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Pickens v. Southeastern Pennsylvania Transportation Authority

United States District Court, E.D. Pennsylvania

August 29, 2017

JAMES J. PICKENS, Plaintiff,


          ANITA B. BRODY, J.

         In 2015, Plaintiff James Pickens, a mechanic, brought suit against his current employer, Defendant Southeastern Pennsylvania Transportation Authority (“SEPTA”). Pickens asserted two Title VII causes of action, a failure to promote claim and a retaliation claim. ECF No. 1. A five-day jury trial was held from February 27 to March 3, 2017. ECF No. 53. The jury found against Pickens' on his failure to promote claim, but found in his favor on the retaliation claim. The jury awarded Pickens nominal damages of $1.00. ECF No. 60.

         Because I ruled that any economic losses would be considered post-trial, Pickens now moves for an award of lost wages, specifically for lost overtime pay, which he alleges stems from the retaliation he suffered. He also seeks back pay for the five days he was present at trial, ECF No. 59, as well as attorney's fees and costs. For the reasons set forth below, Pickens' motion for lost wages is denied, and his motion for attorney's fees and costs is granted in part and denied in part.

         I. BACKGROUND

         Plaintiff James Pickens, an African American, is a second-class mechanic currently employed by Defendant SEPTA at the Berridge Shop. In 2012, Pickens sought a promotion to first-class mechanic. In August of that year, he was denied the promotion and he asserted that the promotion protocol, which included a series of on-the-job trainings and a performance exam, was infected by racial discrimination. He also asserted that after he complained to management about his promotion denial and filed a complaint with the Equal Opportunity Employment Commission (“EEOC”), SEPTA retaliated against him. He claimed that he was subjected to coworker abuse, and that management retaliated against him by issuing him a series of disciplinary infractions and assigning him to do repair work in a burdensome area of the shop.

         In 2015, Pickens filed a Complaint against SEPTA in which he alleged several acts of retaliation, including abusive treatment and undeserved disciplinary write-ups. ECF No. 1. But in the lead up to and during trial, Pickens expanded his theory of retaliation. In his pretrial memorandum, Pickens asserted that SEPTA's retaliatory conduct included a restriction on his ability “to work overtime.” ECF No. 24 at 4. Pickens also testified at trial, albeit briefly, that he felt his overtime opportunities were restricted after he complained of discrimination. Trial Tr. vol. 1, 78:9-21, Feb. 27, 2017. However, in his proposed jury instruction, he listed only “work assignments and harassment by SEPTA's employees” as ways the jury could find retaliation. ECF No. 25 at 22. The jury was consequently not instructed on lost overtime as a form of retaliation.

         On June 13, 2017, an oral argument and evidentiary hearing was held on the issue of lost wages and attorney's fees. ECF No. 72. At the hearing, Pickens did not call any witnesses, but presented evidence of overtime receipts and pay stubs. SEPTA called one witness, Mike Civera, former Director of Maintenance, to testify to the overtime procedures at the Berridge Shop.

         Between 2010 and 2014, Pickens worked the following number of overtime hours:


Hours of Overtime








24 (all in January)


72.5 (all before 3/29/14)

Pl.'s Br. Lost Wages 3, ECF No. 77. Pickens claims his overtime pay was restricted during the following periods:

• February 1, 2013 - December 31, 2013 (immediately after filing his EEOC complaint on January 30, 2013). ECF No. 77 at 9.
• March 29, 2014 - May 31, 2014.[1] ECF No. 77 at 9.

         Pickens also provides the overtime numbers for all other second-class mechanics during the periods of alleged retaliation. The overtime numbers are as follows:

All of 2013[2]

3/29/14 - 5/31/14[3]

All of 2014

B. Petrocelli




L. Simmins




D. Stevens




D. Fleming




L. Council




W. Ditheodore


Not provided

Not provided

D. Berry


Not provided

Not provided

R. Toby




F. Suarez




D. Taylor




M. Butler[5]




J. Pickens

24 (all in January)



Pl.'s Br. Lost Wages 5-7, ECF No. 77.

         For lost wages stemming from retaliatory denial of overtime, Pickens seeks an award commensurate with his “average overtime over the years.” Pl.'s Br. Lost Wages 9, ECF No. 77. For 2013, this amounts to approximately $9, 000 for the eleven months he did not work overtime. For the second quarter of 2014, Pickens seeks an amount “similar” to what he earned in the first quarter of 2014, approximately $3, 000. In sum, he seeks $12, 438 plus 6% interest to the present day.

         Additionally, Pickens seeks an award of attorney's fees in the amount of $380, 051 and an award of costs in the amount of $5, 912.81. Pl.'s Br. Attorney's Fees 9, ECF No. 76.


         Pickens claims that immediately following the filing of his EEOC complaint on January 31, 2013, SEPTA retaliated against him by denying him the ability to earn overtime for the rest of the year. Furthermore, he argues that he faced retaliation via denied overtime in the second quarter of 2014, prior to leaving work for shoulder surgery in June 2014. SEPTA responds that Pickens is not entitled to back pay for lost overtime because he did not present the issue to the jury as a form of retaliation, and therefore SEPTA was not on notice of this element of damages. Def.'s Supp. Resp. Damages and Attorney's Fees 1, ECF No. 78. SEPTA further argues that even if Pickens is eligible for back pay, his lost overtime is too speculative and difficult to quantify, and therefore his claim should be denied.

         With respect to attorney's fees, Pickens claims he is the prevailing party and therefore eligible for an award of a reasonable fee. SEPTA argues that in nominal damages cases, attorney fee awards are disfavored, and Pickens' case does not ...

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