position would be filled by Toole, a white female. She also
learned that Maynard, a white male, had been promoted to
the position of senior information officer. This position had
never been advertised and Evans was not aware that it was
open. Evans challenged Toole's appointment and Maynard's
promotion, claiming that each was the result of
discrimination based on race. She filed a complaint alleging
racial discrimination with the EEOC in April 1994. The

                               3
EEOC did not find probable cause to support Evans'
allegations, but did issue a right to sue letter.

On October 3, 1995, Evans filed a timely complaint in the
District Court of New Jersey, alleging that "the actions of
the [D]efendant[ ]1 in failing to promote her to the position
of client manager were designed to deny her the
opportunity for growth and [to] prevent her from advancing
in the Port Authority solely on the basis of her race." She
maintained, too, that the Port Authority provided"greater
attention, benefits and support to non-African American
employees by way of preference for certain bonuses,
incentives, and salaries." Evans contended that the
appointment of Toole and the promotion of Maynard
constituted proof of the Port Authority's impermissible
preference.

Following a multi-day jury trial in August 1999, the jury
found that the Port Authority violated 42 U.S.C.SS 1981
and 1983, and Title VII when it failed to promote Evans in
1994. The jury awarded Evans $148,000 in back pay,
$182,000 in front pay, and $1.15 million in compensatory
damages.

The Port Authority filed a motion for judgment N.O.V. or,
in the alternative, for new trial.2 After evaluating thoroughly
on the record each of the grounds asserted, the District
Court denied the Port Authority's motions. The District
Court instead granted the Port Authority's request for
remittitur, reducing Evans' compensatory damages for
_________________________________________________________________

1. An amended complaint named Angelo Dinome and Laura Toole as
defendants. These individuals were never served and are not parties to
this action.

2. The Port Authority claimed entitlement to a new trial on seven
grounds: 1) the verdict was contrary to the evidence and the law; 2) the
evidence viewed most favorably to Evans was insufficient to support
liability; 3) the damage awards were excessive; 4) the District Court
erred
in excluding from evidence the determination letter issued by the EEOC;
5) remarks made by Evans' counsel during summation were sufficiently
prejudicial to warrant a new trial; 6) the District Court erred in
"allowing
testimony with reference to the 1998/1999 client manager selection
process;" and 7) the District Court "erred in barring the testimony of two
witnesses on behalf of [the] Port Authority."

                                4
emotional distress to $375,000. Ultimately, the District
Court approved a request for attorney's fees made by
Evans' counsel in the amount of $635,555.71.

The Port Authority filed this timely appeal raising issues
relevant to liability, damages, and fees. Evans filed a timely
cross-appeal raising issues bearing solely upon damages.

II.

We turn first to the Port Authority's argument that it is
entitled to a new trial on the question of liability. The Port
Authority bases this argument on allegations of error which
include the District Court's admitting or excluding multiple
items of evidence, permitting allegedly inflammatory
comments made by counsel for Evans during summation,
and inadequately charging the jury.3 These allegations do
not merit extended discussion. We have conducted a
meticulous review of the record as it bears upon each of
these alleged errors and are convinced that the District
Court's rulings were supported by the law and the facts
and were consistent with the sound exercise of judicial
discretion.4 We do not find anything in the record to
_________________________________________________________________

3. The Port Authority alleges specifically that the District Court erred:
in
admitting evidence regarding the filling of a client manager position open
in 1999; excluding evidence of the EEOC finding of"no discrimination";
permitting Evans' counsel to question a Port Authority employee
regarding his status in two other lawsuits; allowing an Evans' co-worker
to testify as to her reaction to the promotion process; admitting Evans'
statements regarding her qualifications, views of the promotion process,
and interview notes; excluding check lists and notes relevant to other
candidates; and permitting Evans' counsel to make inflammatory
remarks during summation. The Port Authority also alleges that the
District Court erred in instructing the jury with respect to disparate
impact, and failed to instruct the jury regarding the theory of respondeat
superior and causation.

4. With respect to a number of the alleged errors, there is support in the
record for application of a plain error standard. Most of the evidentiary
decisions about which the Port Authority complains were made without
objection, or were influenced by the Port Authority's failure to comply
with the District Court's admonition to make submissions in a timely
manner or to lay a proper foundation for evidence which it sought to

                               5
support the Port Authority's assertion that the District
Court erred in failing to grant a new trial with respect to
liability.

III.

We focus next upon the components of the damage
award, considering first the Port Authority's contention that
the front and back pay awards must be vacated because
the District Court failed to give the jury clear instructions
as to how these awards were to be calculated.

Examination of the record establishes that the Port
Authority never objected to and, in fact, agreed to the
adequacy of the front and back pay instructions. We have
reviewed those instructions and find that they gave the jury
ample guidance as to the law and the method of calculating
these awards.

We reject, too, the Port Authority's contention that the
evidence submitted to the jury was insufficient to support
the awards. Again, context is important. As the District
Court made clear in its ruling on the Port Authority's
motion for a new trial, the quality of the evidence
introduced with respect to front and back pay lay largely in
the hands of the Port Authority; the Port Authority was
responsible for and should not now be heard to complain
about lack of detail in the evidence. The position of the
District Court is set forth in the transcript of the ruling on
the motion for a new trial:

       The Court: I will not permit, in light of what I just read
       and the struggles that [Evans] had to undergo to get
       basic, basic, salary information, from which [she] could
       workup [sic] some kind of a chart or graph, or. . .
_________________________________________________________________

introduce. It is also clear that the jury instructions to which the Port
Authority now objects were, at the very least, acquiesced to by counsel
for the Port Authority prior to the charge. The Port Authority failed to
object to these instructions at the time that they were delivered or prior
to the time that the jury retired to consider its verdict. Because we have
not found error under the more stringent abuse of discretion standard,
it follows that we do not find plain error.

                               6
       some kind of easy specifics for this jury to work with,
       I will not permit [the Port Authority] to attack the
       manner in which this financial information ultimately
       was presented to the jury.

        As I recall eventually we did receive the numbers --
       was there a stipulation ultimately worked out, counsel?

       [Counsel for Evans]: Yes.

       [Counsel for the Port Authority]: Yes.

       The Court: Flat out numbers. That are consistent with
       the findings [the jury] made about what [Evans] had
       lost by being deprived of the promotion that she sought
       . . . brought forth and into the future. The . . . jury was
       told about how old [Evans] was. What her career path
       had been. About her devotion to her job. She testified
       that she had an interest in remaining in her position
       and pursuing promotions along the line of work that
       she was doing. And she was quite specific . . . about
       that . . . .

       * * * *

        Therefore, I am not disturbing the jury's awards on
       front and back pay.

(Evans App. G, p. 26-27). We, too, decline to disturb the
jury's calculation of the front and back pay awards.

IV.

We next address the Port Authority's contention that it is
entitled to a new trial because the jury's compensatory
damage award of $1.15 million "was not supported by the
evidence and was grossly excessive, `reflect[ing]' a jury
driven by mistake, passion, prejudice or partiality."

We review the District Court's decision not to grant a new
trial for abuse of discretion. Our precedent establishes that
a District Court reviewing a jury verdict has an"obligation
. . . to uphold the jury's award if there exists a reasonable
basis to do so." Motter v. Everest & Jennings, Inc., 883 F.2d
1223, 1230 (3d Cir. 1989). "[T]he court may not vacate or
reduce the award merely because it would have granted a

                                7
lesser amount of damages." Id. A new trial is warranted
based "upon [a] showing that `the jury verdict resulted from
passion or prejudice.' " Hurley v. Atlantic City Police Depart.,
174 F.3d 95, 114 (3d Cir. 1999), cert. denied , 528 U.S.
1074 (2000) (quoting Dunn v. HOVIC, 1 F.3d 1371, 1383
(3d Cir. 1993)). "[T]he size of the award alone [is not]
enough to prove prejudice and passion." Id. The Port
Authority argues that because of allegedly improper
evidentiary and other trial errors, the jury could not have
been impartial in determining compensatory damages.

Because we have rejected the allegations of error upon
which the Port Authority bases its impartiality argument,
we reject as well the Port Authority's argument that the
alleged errors tainted the jury's verdict. Nonetheless, we
have an obligation, as did the District Court, to ensure that
the compensatory damage award finds support in the
record and that the jury did not "abandon analysis for
sympathy." Gumbs v. Pueblo International, Inc., 823 F.2d
768, 773 (3d Cir. 1987).

Recognizing this obligation, the District Court discussed
in great detail the evidence supporting an award of
compensatory damages,5 specifically rejecting the Port
_________________________________________________________________

5. This evidence consisted solely of Janet Evans' testimony:

        [As a result of the Port Authority's actions] I started having
chest
        pains and shortness of breath. I was sent to the[Port Authority]
        medical department [on] four, five different occasions, had an EKG
        taken and [was] sent home and I started taking blood pressure
        medicine. I have also been moody and irritable all of the time. And
        it affected my relationship with my children.

        I was a grouch. Okay. Candidly I was a grouch. Affected my
        relationship with my husband.

        I was a grouch. I am sure I could use another word, but I will say
        grouch for the court. It affected me on almost every level of my
        existence. It made me question my ability. I said to myself, you
        know, maybe I am not as smart as I think I am. Maybe I can't do
        this and, you know, I am only doing this for at the time 17, 18
        years, maybe I don't have the stuff it takes to do this.

        And then I had to get myself together and talk to somebody
        professionally and -- I renewed my spirit, because I think that if
you

                                8
Authority's argument that the jury's verdict was the result
of passion or prejudice. The Court found that the jury, in
awarding compensatory damages, considered Evans'
demeanor and testimony against the background of the
testimony and demeanor of Port Authority witnesses:

         One of the things that judges have to do in examining
         the challenge to whether a jury was carried away by
         bias and passion and prejudice and sympathy and all
         of the other wrongful motives, in awarding a large
         award of damages. It was what went on in the
         courtroom and the judges own observations of the jury.
         And I remember that moment very clearly, as a
         moment in which this jury was struck as forcibly as it
         could be struck by [the Port Authority's witness's]
         certainly inadvertent description of this process as a
         joke.

          I find that the demeanor of [this Port Authority
         witness], which was alternatively somewhat arrogant,
         somewhat embarrassed and generally unpersuasive
         . . . was a typical kind of reaction given, the substance
         of what was slowly but surely being demonstrated to
         this jury.

         * * * *

        [I]t is very important to me to examine[Evans']
       testimony and what she put in by way of proofs with
       what exactly was proven to this jury by the testimony
       with the very people who could have and should have
       and [in] some cases did respond to her but responded
_________________________________________________________________

         let it, what happens to us African Americans is, okay, it can drive
         you crazy if you let it, and people go into offices and shoot
people
       up and do all kinds of things. If you allowed the anger that
develops
       as a result of constantly being made to feel you are not as good
as,
       if you don't have some strong faith, some strong--

         * * * *

         I had my parents, I had my God. And as a consequence I kept my
         mind; but I was in bad shape. Okay. And I am still angry.

(Port Auth. App. X, p. 93-96.)

                                 9
       to her in [a way] that was totally oblivious of . . . her
       concerns, which could not have been more clearly
       expressed.

        I find that as much as her testimony about . . . her
       disposition, her relationship with the people nearest
       and dearest to her, the family and her children and her
       husband, is the observation that she made. [S]he
       herself was designated to train the very people who
       were brought in from the outside to fill a position,
       which she was part of the creation of and which she far
       better than they could have filled . . . Much more
       importantly, the impact of being asked to train the very
       people who were filling the job on a consistent level
       that one is not promoted [to], is an enduring and long
       standing curb on the ability to enjoy one's job that
       cannot be ignore[d] by the Court.

       * * * *

       Janet Evans had a tremendous impact on this jury,
       there is no doubt in this Court's mind, I was here, and
       I sat the closest to her, of anybody, and I had the
       direct view of how the jury reacts . . . [T]his jury liked
       Janet Evans not because she pandered to them . . .
       [Her] demeanor . . . was that of a proud, accomplished,
       intelligent woman whose faith in herself was shattered
       by consistent refusal . . . to give her what she felt
       rightly was [hers] . . . .

(Evans App. G. p. 55-59.) The District Court also concluded
that the verdict was not the result of undue sympathy on
the part of the jury:

       [I] don't find, either from what was on the record or
       from the amounts awarded, that this was a run away
       jury . . . .

        They were instructed frequently . . . that they were
       not to let passion or prejudice blind them. . . . They
       were reminded frequently they should use their
       common sense in their own collective judgment. I find
       that is what happened here with respect to the jury's
       findings. Particularly, as they are supported by the
       evidence.

                               10
(Evans App. H. p. 96-97)

Based on the District Court's observations with respect to
the totality of the evidence, the demeanor of the witnesses,
and the reaction of the jury, we are unable to conclude that
the jury verdict resulted from passion or prejudice.
Consequently, we find that the District Court's decision to
deny the Port Authority's motion for a new trial was
consistent with the sound exercise of judicial discretion.

V.

Although the District Court rejected the Port Authority's
argument that the compensatory damage verdict returned
by the jury required that a new trial be granted, the Court
did find that the award was excessive. Accordingly, the
Court granted remittitur to $375,000, an amount it
characterized as "the maximum award that a reasonable
jury could impose in this case."

The Port Authority does not argue on appeal that the
$375,000 award is excessive. We are instead presented with
the anomalous situation where it is the plaintiff who
challenges the remittitur. Normally, where a District Court
denies a defendant's motion for a new trial as to damages,
yet concludes that a jury verdict is excessive, warranting
remittitur, denial of the motion for new trial is conditioned
on the plaintiff's acceptance of the remittitur. Any
remittitur accepted by the plaintiff in that situation is not
appealable. See Lowe v. General Motors Corp., 624 F.2d
1373, 1383 (5th Cir. 1980). The order denying the Port
Authority's motion for a new trial on the issue of damages
here was not conditioned on Evans' acceptance of the
remittitur. Thus, Evans appeals, asking that we reinstate
the jury's verdict awarding her $1.15 million in
compensatory damages.

Our role in reviewing the District Court's decision to
remit the damage award here is "severely limited." Gumbs,
823 F.2d at 771. The use of remittitur "clearly falls within
the discretion of the trial judge, whose decision cannot be
disturbed by this court absent a manifest abuse of
discretion." Spence v. Bd. of Educ. of the Christina Sch.
Dist., 806 F.2d 1198, 1200 (3d Cir. 1986). "The district

                               11
judge is in the best position to evaluate the evidence
presented and determine whether or not the jury has come
to a rationally based conclusion." Id. at 1201. Where the
District Court has decided that remittitur is appropriate, we
must accord that decision additional deference. Delli Santi
v. CNA Ins. Co., 88 F.3d 192, 206 (3d Cir. 1996). "[W]e
must give the benefit of every doubt to the judgment of the
trial judge." Gumbs, 823 F.2d at 773.

Evans does not cite any other discrimination case from
any other jurisdiction where an award approaching the
jury's verdict of over $1 million was sustained. Nonetheless,
we recognize that the issue to be decided here "is not the
size of the award alone, but the evidence supporting the
award." Blakely v. Continental Airlines, Inc. , 992 F. Supp.
731, 737 (D.N.J. 1998). Evans' attempt to justify the size of
the award by reference to the record is unpersuasive. She
summarizes the evidence supporting the original verdict as
follows:

       [Evans'] testimony clearly established the invidious
       effect of race discrimination upon a human being. . . .
       She was made to suffer the indignity of being qualified
       for a job and being turned down nine times. She was
       upset, she was traumatized, she would, on occasion
       become ill. This sorry state occurred over a period of
       ten years.

Although we agree with Evans that "racial discrimination
is vicious, destructive, and debilitating," we are not
persuaded that the evidence of emotional distress adduced
here is remotely sufficient to support the jury verdict. The
verdict was "so large as to appear contrary to reason," and
the District Court's decision to grant remittitur was well
within the discretion reserved to it. Blakely , 992 F. Supp.
at 735.

Our examination of the remitted award does not end
here. Despite the fact that the Port Authority does not
challenge the $375,000 award as excessive, we have an
independent responsibility to review the award in order to
determine if it is rationally based. Our precedent recognizes
"an increasing appellate trend to review the merits of a
damage award, even though our scope of review is limited."

                               12
Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030 (3d
Cir. 1987). In order to satisfy our obligation we must,
according the benefit of any doubt to the judgment of the
District Court, assess whether the District Court erred in
fixing Evans' damages for emotional distress at $375,000.

On review, we may not require the District Court fixing a
remittitur to reduce an award to less than the largest
verdict that could be allowed without requiring a new trial.
That is, remittitur should be set at the " `maximum
recovery' that does not shock the judicial conscience."
Gumbs, 823 at 774. The District Court specifically applied
this maximum recovery rule:

       Applying the Gumbs line   which is . . . the line between
       an excessive jury award   and the maximum award that
       a reasonable jury could   impose in this case [,] I am
       granting remittitur . .   . to $375,000.

(Evans App. p. 117) The District Court then turned to the
evidence supporting this award. Because this evidence is
critical to our review, we cite the District Court's comments
at some length:

       Judges must proceed with caution when a challenge to
       an award is based upon emotional distress. . . . One of
       the ways in which I would respond to that challenge is
       to consider the demeanor of the jury and what went on
       in front of the jury which may have [led it] to conclude
       that [its] empathic abilities could be exercised a certain
       way. . . .

        [W]hen the jury heard distressful testimony or
       observed witnesses squirming or coming out with
       arguments or statements like Mr. Codd that he
       considered the lawsuit to be a joke. That this shows
       how inflamed the jury was. And how much it wanted to
       slam the Port Authority. I disagree.

        I think that it demonstrates a certain amount of
       drama that went on here and that the jury is enabled
       to get a glimpse of what was the evidence that it was
       describing. Not glimpses into things that the jury had
       no evidence of and could only speculate about, but
       things that Miss Evans described. Such as her feelings

                                 13
       of -- I don't know if she said the word worthless, but
       she began to doubt herself. Indications as to whether
       or not all of this was worth it and . . . she called herself
       a grouch. I would take the liberty of saying . . . that
       Miss Evans kind of smiled and said grouch . . . and we
       all know that she meant bitch. . . .

        I find that the moments I've described were such--
       where Miss Evans by dint of her own personality that
       of a strong professional woman that I earlier described,
       did not indicate such distress as would make it
       impossible for her to go to work. The jury could still
       have had an insight of what it was like to work in an
       environment where people said such things as Mr.
       Breznoff said, and yet did things as Mr. Breznoff did, or
       called for. Called her lawsuit a joke. Or where her
       supervisors, even though they had far less experience
       and even though promoted to the jobs through routes
       that she could not have access to because of the
       departmental option.

        These are important things because there has been a
       challenge that the level of emotional distress argued for
       by this plaintiff is not supported by the evidence.

(H 106-109)

In sum, the District Court concluded that the evidence
supporting the award of damages for emotional distress
was not comprised of Evans' testimony alone. Evans'
account of the physical and emotional toll of working at the
Port Authority was, in the District Court's view, supported
-- and dramatically so -- by the demeanor and testimony
of Port Authority witnesses.

Analyzing the evidence in light of governing precedent,
the District Court found that the maximum reasonable
award for emotional distress totaled $375,000. The District
Court recognized, as do we, that this is a substantial
amount, well above most emotional distress awards. Given
the District Court's detailed analysis of the total evidence
presented, however, and our extremely deferential standard
of review, we are not prepared to conclude that the award
lies outside the bounds of reason. Clearly, this was not a
typical case and Evans' emotional trauma cannot"be

                               14
cavalierly dismissed." Blakely, 992 F. Supp. at 734. We are
convinced that in fixing the remittitur the District Court
has "endeavored to follow [our] instructions, consider
similar cases, evaluate the evidence and determine a
damages figure that [was] rationally related to [that]
evidence, mindful that `[t]he determination of that amount
may not be precisely calculated.' " Id. 992 F. Supp. at 739
(quoting Gumbs, 823 F.2d at 774). We cannot say that the
amount awarded by the District Court demonstrated a
manifest abuse of discretion. Consequently, we will not
disturb the award.

VI.

The last of the alleged errors in the District Court's
treatment of damages -- the decision not to submit the
issue of punitive damages to the jury -- is raised by Evans
in her cross appeal. According to Evans, "[t]he District
Court dismissed the punitive damage count against the
[Port Authority], ruling that the [Port Authority] is entitled
to sovereign immunity under the Eleventh Amendment."

Evans misstates the basis for the District Court's ruling.
The District Court did not hold that the Port Authority was
immune from suit in federal court under the Eleventh
Amendment.6 It held, instead, that the Port Authority, a
hybrid entity with many of the characteristics of a
municipality, is subject to suit but is, nonetheless, immune
from punitive damages.

The District Court's conclusion is supported by the
caselaw. In Bolden v. Southeastern Pa. Transp. Auth., 953
F.2d 807 (3d Cir. 1991), we found that punitive damages
may not be assessed against SEPTA, the regional transit
_________________________________________________________________

6. The authority cited by Evans is, therefore, inapposite. See College
Sav.
Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666
(1999) (holding that sovereign immunity of State of Florida was neither
abrogated by Trademark Remedy Clarification Act, nor voluntarily waived
by Florida's activities in interstate commerce); and Seminole Tribe of
Fla.
v. Florida, 517 U.S. 44, 54 (1996) (holding that despite Congress'
construction of the Indian Gaming Regulatory Act and clear intent to
abrogate sovereign immunity, the Indian Commerce Clause did not grant
Congress that power).

                               15
authority created by the Commonwealth of Pennsylvania.
We relied on the Supreme Court's decision in City of
Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), finding
that municipalities are not subject to punitive damages
under 42 U.S.C. S 1981:

       The thrust of the Court's discussion in City of Newport
       was that punitive damage awards against
       municipalities would not serve the goals of punishment
       or deterrence in the same way as punitive damage
       awards against individuals found to have violated
       Section 1983. This reasoning is fully applicable to
       SEPTA. Awarding punitive damages against SEPTA
       might result in increased taxes or fares and thus
       punish taxpayers and users of mass transportation
       who cannot be regarded . . . as bearing any guilt for
       constitutional violations that SEPTA may commit.
       Similarly, the deterrent effect that such awards may
       have on SEPTA decision makers is far more speculative
       than the deterrent effect of punitive damage awards on
       individuals who violate Section 1983, and other means
       of deterring violations by SEPTA officials . . . are readily
       available. Finally, SEPTA would be a tempting target
       for large punitive damage awards by juries unduly
       influenced by SEPTA's size and revenues. . . .

Bolden, 953 F.2d at 830-31 (citations omitted). We affirmed
a decision of the District Court applying a similar analysis
to conclude that the Port Authority, "as a hybrid entity with
substantial connections to government, may not be
assessed punitive damages" in King v. The Port Authority of
New York and New Jersey, 909 F. Supp. 938 (D.N.J. 1995),
aff'd, 106 F.3d 385 (3d Cir. 1996). A number of other
District Courts have reached the same conclusion. 7 See
_________________________________________________________________

7. Only one District Court has reached a contrary result. In Kondakjian
v. Port Auth. of N.Y. and N.J., No. 94 Civ. 8013, 1996 WL 280799 at *1
(S.D.N.Y. May 24, 1996), the District Court relied on the Supreme
Court's decision in Hess v. Port Authority Trans-Hudson Corp., 513 U.S.
30 (1994). There, the Supreme Court found that the Port Authority was
not entitled to the Eleventh Amendment immunity applicable to states
and state agencies, noting that the Port Authority is structured to be and
is, in fact, financially self-sustaining. We agree with other District
Courts

                               16
Vernon v. Port Auth. of N.Y. and N. J., 154 F. Supp. 2d 844
(S.D.N.Y. 2001) (holding that entities, like Port Authority,
created by bi-state compact should not be liable for
punitive damages); Ryduchowski v. Port Auth. of N.Y. and
N.J., No. 96-CV-5589, 1998 WL 812633 (E.D.N.Y. Nov. 19,
1998) (same); Brady v. Port Authority of N.Y. and N.J., Nos.
93 Civ. 1679, 95 CV 0442, 87 CV 2702, 1998 WL 724061
(E.D.N.Y. Oct. 15, 1998) (same); Recreation World, Inc. v.
Port Auth. of N.Y. and N.J., Nos. 96 Civ. 5549, 97 Civ. 5029,
1998 WL 107362 (S.D.N.Y. March 19, 1998) (same); Rose v.
Port Auth. of N.Y. and N.J., 13 F. Supp.2d 516 (S.D.N.Y.
1998) (same); Shifa Services, Inc. v. Port Auth. of N.Y. and
N.J., No. 96 Civ. 1361, 1997 WL 563301 (S.D.N.Y. Sept. 8,
1997) (same).

We are persuaded by the analysis adopted by these
courts and conclude that the same considerations that
underlay our decision in Bolden support the conclusion
that the Port Authority, like SEPTA, is immune from
punitive damages. We agree with the Court's analysis in
Shifa that:

       Considerations of public policy, including the goals of
       punishment and deterrence of constitutional violations,
       do not "dictate a contrary result." Although taxes
       would not be affected by the award of punitive
       damages against the Port Authority because it receives
       no tax revenues and is financially independent of New
       York and New Jersey, an award of punitive damages
       might result in increased tolls, fares, and other
       expenses borne by the public generally. The users of
       Port Authority facilities cannot be regarded, "except
       perhaps in an indirect and abstract sense," as bearing
       any guilt for constitutional violations committed by the
_________________________________________________________________

which have considered the applicability of Hess to punitive damage
awards. These courts have held that the question considered by the
Supreme Court in Hess -- immunity from suit in federal court under the
Eleventh Amendment -- presents different considerations from the
question of a public authority's immunity from punitive damages under
Section 1983. The decision in City of Newport supplies the appropriate
framework for analysis. See, e.g., Shifa Services Inc., 1997 WL 563301 at
*4.

                               17
       Port Authority. Also, the deterrent effect of punitive
       damage awards on the Port Authority is more
       speculative than the deterrent effect of punitive damage
       awards on individuals who violate Section 1983. Other
       means of deterring violations by Port Authority officials
       are already available. . . .

1997 WL 563301 at *5 (citations omitted). Based on this
reasoning, we find that the District Court did not err in
refusing to submit the issue of punitive damages to the
jury.

VII.

We turn last to the Port Authority's challenge to the
$635,555.71 fee award approved by the District Court. As
the prevailing party in this action, Evans is entitled to
recover attorney's fees and costs. See 42 U.S.C. S 1988(b)
(providing, in the court's discretion, a reasonable attorney's
fee to a successful litigant in 1981 and 1983 actions). "In
cases like this, we use the `lodestar' formula, which
requires multiplying the number of hours reasonably
expended by a reasonable hourly rate." Loughner v. Univ. of
Pittsburgh, 260 F.3d 173, 176 (3d Cir. 2001).

The Port Authority argues that the fee award should be
reduced, asking us to review both the hourly rates and the
duplicative nature of the billings. We review the
reasonableness of an award for attorney's fees under an
abuse of discretion standard. Rode v. Dellarciprete, 892
F.2d 1177, 1182 (3d Cir. 1990). What standards to apply in
calculating a fee award is a legal question subject to
plenary review. Keenan v. City of Philadelphia , 983 F.2d
459, 472 (3d Cir. 1992). We will not disturb the District
Court's determination of an attorney's marketplace billing
rate and number of hours reasonably expended absent
clear error. Washington v. Philadelphia County Court of
Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996).

The facts surrounding the District Court's determination
of the fee award are particularly important to the issues
raised by the Port Authority. In September 1999, counsel
for Evans filed a request for attorney's fees and a
certification with respect to hourly rates. The District Court

                               18
was asked to approve an award in the amount of
$953,333.56. This amount included a lodestar of
$628,027.50, costs and expenses totaling $7,483.21, and
an upward enhancement of fifty (50%) percent. The fee
application was first considered by the District Court in
April 2000, when argument on post-trial motions was
heard.

At that time, the Port Authority opposed the fee request,
arguing first that the information submitted by counsel for
Evans was insufficient to support the requested billing rate
of $300 per hour. In response to this argument, the
following exchange took place:

       The Court: What support has been adduced in the
       record for the hourly rates charged by Mr. Ridley and
       Mr. Hamlin? Aside from the certifications?

       Mr. Ridley: Your Honor, we did not take affidavits of
       the community of lawyers that are involved in Civil
       Rights cases. I could have called Neil Mullen. I could
       have called some other folks that I know who do this
       type of litigation.

       The Court: I think what really Mr. Burke is saying is
       that you should have as well as could have . . . .

        Neither side has produced the kind of evidence that
       [the] Third Circuit seems to be adverting to in the
       Hurley case. The Port Authority challenged the hourly
       rate and it didn't produce any record evidence as[to]
       why. And the plaintiff did not produce record evidence
       for me to consider as to why its hourly rate is
       appropriate.

(Evans. App. H. p. 88-89)

The court then directed the parties to file affidavits as to
the customary and proper rate to be applied in this case
--"whether or not when Ridley and Hamlin say $300 an
hour is a reasonable amount . . . in the context of the civil
rights case litigated up here in Northern New Jersey." These
affidavits were not adversarial and, consequently, were not
to be served on or responded to by the other side. Evans'
attorneys' affidavits were to be filed on April 28th and the
Port Authority's were due Friday, May 5th, by 5 o'clock. (Id.

                               19
p. 122) The Port Authority's counsel was admonished to "be
on time when you file it."

At the same hearing, counsel for the Port Authority
argued that the fee request was unreasonable, too, because
the billing sheets showed duplicative effort by Evans'
attorneys. The Court rejected this argument, stating:

        I have reviewed the amount of hours that have been
       requested and . . . . I have to agree with Mr. Hamlin;
       that when the decision was made not [to] try the case
       alone that it was an appropriate decision and a
       decision in this increasing[ly] difficult area of the law,
       or any area of the law, is a wise decision that cases
       that get tried alone very often are overwhelming the
       attorney in trying to do it. . . [I]t was very evident that
       it was a good thing that Mr. Hamlin and Mr. Ridley
       [were] there . . . .

        I am not offended that both lawyers were working on
       this case both during the trial, nor at times during the
       preparation of the case whether it was witness prep[,]
       attendance of depositions and the like. And therefore,
       I don't find that the number of hours requested for
       those particular efforts to be excessive. And the Court
       is not obliged to go line, by line, by line. And I am
       aware there was an effort and I think there was an
       appropriate effort on the part of the defendant to bring
       to the Court's attention several lines of billing where
       there was a challenge. But in all it seems to boil down
       to whether or not more than one attorney was working
       on a case at a given time and I've already indicated
       that I find that it is appropriate that did not go on
       throughout the entire case.

        I find too, that on those occasions when Mr. Hamlin
       billed for 18 hours, I hate to say it, but I have done
       that too. We have all done it. Then Mr. Hamlin didn't
       do it so often to make the request outrageous . . ., it is
       very very hard and it is very time consuming. The total
       legal fee requested in excess of $600,000 based upon
       the hourly rate requested by these attorneys, whether
       or not I'll let the hourly rate stand I cannot tell you
       until I have the kind of record evidence that I have

                                20
       requested from counsel. But I don't find [in] a case that
       went for this long with motion practice and depositions
       and review of documents and a full blown trial, and a
       fight to the finish that -- that amount of fees for two
       attorneys working on a case strikes me outrageous.

(Evans' App. H, pp118-19)

On May 11, 2000 the District Court issued a not-for-
publication opinion addressing attorney's fees. The court
first noted that counsel for Evans had made a timely filing
of certifications addressing the propriety of the $300 hourly
rate. The court also noted that attorneys for the Port
Authority, although specifically directed to do so, did not
file counter-certifications by the May 5 deadline. 8 The
District Court wrote:

       The [Port Authority] submission was not provided to
       the Court on time, even though the May 5 deadline
       gave [the Port Authority] a full three weeks to obtain
       outside opinions and [the Port Authority] had already
       had [Evans'] certification of services for months.
       Instead, on May 8th, the Court received a letter from
       [counsel for the Port Authority] enclosing a newspaper
       article, which he uses as a basis for his contention that
       the court must hold a hearing on the fee application.

Evans v. Port Auth. of N.Y. and N.J., No. 95-5094, letter
opinion, p. 1-2 (D.N.J. May 11, 2000).

While the District Court recognized that a hearing on fees
may be required in some instances, it found that a hearing
could only be helpful "in the context of a proper
presentation of evidence on what the reasonable market
rate actually is." Id. at 2. The Court found that holding a
hearing would not be productive in this case because"the
[Port Authority] has failed to offer any information on this
subject." Id. The court then wrote: "[I] will not further add
to the time and expense expended on this case by delaying
_________________________________________________________________

8. The Port Authority did file an affidavit bearing on appropriate hourly
rates which was hand-delivered to the District Court five days late, on
May 10th. Because this affidavit was not timely, it was not considered by
the District Court.

                               21
decision on the reasonable hourly rate . . . based upon the
competent evidence provided to me." Id.

The court summarized this evidence as follows:

       I have reviewed Certifications from two attorneys,
       Robert Woodruff and Bruce P. McMoran.9 Both have
       significant experience in the area of employment law.
       Their conclusions are reasonable, and the information
       their certifications have provided to the court regarding
       hourly rates has been helpful. Accepting that the Third
       Circuit has disapproved of a district judge relying
       solely on personal knowledge in evaluating the
       reasonableness of an hourly rate, Hurley, 174 F.3d at
       132, it is nonetheless pertinent to note the referenced
       certifications tell me nothing unexpected or surprising
       about hourly rates charged in the community . . . . The
       requested hourly rates charged by Mr. Hamlin and Mr.
       Ridley are approved.

Id.

With respect to the Port Authority's allegation of
excessive hours and unreasonable duplication of effort, the
Court wrote:

       On the record of proceedings held April 14th, I
       addressed the [Port Authority]'s objections about the
       amount of time spent and what it was spent for . . ..
       There is nothing new before me to disturb my decision
       to accept as reasonable the number of hours set forth
       by [Evans'] attorneys in their Certifications.
_________________________________________________________________

9. McMoran   certified that he was a New Jersey attorney specializing in
employment   law and that his hourly rate was set at $375 per hour in
July 2000,   and that his rate had been $350 per hour from Jan. 1997.
He did not   say anything about community rates generally.

Woodruff certified that he had been a civil rights attorney for twenty
years and that he found the request for a $300/hr fee "to be within the
framework of what might be expected to be awarded in the Essex County
area." He noted that in 1994, a New Jersey state court set counsel fees
in an NJLAD case at $275/hr. "[A]n hourly fee of $285.00 per hour
awarded in 1994-1995 in Flemington offers a reasonable basis upon
which a Court could consider an award of $300.00 per hour for a trial
in Essex County in 1999." (Port Auth. App. V. III, p 91 et seq.)

                                 22
Id. at 2-3. The District Court denied an additional fee award
covering time spent in post-trial matters, finding that such
an award would "stray[ ] outside the reasonable circle to be
drawn around legal services. . . ." Id. at 3. The Court also
declined to award an enhancement based on result or
performance.

In order to establish whether the approved fee award was
reasonable, we turn first to the District Court's acceptance
of the $300 hourly rate. An attorney requesting a fee award
must establish that rate with reference to "the community
billing rate charged by attorneys of equivalent skill and
experience performing work of similar complexity." Student
Public Interest Research Group v. AT&T Bell Laboratories,
842 F.2d 1436, 1450 (3d Cir. 1988). A fee applicant bears
the burden of documenting the applicable hourly rate. In re
TuTu Wells Contamination Litigation, 120 F.3d 368, 391 (3d
Cir. 1997).

A District Court may not set attorney's fees based on a
generalized sense of what is usual and proper but"must
rely upon the record." Smith v. Philadelphia Housing
Authority, 107 F.3d 223, 225 (3d Cir. 1997) (quoting
Coleman v. Kaye, 87 F.3d 1491, 1516 (3d Cir. 1996)). "The
plaintiff bears the burden of producing sufficient evidence
of what constitutes a reasonable market rate for the
essential character and complexity of the legal services
rendered in order to make out a prima facie case." Smith,
107 F.3d at 225. Once the plaintiff has made the prima
facie showing with respect to the appropriate hourly rate,
that rate may be contested, "but only with appropriate
record evidence. In the absence of such evidence, the
plaintiff must be awarded attorneys' fees at her requested
rate." Id. (citations omitted) (emphasis added).

Here, the District Court found that counsel for Evans
succeeded in making a prima facie showing that $300 per
hour was a reasonable market rate. There is nothing in the
record to suggest that the rate set was clearly erroneous.
This case presents an unusual situation, unlikely to recur,
in that the Port Authority failed altogether to challenge the
requested rate. Had the Port Authority met its obligation to
contest that rate in a timely manner it might well have been
able to establish that a lower rate was appropriate. Given

                               23
the state of the record the District Court properly accepted
the $300 hourly rate.10

We address next the Port Authority's contention that the
fee award was inflated when Evans' attorneys each billed
for work on the same projects. We have said that attorneys
seeking fees must document the hours for which payment
is sought "with sufficient specificity to allow the District
Court to determine whether the hours claimed are
unreasonable for the work performed." Washington, 89 F.3d
at 1037. We have defined this to mean that the petitioning
attorney must include fairly definite information as to
hours devoted to various general activities, e.g., partial
discovery, settlement negotiations, and the hours spent by
various classes of attorneys. Id. at 1038. The billing records
submitted by Evans' attorneys were specific enough to meet
this standard.

Once these records were submitted, the District Court
was required to perform a "positive and affirmative function
in the fee fixing process." Maldonado v. Houstoun, 256 F.3d
181, 184 (3d Cir. 2001). A District Court is obligated to
"review the time charged, decide whether the hours set out
_________________________________________________________________

10. The Court summarized events relating to the determination of the
hourly rates as follows:

       The Court ordered both parties to submit certifications of other
       practitioners by April 28, 2000. This directive was objective and
       specific, and as such did not require that the submissions be made
       in an adversarial, point-counter point fashion. After all, [the
Port
       Authority] had known for months what [Evans'] attorneys were
       defending as an appropriate hourly rate. For this reason,
       submissions were due from both parties on the same date. While
       [Evans] submitted [her] certification on time, [the Port Authority]
       requested and was granted a week extension to May 5th. Seen in
       the context of the court's directions of April 14th,[the Port
       Authority]'s claim that it received only one week to submit its
       certification while [Evans] received two weeks is wholly without
       merit . . . [The Port Authority's] work should have begun on April
       14th, and since its submission was not due until May 5th, [the Port
       Authority] had more time, not less time than[Evans]. In light of
this
       . . . I will not reconsider my decision to disregard defendant's
       certification.

(Port Auth. App. V. I, p 13-14).

                               24
were reasonably expended for each of the particular
purposes described and then exclude those that are
`excessive, redundant, or otherwise unnecessary.' " Id.
(quoting Pub. Int. Research Group of N.J., Inc. v. Windall, 51
F.3d 1179, 1188 (3d Cir. 1995)). "Hours that would not
generally be billed to one's own client are not properly billed
to an adversary." Id. "[T]he district court retains a great
deal of discretion in deciding what a reasonable fee award
is . . . ." Bell v. United Princeton Properties, Inc., 884 F.2d
713, 721 (3d Cir. 1989). We have recognized that"[i]n
determining whether the fee request is excessive . .. the
court will inevitably be required to engaged in a fair amount
of `judgment calling' based upon its experience with the
case and its general experience as to how much time a case
requires." Id.

Despite the considerable discretion reserved to the
District Court in the setting of a fee award, our role in
reviewing that award is "not merely a passive[one]."
Maldonado, 256 F.3d at 184. Accordingly, we have
examined the billing records submitted by Evans' attorneys
in light of the Port Authority's contention that the
duplication of effort on the part of Evans' attorneys was
excessive and unreasonable. Our review discloses multiple
instances of duplicative billing for tasks which could not
reasonably have required the identical expenditure of time
by two partners, each billing at $300 per hour. For
example, each of Evans' attorneys billed 23 hours for the
drafting of the complaint in this matter. Substantial
identical hours were also billed by each attorney for
preparing interrogatories, preparing for and attending
depositions, reviewing letters, and reviewing the Port
Authority's disclosures. Both attorneys were present at trial
and each billed time at the full hourly rate.

These instances of precise overlap in both time and task
cause us to conclude that the time claimed is not
reasonable for the services performed. "Given[these
attorneys'] professed expertise . . ., it would not have been
unreasonable to expect" that one of them would have been
able to handle most aspects of this matter, including the
trial "alone or with the help of an associate." Lanni v. New
Jersey, 259 F.3d 146, 151 (3d Cir. 2001). For those tasks

                               25
where it is abundantly clear that the time of two attorneys
was reasonably required, we have suggested that"awarding
fees for [one partner's] time multiplied by an associate's
rate may be justifiable." Id. Given the fairly straightforward
nature of this case, we anticipate that the District Court
will find that few tasks required the full participation of
both attorneys.

It is important that we reiterate our admonition in
Maldonado that fee requests be subjected to a thorough
and searching analysis. Contrary to the suggestion of the
District Court, it is necessary that the Court "go line, by
line, by line" through the billing records supporting the fee
request. Our review of these records convinces us that the
total time billed and the extent of the overlap in work
performed by Evans' attorneys were extraordinary, and
demand more than the cursory examination conducted by
the District Court.

In finding that the fee award is excessive, we do not
ignore the District Court's opinion that substantial fees
were warranted based on the length of the litigation, the
"full blown" trial and the fact that the litigation was
particularly contentious. Nor do we discount the fact that
fees were driven up, in part, because the Port Authority
failed repeatedly to meet time demands imposed by the
court, necessitating expenditure of additional time and
effort to secure compliance. Nonetheless, we are convinced
that the award approved by the District Court more than
accounts for these factors, appears excessive, and must be
reduced substantially. Although its initial analysis of the
fee petition was inadequate, the District Court remains "in
the best position to know the complexity of the issues
presented and the nature and quality of the work
performed by [Evans'] attorneys." Loughner, 260 F.3d at
182 (Nygaard, J., concurring and dissenting). Accordingly,
we will not reduce the fee award ourselves, but will vacate
the order of the District Court approving the award of
attorney's fees and will remand this matter for recalculation
of the award.

VIII.

For the foregoing reasons, we will affirm in all respects
the May 11th order of the District Court denying the Port

                               26
Authority's request for a judgment N.O.V. or, in the
alternative, for a new trial. We will, however, vacate the
judgment and remand this matter to the District Court for
a new trial on the limited issue of compensatory damages
for emotional distress unless Evans elects to file a
remittitur of damages in excess of $375,000. We will vacate
the separate May 11th order of the District Court awarding
Evans' counsel attorney's fees and will remand this matter
for recalculation of the fee award.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               27
