     10-1040-cv (L)
     Bergerson v. Office of Mental Health

 1                                          UNITED STATES COURT OF APPEALS
 2                                             FOR THE SECOND CIRCUIT

 3                                                         August Term 2010

 4                                          Docket Nos. 10-1040-cv (L), 10-1247-cv (XAP)

 5                  Argued: April 11, 2011         Decided: July 21, 2011
 6   _____________________________________________________________________________

 7   CHRISTINE A. BERGERSON,
 8
 9                                              Plaintiff-Appellant-Cross-Appellee,

10                             - v. -

11   NEW YORK STATE OFFICE OF MENTAL HEALTH, CENTRAL NEW YORK
12   PSYCHIATRIC CENTER,

13                           Defendant-Appellee-Cross-Appellant.
14   _____________________________________________________________________________

15   Before: KEARSE, MINER, and CHIN, Circuit Judges.

16           Appeal from a judgment entered February 17, 2010, following a jury trial, in the United
17   States District Court for the Northern District of New York (Hurd, J.), inter alia (1) granting
18   defendant’s motion to bar any award of backpay because plaintiff would be made whole, including
19   for any lost wages, by her compensatory damages award; (2) denying plaintiff’s motion to amend a
20   summary judgment order dismissing her state law claims as abandoned; and (3) granting plaintiff’s
21   motion for reasonable attorney’s fees at the rate of $210 per hour; cross-appeal, designated by
22   defendant as “protective,” from the same judgment arguing against the relief sought by plaintiff.

23                Affirmed in part and vacated and remanded in part.
24                                                               A.J. BOSMAN, ESQ., Bosman Law Firm LLC, Rome,
25                                                               New York, for Plaintiff-Appellant-Cross-Appellee.
26                                                               CECELIA C. CHANG, Assistant Solicitor General (on
27                                                               behalf of Eric T. Schneiderman, Attorney General of
28                                                               the State of New York, Barbara D. Underwood,
29                                                               Solicitor General, and Benjamin N. Gutman, Deputy
30                                                               Solicitor General, of counsel), New York, New York,
31                                                               for Defendant-Appellee-Cross-Appellant.




                                                                     1
1    MINER, Circuit Judge:

2            Plaintiff-appellant-cross-appellee, Christine Bergerson,1 appeals from a judgment entered

3    February 17, 2010, following a jury trial, in the United States District Court for the Northern District

 4   of New York (Hurd, J.). Defendant-appellee-cross-appellant, the New York State Office of Mental

 5   Health, Central New York Psychiatric Center (“CNYPC”), interposes a cross-appeal, designated as

 6   “protective,” from the same judgment. Bergerson brought the action giving rise to the appeal under

 7   the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–17 (2006), claiming

 8   compensatory damages for disparate treatment and hostile work environment. She also brought

 9   parallel state law claims under the New York Human Rights Law. N.Y. Exec. Law §§ 290–301

10   (McKinney 2010). Bergerson additionally sought backpay and reinstatement under Title VII and

11   attorneys’ fees. Prior to trial, the District Court ruled that neither the issue of backpay nor

12   reinstatement (or front pay) would be submitted to the jury and that the court would hold a separate

13   inquest on the issue of backpay and front pay if the jury returned a verdict in Bergerson’s favor.

14           A jury trial was conducted in October 2009. Following trial, the jury found for Bergerson,

15   awarding her $580,000 in compensatory damages, which amount was thereafter reduced by the

16   District Court to the federal statutory cap of $300,000. The parties then made numerous post-trial

17   motions, several of which are at issue in this appeal. First, CNYPC filed a motion to bar any award

18   of backpay, which motion was granted by the court. Without holding a separate inquest into

19   backpay and without having submitted the issue to the jury, the court found that “the magnitude of

20   the jury’s award ensures that [Bergerson] will be made whole for her injuries, including for any lost

21   wages,” and for any “pain, suffering, or emotional distress.”

22           Bergerson moved, under Federal Rule of Civil Procedure 54(b), to amend the court’s April

23   2009 decision granting summary judgment dismissing her state law claims as abandoned. By the

24   motion, Bergerson sought to remove any reference to her having “abandoned” her state law claims


             1
               Bergerson apparently changed her last name to Fuller. Because she filed her appeal under the name
     “Christine Bergerson,” we refer to her by that name in this opinion.

                                                          2
 1   and instead asked the court to decline to exercise supplemental jurisdiction over her state law claims.

 2   She also moved for attorneys’ fees, requesting an hourly rate of $275 for her trial counsel. As to the

 3   former, the court denied the motion, finding that Bergerson indeed abandoned her state law claims

 4   and, furthermore, that Bergerson did not oppose the court’s dismissal until over six months later.

 5   As to Bergerson’s application for attorneys’ fees, the court awarded fees for all hours claimed by

 6   Bergerson’s counsel but found the “prevailing hourly rate” in the Northern District to be $210 and

 7   awarded fees to Bergerson’s trial counsel at that rate.

 8           On appeal, Bergerson challenges the District Court’s rulings on the post-trial motions

 9   regarding backpay, her state law claims, and the hourly rated applied to the award of attorney’s fees.

10   In its cross-appeal, designated as “protective,” CNYPC argues against the relief sought by plaintiff,

11   contending: (1) that the District Court acted within its discretion in both declining to amend its prior

12   order dismissing Bergerson’s state law claims and in awarding attorney’s fees at the rate of $210 per

13   hour; and (2) that remand is appropriate to “enable the district court to clarify its post-trial rulings as

14   to compensatory damages and backpay.” For the following reasons, we affirm the District Court’s

15   judgment as to Bergerson’s state law claims and attorney’s fees, but we vacate and remand to the

16   District Court on the issues of backpay and front pay.

17                                              BACKGROUND
18   I.      Bergerson’s Employment with the Office of Mental Health
19           The following background facts are derived from the evidence adduced on Bergerson’s

20   behalf and are not contested on appeal. Bergerson was hired by the CNYPC as a probationary

21   security hospital treatment assistant on September 10, 2004. From the very beginning of her

22   employment, her coworkers made ongoing derogatory sexual comments about females in general

23   and about Bergerson in particular. Many employees expressed the opinion that the CNYPC was not

24   an appropriate place for females to work. Jokes, wise-cracks, and comments such as “women

25   should stay barefoot and pregnant” were common. At least one poster was hung portraying




                                                          3
 1   Bergerson in a lewd manner. Computer screen savers inferring lewd conduct were also displayed on

 2   several occasions in work areas to which Bergerson was exposed.

 3           Sexual comments were made about Bergerson, who is Caucasian, her alleged promiscuity,

 4   and her alleged attraction to African-American men. One African-American coworker was told that

 5   he should hook up with Bergerson because she “did the bros.” Coworkers made comments about

 6   the type of undergarments that Bergerson wore. Rumors were spread about her dating and sex life,

 7   and she was blamed for the breakup of a coworker’s marriage. It was also rumored that Bergerson

 8   was having sex with facility doctors in exchange for money. Racial comments were also directed

 9   toward her, such as “once you go black you don’t go back,” and rumors were spread that she was

10   dating an African-American supervisor, Keith Richardson, although they were apparently “just

11   friends” for most of Bergerson’s employment.2

12           Bergerson made multiple unsuccessful complaints about her workplace environment to her

13   supervisors. In one instance, a female supervisor responded to Bergerson’s complaints by telling her

14   that it was a “man’s environment” and that she should “just deal with it.” At one point, Bergerson

15   took advantage of counseling through CNYPC’s Employee Assistance Program.

16           Because Bergerson was hired as a probationary employee, the terms of her employment

17   imposed a 52-week “probationary period.”3 During the probationary period, a probationary

18   employee is reviewed periodically and is evaluated in nine work-performance categories, if
19   applicable: Quality of Work; Work Habits, Work Interest; Resourcefulness; Relationship with

20   People; Reaction to Supervisor; Attendance; Analytical and Problem Solving Abilities; Written and

21   Oral Presentation; and Ability to Supervise. Each evaluation results either in termination or in


             2
                Bergerson eventually began a romantic relationship with Richardson, the timing of which is not
     entirely clear. See generally United States v. Reeves, 591 F.3d 77, 81 (2d Cir. 2010) (observing that “[w]hat
     makes a relationship ‘romantic,’ let alone ‘significant’ in its romantic depth, can be the subject of endless
     debate that varies across generations, regions, and genders”).
             3
               The New York Administrative Code defines “probationary term” and sets forth the scope of
     probationary employment, including the requirement that “every permanent appointment . . . shall be subject
     to a probationary term of not less than 26 nor more than 52 weeks.” N.Y. Comp. Codes R. & Regs. tit. 4, §
     4.5 (2011).

                                                            4
 1   continuation of the employee’s probationary period. Bergerson’s performance was evaluated on five

 2   occasions.

 3           Bergerson’s first evaluation, in December 2004, reflected an average rating for all categories

 4   except “Relationship with People.” The evaluator’s comment in rating her below average in that

 5   category indicated that she needed to work on acceptance by her peers. Bergerson’s second

 6   evaluation took place on March 14, 2005. She was rated average in four categories. However, she

 7   was rated below average in the “Relationship with People” category and unacceptable in the

 8   “Quality of Work,” “Work Habits, Work Interest,” and “Attendance” categories. There were

 9   comments written in the “additional information” section indicating that Bergerson should have

10   more knowledge of policy and procedure, follow protocol, be able to keep track of her keys, and

11   know the census and the whereabouts of her patients at all times. It was recommended that

12   probation be continued. Bergerson’s third evaluation, on June 12, 2005, reflected an average rating

13   in all categories. It was again recommended that her probation should continue. Her evaluator

14   made an oral comment, however, that it was not in Bergerson’s “best interest” to continue her

15   alleged “relationship with Richardson.”

16           Bergerson’s fourth evaluation was completed on September 3, 2005. She was rated average

17   in five categories, below average in the “Relationship with People” and “Reaction to Supervisor”

18   categories, and unacceptable in “Attendance.” While her direct supervisor acknowledged that
19   Bergerson did not have any unscheduled absences and was always on time, the supervisor

20   nonetheless noted that he was unable to give a proper evaluation of Bergerson’s performance

21   because she did “so many mutuals/swaps that she rarely worked her scheduled time and shift.”4 In

22   order for the supervisor to evaluate Bergerson properly in the future, she was thereafter restricted



             4
                “Mutuals” are shift swaps between employees. If an employee has a conflict with the work
     schedule to which he or she was assigned, the employee could find another employee who would work that
     shift. In return, the first employee would cover one of the second employee’s shifts, as mutually agreed. In
     addition to the two employees’ agreement, their respective supervisors were required to approve such
     mutuals.

                                                           5
 1   from doing mutuals. On September 12, 2005, the CNYPC extended Bergerson’s probationary

 2   period an additional six months and provided her with written notice of the extension.

 3           Bergerson’s fifth and final evaluation was completed on January 18, 2006, approximately two

 4   months before the end of her extended probationary period. The evaluator ranked Bergerson

 5   average in “Written and Oral Presentation” and below average in “Quality of Work,” “Work Habits,

 6   Work Interest,” “Attendance,” and “Analytical and Problem Solving Abilities.” She was ranked

 7   unacceptable in “Resourcefulness,” “Relationship with People,” and “Reaction to Supervisor.”

 8   There were no additional comments.

 9           Following her final evaluation, on January 24, 2006, CNYPC notified Bergerson that her

10   employment would be terminated effective January 31, 2006, and that she would be on

11   administrative leave until that date. As a result, she requested an interview with her supervisor,

12   which was granted and thereafter took place on January 31, 2006. On February 9, 2006, Bergerson

13   was informed by letter that no new information had surfaced at the interview that would overturn

14   the termination decision.

15   II.     Proceedings in the District Court

16           Following her termination, Bergerson commenced the Title VII action on December 8,

17   2006, by filing a complaint alleging discrimination claims based on disparate treatment, hostile work

18   environment, and retaliation. She claimed that she was terminated in part because of her gender and
19   her relationship with Richardson, an African-American coworker. She also brought three parallel

20   state law claims under the New York Human Rights Law. See N.Y. Exec. Law §§ 290–301

21   (McKinney 2010).

22           In June 2008, CNYPC moved for summary judgment. As to the state law claims, CNYPC

23   argued that Bergerson’s claims were barred by the Eleventh Amendment. In response, Bergerson

24   conceded legal error and expressly “withdr[ew]” those claims. See Pl.’s Mem. of Law in Opp’n to

25   Summ. J. at 1 (“Plaintiff concedes that the Eleventh Amendment bars the State-based claims and

26   accordingly withdraws the second, fourth and sixth causes of action.”). On April 21, 2009, the


                                                        6
 1   District Court issued a memorandum decision and order. In that decision, the court, based on

 2   Bergerson’s concession regarding her state law claims, dismissed those claims as “abandoned by

 3   plaintiff.”5

 4           However, the District Court denied CNYPC’s summary judgment motion as to Bergerson’s

 5   disparate treatment and hostile work environment claims, finding that Bergerson “ha[d] adduced

 6   sufficient evidence to establish a prima facie case.” With respect to Bergerson’s disparate treatment

 7   claim, the court found that “Bergerson has set forth circumstantial evidence of disparate treatment

 8   based upon interracial associations as well as temporal proximity.” The court noted that although it

 9   was unclear when Bergerson started dating Richardson, she adduced evidence that rumors

10   “abounded” well before they actually started dating and that coworkers commented derogatorily

11   about Bergerson’s alleged attraction toward African-American men. The court also found that,

12   depending on which testimony a jury would credit, there was a temporal connection between the

13   commencement of Bergerson’s interracial relationship with Richardson and her termination. As to

14   Bergerson’s hostile work environment claim, the court found that “[a]lthough it is a close question

15   in this case . . . it is best left for the jury to decide whether the work environment is sufficiently

16   hostile so as to constitute a change in the term, condition, or privilege of Bergerson’s employment.”
17           The case proceeded to a jury trial in October 2009.6 The jury was asked to determine liability
18   and, if CNYPC were found liable, to assess compensatory damages for “Pain, Suffering, and
19   Emotional Distress” and “Harm to Reputation.” Bergerson also sought backpay and reinstatement

20   (or front pay) under Title VII, but those issues were not submitted to the jury. Instead, the court

21   reserved decision on those applications and indicated that it would decide whether Bergerson was

22   entitled to such awards on post-trial submissions if the jury returned a verdict in her favor.

23   Following trial, the jury found for Bergerson, awarding her compensatory damages in the amount of

             5
               The District Court also dismissed Bergerson’s retaliation claim, finding that she did not exhaust her
     administrative remedies. That dismissal is not at issue on appeal.
             6
               Shortly before trial, Bergerson filed a stipulation for consent to change attorney, substituting
     attorney Paul N. Cisternino with attorney A.J. Bosman, who remains her counsel on appeal.

                                                             7
 1   $130,000 on her disparate treatment claims ($30,000 for “pain, suffering, and emotional distress”

 2   and $100,000 for “harm to reputation”) and $450,000 on her hostile work environment claim

 3   ($200,000 for “pain, suffering, and emotional distress” and $250,000 for “harm to reputation”).

 4           On November 3, 2009, CNYPC moved for judgment as a matter of law or a new trial

 5   pursuant to Federal Rules of Civil Procedure 50(b) and 59, respectively. With respect to damages

 6   and backpay, CNYPC sought: (1) to vacate the jury’s damages award as unsupported by the

 7   evidence; or (2) in the alternative, to reduce the award to $300,000, which is the maximum amount

 8   allowable under the statutory cap on awards of noneconomic damages under Title VII imposed by

 9   42 U.S.C. § 1981a(b)(3)(D); and (3) to preclude a further award of backpay if the court did not

10   vacate the jury’s damages award. In response, on November 17, 2009, Bergerson cross-moved

11   under Federal Rule of Civil Procedure 54(b) to amend the court’s summary judgment order to delete

12   any reference to her having “abandoned” her state law claims. Bergerson did so because she wished

13   to re-file her state law claims (which are not subject to a statutory cap on damages) in state court.

14           At a November 25, 2009 hearing, the District Court granted CNYPC’s motion in part.

15   Although the court declined to vacate the jury’s damages award — finding it supported by the

16   evidence — the court reduced the damages award to $300,000 as required by Title VII’s statutory

17   cap. The court also granted CNYPC’s motion to preclude an additional award of backpay. As to

18   Bergerson’s motion, the court refrained from amending its summary judgment order to remove the
19   reference to Bergerson having “abandoned” her state law claims. The court noted that Bergerson

20   had in fact abandoned those claims by withdrawing them and by not opposing dismissal and,

21   moreover, that she had waited until after trial — “over six months” after the summary judgment

22   order issued — before seeking modification.

23           On December 9, 2009, Bergerson moved for reconsideration of the court’s backpay ruling

24   and also reaffirmed her demand for front pay and/or reinstatement. Upon reconsideration, the

25   court again denied backpay by a February 16, 2010 Decision and Order. In the same Decision and

26   Order, the court declined to rule on the issue of “front pay and/or reinstatement” because it was not


                                                        8
 1   raised in the defendant’s motion for judgment as a matter of law or a new trial. The court

 2   acknowledged that a central purpose of Title VII is “to make a plaintiff whole for injuries that are a

3    violation of the statute.” Although “the jury did not consider [Bergerson’s] lost wages,” and

4    although the court had denied CNYPC’s motion to modify the jury’s award as excessive, the court

5    nonetheless concluded that the jury’s “substantial damages award satisfie[d]” Title VII’s make-whole

6    policy. The court found that “the magnitude of the jury’s award ensures that [Bergerson] will be

7    made whole for her injuries, including for any lost wages,” and for any “pain, suffering, or emotional

 8   distress.”7

 9           Bergerson also moved for attorney’s fees, requesting, to the extent pertinent to this appeal,

10   an hourly rate of $275 for the work of her trial counsel. In response, the court awarded fees for all

11   hours and expenses claimed but reduced the hourly rate to $210, which the court found to be the

12   “prevailing hourly rate[]” in the Northern District for experienced attorneys in civil rights matters.

13   Final judgment was entered on February 17, 2010, awarding Bergerson $300,000 in compensatory

14   damages and $86,008.40 in attorney’s fees and costs. Bergerson appeals from the final judgment and

15   CNYPC cross appeals.

16           On appeal, Bergerson claims: (1) the District Court erred in granting CNYPC’s motion to

17   preclude backpay awards and, rather, that she is entitled to both back and front pay and/or

18   reinstatement; (2) the District Court abused its discretion in denying her 54(b) motion to amend the

19   summary judgment with respect to her state law claims; and (3) the District Court abused its

20   discretion in awarding attorneys’ fees at $210. In cross-appeal, designated as “protective,” CNYPC

21   argues: (1) remand is appropriate to “enable the district court to clarify its post-trial rulings as to

22   compensatory damages and backpay”; and (2) the District Court acted within its discretion both in




             7
              The court did not refer to Bergerson’s probationary status in its written order in ruling on
     Bergerson’s motion for reconsideration. The court had previously stated, in its ruling from the bench upon
     CNYPC’s post-trial motion to preclude an award of backpay, that Bergerson “was a probationary employee
     and could have been terminated for any reason except, of course, for a discriminatory one.”

                                                          9
 1   declining to amend its prior order dismissing Bergerson’s state law claims and in awarding attorney’s

 2   fees at the rate of $210 per hour.

 3                                                DISCUSSION

 4   I.      Standard of Review

 5           We review a district court’s denial of backpay under Title VII, the denial of a Rule 54(b)

 6   motion for amendment, and an award of attorney’s fees for abuse of discretion. See Albemarle

 7   Paper Co. v. Moody, 422 U.S. 405, 424 (1975) (denial of backpay); Official Comm. of Unsecured

 8   Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (Rule

 9   54(b) motion); McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 416 (2d Cir. 2010) (award of

10   attorney’s fees). A district court abuses its discretion when it rests its decision on an “erroneous

11   view of the law or on a clearly erroneous assessment of the evidence, or render[s] a decision that
12   cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d
13   Cir. 2008) (internal quotation marks and citations omitted). Abuse of discretion “takes on special

14   significance when reviewing fee decisions because the district court, which is intimately familiar with

15   the nuances of the case, is in a far better position to make such decisions than is an appellate court,

16   which must work from a cold record.” McDaniel, 595 F.3d at 416 (alterations and quotation marks

17   omitted). With respect to backpay and front pay, we have stated that because “[t]he award of front

18   pay is discretionary, . . . where . . . the district court makes a [nonerroneous] specific finding that an
19   award of back pay [or front pay] was sufficient to make a plaintiff whole, no abuse of discretion can

20   be found.” Saulpaugh v. Monroe Cnty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993).

21   II.     Bergerson’s Title VII Claims

22           A.      Backpay

23           Section 1981a permits a Title VII claimant (and other claimants not at issue here) to recover

24   compensatory damages to redress “future pecuniary losses, emotional pain, suffering, inconvenience,

25   mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3)




                                                         10
 1   (2006). These damages may be awarded in addition to economic damages consisting of “backpay . .

 2   . or any other type of relief authorized under [42 U.S.C. § 2000e-5(b)].” Id. § 1981a(b)(2).

 3          “An award of backpay is the rule, not the exception.” Carrero v. New York City Hous.

 4   Auth., 890 F.2d 569, 580 (2d Cir. 1989). The decision to award backpay is “measured against the

 5   purposes which inform Title VII,” Albemarle, 422 U.S. at 417, which include “remov[ing] the stain

 6   discrimination leaves on equality in the workplace” and “mak[ing] victims of discrimination whole,”

 7   Carrero, 890 F.2d at 580. The Supreme Court has explained that the primary objective of Title VII

 8   is prophylactic in nature because the statutory scheme was intended to eliminate past obstacles to

 9   workplace equality. See Albermarle, 422 U.S. at 417. Although a trial court has discretion whether
10   to award backpay, its reasons must be explained in the event backpay is denied. See id. at 421 n.14;
11   Carrero, 890 F.2d at 580. Its explanation must be sufficient “so as to make review intelligible.”

12   Carrero, 890 F.2d at 580. Front pay is awarded at the discretion of a district court where

13   reinstatement is inappropriate and the plaintiff has been unable to find another job. Saulpaugh, 4

14   F.3d at 145. The purpose of front pay is to “mak[e] victims of discrimination whole in cases where

15   the factfinder can reasonably predict that the plaintiff has no reasonable prospect of obtaining

16   comparable alternative employment.” Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 125–26

17   (2d Cir. 1996) (internal quotation marks omitted).

18          During the trial, the District Court stated that it would hold a separate inquest to determine
19   the amount of backpay and front pay due to Bergerson only if CNYPC were found by the jury to be

20   liable under Title VII. After finding CNYPC liable, the jury was asked to award compensatory

21   damages for only two categories of harm: (1) emotional distress, pain, and suffering; and (2) harm to

22   Bergerson’s reputation. The jury was not asked to “consider [Bergerson’s] lost wages” and was

23   presented with no evidence on this issue.

24          Post-trial, the District Court determined that the jury’s damages award was supported by the

25   evidence and accordingly denied CNYPC’s motion to vacate or reduce the damages award except to

26   the extent of reducing the award to the statutory maximum. However, at the same time and without


                                                       11
 1   holding a separate inquest, the court also denied Bergerson an equitable award of backpay on the

 2   ground that the jury’s award was sufficient to make her whole, including for her claim of lost wages.

 3   In so finding, the court noted:

 4           [Bergerson’s] substantial damages award satisfied both of the objectives of Title VII.
 5           Instead of merely having to comply with an injunctive order prohibiting racial
 6           discrimination and hostility in the work environment, [CNYPC] must pay
 7           [Bergerson] $300,000 in compensatory damages as a result of its unlawful
 8           employment practices. . . . Additionally, the magnitude of the jury’s award ensures
 9           that [Bergerson] will be made whole for her injuries, including any lost wages, pain,
10           suffering, or emotional distress.
11   The court recognized that the jury had heard no evidence on backpay but nevertheless found that

12   the award returned Bergerson to the position she would have found herself in had the violations

13   never occurred.

14           We are unable to adopt this view. While a primary purpose of backpay is indeed to return a

15   victim of discrimination to the position she would have found herself in had the violations never

16   occurred, we have never held that an award of backpay is encompassed within a jury’s award of

17   compensatory damages. Indeed, such a view has been foreclosed by § 1981a. Rather, an award of

18   backpay includes “what the employee himself would have earned had he not been discharged.”

19   Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 166 (2d Cir. 1998); see also Saulpaugh, 4 F.3d at 144–45

20   (observing that, ordinarily, a plaintiff is entitled to losses suffered as a result of defendant’s

21   discrimination (i.e., from the date of termination until the date of judgment)). An award of backpay

22   is a separate inquiry and requires a district court to make additional factual findings. See Brock v.
23   Casey Truck Sales, Inc., 839 F.2d 872, 880 (2d Cir. 1988) (“These amounts [of backpay] were
24   carefully arrived at by determining first each discharged employee’s hourly wage rate and the

25   duration of his loss period.”).

26           Because a backpay award requires a separate inquest, a district court may not deny an award

27   of backpay because it believes that an award of compensatory damages is sufficient. Either an award

28   includes backpay or it does not. We also note that the District Court never found the compensatory

29   damages award to be excessive; rather, upon CNYPC’s motion to vacate the jury’s damages award as


                                                          12
 1   unsupported by the evidence, the court instead reduced the damages award to the statutory cap of

 2   $300,000. Accordingly, on remand, the court is directed to hold a separate inquest as to backpay.

 3   Of course, we are not requiring the District Court to award backpay to Bergerson; however, if the

 4   court declines to award backpay, it must “carefully articulate its reasons,” Albemarle, 422 U.S. at 421

 5   n.14, keeping in mind that “[a]n award of backpay is the rule, not the exception,” Carrero, 890 F.2d

 6   at 580.

 7             B.      Front Pay

 8             Bergerson also sought an award of front pay. Front pay may be awarded pursuant to section

 9   706(g) of the Civil Rights Act of 1964, which provides a court with authority to “order such

10   affirmative action as may be appropriate,” including but not limited to “reinstatement or hiring of

11   employees, with or without back pay . . . or any other equitable relief as the court deems
12   appropriate.” 42 U.S.C. § 2000e-5(g)(1) (2006); Pollard v. E.I. du Pont de Nemours & Co., 532 U.S.
13   843, 853–54 (2001). An award of front pay is an alternative to reinstatement where reinstatement is

14   “inappropriate,” Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1182 (2d Cir. 1996), such as where

15   there is animosity between an employer and an employee or where there is no longer a position

16   available at the time of judgment, Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir.

17   1984) (describing reinstatement and front pay under the Age Discrimination in Employment Act).

18   An award of front pay is discretionary, and if a district court makes a nonerroneous “specific
19   finding” that a plaintiff has already been made whole, no abuse of discretion can be found in

20   denying front pay. See Saulpaugh, 4 F.3d at 145.

21             Because we hold that the District Court abused its discretion in its “specific finding” that

22   Bergerson was not entitled to backpay, we cannot assume, as CNYPC would have us do, that front

23   pay is likewise not warranted. The court thus should consider in the first instance on remand

24   whether Bergerson is entitled to reinstatement or, in the alternative, front pay, see Thompson v.

25   Cnty. of Franklin, 15 F.3d 245, 253 (2d Cir. 1994) (holding that the “preferred practice” in this

26   Circuit is to remand the issue for the district court to consider in the first instance), keeping in mind


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 1   that “front pay is excluded from the statutory cap,” Pollard, 532 U.S. at 852; accord Robinson v.

 2   Metro-North Commuter R.R. Co., 267 F.3d 147, 157–58 (2d Cir. 2001) (citing Pollard and noting

 3   that front pay is an equitable remedy). In its consideration of this issue, the District Court may

 4   conduct further proceedings as necessary to determine Bergerson’s employment status (i.e.,

 5   probationary or permanent).

 6   III.    State Law Claims

 7           Bergerson argues that the District Court abused its discretion by refusing to modify its April

 8   21, 2009 Memorandum Decision and Order, which, inter alia, dismissed her state law claims as

 9   “abandoned by plaintiff.” She contends that the court instead should have “withdr[awn] its

10   ‘abandonment’ reference, and decline[d] supplemental jurisdiction.” Had the court done so,

11   Bergerson contends that she would have been able to re-file, pursuant to New York’s savings clause,

12   her state law claims in state court in order to seek damages above and beyond the $300,000 cap that
13   exists in federal court. See N.Y. Exec Law § 297(9) (McKinney 2005); see also Rahiym-Amir v.
14   Bellamy of Corinth, Inc., No. 1:04-CV-121, 2007 WL 4573409, at *4 (N.D.N.Y. Dec. 26, 2007)

15   (“Unlike Title VII, there is no limitation on an award of compensatory damages under New York

16   Human Rights Law.”); Walia v. Vivek Purmasir & Assocs., Inc., 160 F. Supp. 2d 380, 389 (E.D.N.Y.

17   2000) (holding that while damages on plaintiff’s Title VII claims were capped, she was not precluded

18   from seeking to recover additional damages under the New York Human Rights Law).
19           While a district court has the authority to revise an interlocutory order, such as a partial

20   denial of summary judgment, at any time before the entry of final judgment, see Fed. R. Civ. P.

21   54(b), this Court has treated interlocutory decisions as law of the case. A district court may revisit

22   such decisions but with the caveat that “where litigants have once battled for the court’s decision,

23   they should neither be required, nor without good reason permitted, to battle for it again.” Coopers

24   & Lybrand, 322 F.3d at 167 (internal quotation marks omitted). Thus generally, there is a strong

25   presumption against amendment of prior orders. See id. (citing Virgin Atl. Airways, Ltd. v. Nat’l

26   Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (holding that a prior order usually may not be


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 1   changed unless there is an “intervening change of controlling law, the availability of new evidence,

 2   or the need to correct a clear error or prevent a manifest injustice”) (internal quotation marks

 3   omitted)).

 4           Bergerson has not argued here that there has been an intervening change of controlling law

 5   or that new evidence has become available. Thus we construe her argument to be that there is a

 6   need to correct a clear error or prevent manifest injustice. We do not believe that these conditions

 7   have been met for the following reasons.

 8           The New York Civil Practice Laws and Rules provides:

 9           If an action is timely commenced and is terminated in any other manner than by a
10           voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant,
11           a dismissal of the complaint for neglect to prosecute the action, or a final judgment
12           upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives,
13           his or her executor or administrator, may commence a new action upon the same
14           transaction or occurrence or series of transactions or occurrences within six months
15           after the termination provided that the new action would have been timely
16           commenced at the time of commencement of the prior action and that service upon
17           defendant is effected within such six-month period.
18   N.Y. C.P.L.R. § 205(a) (McKinney 2003 & Supp. 2011) (emphases supplied). Here, we need not

19   decide whether the District Court’s grant of summary judgment in favor of CNYPC as to

20   Bergerson’s state law claim, finding them “abandoned by plaintiff,” was a decision on the merits.

21   Even if it were not — thus leaving Bergerson with the benefit of § 205(a) — Bergerson did not seek

22   to re-file her state law claims in state court within the 6-month period proscribed by the statute.

23   Nor did she raise the issue before the District Court during this period; rather, she first contested

24   the court’s order on November 17, 2009, nearly seven months after the court’s grant of summary

25   judgment. As the District Court further noted, Bergerson never “cite[d] any legal authority

26   compelling the modification of the prior order nor provide[d] an explanation for why this issue was

27   not raised in her response to defendant’s summary judgment motion.” While Bergerson has argued

28   that her then counsel “could not anticipate” the results of conceding error and withdrawing the state

29   law claims, all litigants are “bound by the concessions of freely retained counsel.” Hoodho v.

30   Holder, 558 F.3d 184, 192 (2d Cir. 2009).


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 1           Because Bergerson did not pursue the matter diligently in the District Court, we conclude

 2   that Bergerson abandoned her state law claims. Accordingly, the court did not abuse its discretion in

 3   denying Bergerson’s motion to remove its “abandonment” reference.

 4   IV.     Attorney’s Fees

 5           Bergerson claims that the District Court abused its discretion by declining to award what she

 6   characterizes as “the reasonable rate of $275.00 per hour for her trial attorneys,” instead awarding

 7   attorneys’ fees at a rate of $210 per hour. She contends that a $210 hourly rate no longer represents

 8   the prevailing rate for experienced civil rights attorneys in the Northern District of New York and

 9   claims that the applicable rate is in the range of $250 and above.

10           Attorneys’ fees are awarded by determining a presumptively reasonable fee, reached by
11   multiplying a reasonable hourly rate by the number of reasonably expended hours. See Simmons v.
12   N.Y. City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009). The reasonable hourly rate should be

13   “‘what a reasonable, paying client would be willing to pay,’ given that such a party wishes ‘to spend

14   the minimum necessary to litigate the case effectively.’” Id. (quoting Arbor Hill Concerned Citizens

15   Neighborhood Ass’n v. Cnty. of Albany, 493 F.3d 110, 112, 118 (2d Cir. 2007), amended on other

16   grounds by 522 F.3d 182 (2d Cir. 2008)). This Circuit’s “forum rule” generally requires use of “the

17   hourly rates employed in the district in which the reviewing court sits in calculating the

18   presumptively reasonable fee.” Simmons, 575 F.3d at 174 (internal quotations omitted). Fees
19   should not be awarded at higher out-of-district rates unless “a reasonable client would have selected

20   out-of-district counsel because doing so would likely . . . produce a substantially better net result.”

21   Id. at 172.

22           Here, the District Court, quoting Picinich v. United Parcel Serv., No. 5:01-CV-01868, 2008

23   WL 1766746, at *2 (N.D.N.Y. Apr. 14, 2008), found that “‘[t]he prevailing hourly rates in this

24   district, which are what a reasonable, paying client would be willing to pay, are $210 per hour for an

25   experienced attorney, $150 per hour for an attorney with more than four years experience, $120 per

26   hour for an attorney with less than four years experience, and $80 per hour for paralegals.’” The


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 1   study upon which Picinich ultimately relies was undertaken by a district court in the Northern

 2   District in 2005. See Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, No.

 3   03-CV-502, 2005 WL 670307, at *7 (N.D.N.Y. Mar. 22, 2005). Since that time, more recent surveys

 4   in Northern District cases have indicated that, for a civil rights matter, the prevailing rate in the

 5   Northern District is higher than $210. See, e.g., Luessenhop v. Clinton County, N.Y., 558 F. Supp.

 6   2d 247, 266 (N.D.N.Y. 2008); Martinez v. Thompson, No. 9:04-cv-0440, 2008 WL 5157395, at *14

 7   (N.D.N.Y. Dec. 8, 2008).

 8           In other cases, however, courts in the Northern District have continued to apply the rates set

 9   forth in Arbor Hill. See, e.g., Lewis v. City of Albany Police Dept., 554 F. Supp. 2d 297, 298–301
10   (N.D.N.Y. 2008); Paramount Pictures Corp.v. Hopkins, No. 5:07-CV-593, 2008 WL 314541, at *5
11   (N.D.N.Y. Feb. 4, 2008). Given that these courts have continued to adhere to the rates set forth in

12   Arbor Hill, the District Court’s award of attorney’s fees at $210 per hour is “located within the range

13   of permissible decisions” and does not rest on an “erroneous view of the law.” See Sims, 534 F.3d

14   at 132 (internal quotation marks omitted). Thus because our review is for abuse of discretion, we

15   hold that the District Court’s award, while perhaps lagging behind the market, was not an abuse of

16   the court’s discretion.

17                                               CONCLUSION
18           Accordingly, we AFFIRM the decision below as to the dismissal of Bergerson’s state law

19   claims and the court’s award of attorneys fees but VACATE the decision as to the court’s denial of

20   backpay, and REMAND the case to the district court for further proceedings consistent with this

21   opinion, including consideration of whether there should be reinstatement or an award of front pay.




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