In this appeal, defendants challenge the district court’s March 19, 1991 order dismissing in part their motions for judgment notwithstanding the verdict and/or remitti-tur and/or new trial and challenge the amount of attorneys’ fees and costs. The plaintiffs in this case alleged that their equal protection and free speech and association rights had been infringed upon and that they were unlawfully transferred from their posts in the Homicide Unit of the Philadelphia Police Department in violation of 42 U.S.C. § 1983. A jury awarded the plaintiffs $640,000 in compensatory damages and $1,800,000 in punitive damages. The plaintiffs accepted the district court’s remittitur of the punitive damages award to $1,200,000. The district court entered a judgment against the defendants and awarded attorneys’ fees and costs of $1,127,657.90.
We will affirm the compensatory damages award assessed against the individual defendants and the City of Philadelphia. We will affirm in part and reverse in part the punitive damages award. Finally, we will vacate the award of attorneys’ fees and costs and remand the case to the district court for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL BACKGROUND
Our nation has committed itself, through its Constitution and through substantial civil rights legislation, to prohibit unlawful gender discrimination. Nonetheless, the facts of this case demonstrate that even within a city police department, this prohibition has been disregarded.
All five plaintiffs in this case worked in the Homicide Unit of the Philadelphia Police Department. Detective Carol Keenan (Keenan) began working in the Homicide Unit in June 1985. She became the regular partner of Detective Lawrence Gerrard (Gerrard) and also worked with another detective, Ernest Gilbert (Gilbert). All three worked under the supervision of Sergeant Daniel Rosenstein (Rosenstein). Detective Walter Smith (Smith) was a representative of the Fraternal Order of Police (FOP), the police union.
All four individual defendants held various positions in the command structure of
Friction developed between Captain Grasso and Detective Keenan as Grasso closely monitored Keenan’s activities. One of Keenan’s colleagues, Rosenstein, testified that Grasso was like “a heat-seeking missile: He just seemed to be homed right at Carol [Keenan] and wouldn’t get off unless he could find the heat.”
As we detail more fully infra, Grasso discriminated against Keenan in several specific instances: he prevented her from going on overnight trips, from taking a witness protection detail, and from going on a transportation detail. Gerrard, Gilbert, Rosenstein, and Smith supported Keenan in her complaints against this discrimination. Stoner, Gallagher, and, to a lesser extent, Tucker all had knowledge of the situation in the Homicide Unit.
On June 5, 1987, Keenan, Gerrard, Gilbert, and Smith were transferred from the Homicide Unit to detective units around Philadelphia. Rosenstein, who was on special assignment away from the Homicide Unit from June 1987 to March 1988, was transferred out of the Homicide Unit to uniformed patrol upon his return on April 1,1988. The transfers of Keenan, Gerrard, Gilbert, and Smith were initiated by Captain Grasso and signed and approved by Grasso, Inspector Stoner, Chief Inspector Gallagher, and Police Commissioner Tucker. Grasso initially recommended the transfer of Smith in November 1986 and of Gilbert and Gerrard in December 1986. He initially recommended the transfers for Keenan and Rosenstein on May 12, 1987. Grasso sent Police Commissioner Tucker memoranda with the transfer requests for Rosenstein, Keenan, Gerrard, Gilbert and Smith on May 15, 1987. The transfers were approved by Inspector Stoner on May 15, 1987 and by Chief Inspector Gallagher on May 18, 1987. Police Commissioner Tucker approved the transfers at some later point.
After the transfers, in March 1988, the Internal Affairs Division (IAD) of the Philadelphia Police Department conducted investigations of Keenan, Gerrard, Gilbert, and Smith on the basis of anonymous letters. We note for the record that evidence was presented that these investigations were selective and in retaliation for plaintiffs’ formal complaints challenging their transfers.1
On September 15, 1988, Keenan, Ger-rard, Gilbert, Smith, and Rosenstein filed a complaint in district court naming as defendants the City of Philadelphia, Tucker, Gallagher, Stoner, Grasso, Lieutenant Victor Marcone (Marcone), and Deputy City Solicitor Ralph Teti (Teti). Plaintiffs alleged in their complaint that defendants had acted to discriminate and retaliate against them. On March 3, 1989, the district court dismissed the complaint as to defendants Marcone and Teti.
The matter went to trial on November 22, 1989. On January 16, 1990, the jury returned a verdict in favor of plaintiffs, assessing $2.44 million in damages: $640,-000 in compensatory damages and $1,800,-000 in punitive damages.2 All defendants were liable for the compensatory damages and all but the City of Philadelphia were
II. LIABILITY
Defendants present several issues on appeal. While we have considered them all,5 we will address in this section whether the evidence was sufficient to support the equal protection and First Amendment claims, whether municipal liability was proper, and whether prejudicial error was committed by the trial judge in his comments on the witnesses and the evidence. We affirm the district court on these issues.
A. Sufficiency of Evidence 6
The standard of review of a denial of a motion for judgment n.o.v. on a sufficiency of evidence argument is limited. “ ‘Because a jury determined the issue, our scope of review is limited to examining
1. Equal Protection
As we have recently stated:
To bring a successful claim under 42 U.S.C. § 1983 for a denial of equal protection, plaintiffs must prove the existence of purposeful discrimination. They must demonstrate that they “receiv[ed] different treatment from that received by other individuals similarly situated.” Specifically to prove sexual discrimination, a plaintiff must show that any disparate treatment was based upon her gender.
Andrews v. Philadelphia, 895 F.2d 1469, 1478 (3d Cir.1990) (citations omitted).
There is easily sufficient evidence in the record for a reasonable jury to have concluded that Captain Grasso treated Keenan differently from other individuals similarly situated and did so based upon her gender.7 As the following incidents amply demonstrate, Grasso discriminated against Keenan in his running of the affairs of the Homicide Unit.
In August 1986, Rosenstein originally assigned Gerrard and Keenan to protect and debrief a female witness. The assignment entailed overnight protection in a hotel. Rosenstein made the assignment on the basis of Gerrard’s expertise in the field of the investigation and on the basis of Keenan’s skill in interviewing and the rapport she had previously developed with the witness to be protected and debriefed. However, Grasso refused to allow Keenan to go on this overnight witness protection detail because “she’s got a child at home.” Keenan had no child, although an eighteen-year-old foreign exchange student and Keenan’s adult cousin were living with Keenan at the time. Grasso replaced Keenan with a male detective, Frank O’Brien, who had three minor children at home. The other male detective on the assignment, Gerrard, had four minor children at home.
In November 1986, Grasso refused to allow Keenan and Gerrard to go on a trip to Atlantic City to retrieve a murder weapon and talk to a witness who had been identified as possessing important knowledge in an on-going investigation. Grasso instead ordered that Keenan and Gerrard telephone the witness in Atlantic City and request that she come to Philadelphia on a bus and bring the murder weapon with her. Rosenstein asked Grasso to rethink the order, but Grasso stood by his order.
On December 5, 1986, Grasso gave Ro-senstein permission to bring in “a couple of detectives” on a Saturday to question an informant who had information that could potentially resolve several unsolved murder cases. Rosenstein arranged that Gilbert and Keenan would come in to conduct the interview. Grasso came into the office that day. When Grasso saw that Keenan was there, he called Rosenstein into his office and asked “[Wjhat’s she doing here?” When Rosenstein explained, Grasso responded that he had meant that only Ro-senstein and one detective should have been assisting with the informant. Later, Grasso told Rosensteip “send her home” or “send Keenan home.” Grasso did not suggest that Gilbert be sent home.
In March 1987, Keenan, Gilbert, and Ger-rard were served with court notices, requesting their presence at trial the next day. Grasso brought Rosenstein and Lieutenant Gibbons, another of Keenan’s superiors, into his office. When Rosenstein and Lieutenant Gibbons came out, they handed
In a final incident, Grasso’s action and language further demonstrated that he treated Keenan differently on account of her gender.8 On May 12, 1987, Grasso prohibited Keenan from transporting a male cooperating prisoner from a prison to the District Attorney’s office in Philadelphia for the purpose of interviewing and debriefing the prisoner. Rosenstein wanted to assign Keenan and Gerrard to the task, because both were familiar with the cooperating prisoner, were trusted by the prisoner, were familiar with the case, and were capable interviewers. After Rosen-stein had explained this to Grasso, Grasso had no problem with Gerrard but did not want Keenan to participate. When Rosen-stein asked: “Why not Keenan?,” Grasso stated: “Well, this is no job for a woman.” Grasso stated that he wanted two men to perform the detail. • When Gerrard spoke with Grasso by phone, asking: “Captain, are you saying she can’t go because she is a girl?,” Grasso responded that he would rather have a male detective. Rosenstein found a man to go on the detail with Ger-rard.
These incidents provide sufficient evidence in the record for a jury to have found purposeful discrimination by Grasso against Keenan based upon her gender.
2. Free Speech and Association
To succeed on a § 1983 claim on the basis of free speech or association, plaintiffs must show that the protected activity engaged in was a substantial or motivating factor in the decision to take adverse action against them. Laskaris v. Thornburgh, 733 F.2d 260, 264 (3d Cir.1984). Plaintiffs must “produce evidence sufficient to show that the defendants know [of their protected activity].” Laskaris, 733 F.2d at 265. For supervisors, liability can be established in two ways: (1) “through allegations of personal direction or of actual knowledge and acquiescence,” or (2) through proof of direct discrimination by the supervisor. Andrews v. Philadelphia, 895 F.2d 1469, 1478 (3d Cir.1990) (quoting and citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)).
There is sufficient evidence in the record for a reasonable jury to have concluded that the plaintiffs’ engagement in protected activity was a substantial or motivating factor in the decision by the defendants to take adverse action against them. Evidence was presented that, by associating with and speaking out on behalf of Keenan, plaintiffs Gerrard, Gilbert, Rosen-stein, and Smith each engaged in protected activity. Keenan herself also exercised her free speech and association rights.
Evidence was also presented that each of the defendants took actions that adversely impacted on the plaintiffs. Inspector Stoner approved each transfer request made and forwarded by Captain Grasso without asking for reasons. Chief Inspector Gallagher and Police Commissioner Tucker also approved the plaintiffs’ transfers without asking why the transfers were necessary.
The remaining question is that of knowledge on the part of the defendants. Considering the first three individual defendants, we believe there was sufficient evidence for a jury to find, with reasonable inferences, that Grasso, Stoner, and Galla
The events occurring from March 1987 to June 1987 demonstrate this knowledge. On March 25, 1987, after the incident involving Grasso’s delayed approval of the court notice requesting her to appear in court, Keenan met with Grasso’s superior, Inspector Stoner. Keenan explained to him some of the incidents that had occurred to that point. Keenan informed Stoner that she believed, after working with Grasso for nine months, that Grasso hated her. When Stoner asked why, Keenan said that she did not know. Keenan did not want Stoner to take any action but was apprising him of the situation so that if Grasso did anything, Stoner would be in a position to make an informed decision. She informed Stoner that Rosenstein, Gerrard, and Gilbert would support her as witnesses.
After Grasso prohibited Keenan from participating in the transportation of the male cooperating prisoner on May 12, 1987, Keenan met with Stoner again on May 13, 1987. As we set forth more fully infra, Keenan again gave Stoner the details of Grasso’s treatment of her but was told in response that her complaint could not be classified as one of sex discrimination. On the same day as the meeting between Keenan and Inspector Stoner, Stoner met with his superior, Chief Inspector Gallagher. Stoner advised Gallagher about the problem involving Keenan.
After Keenan had met with Stoner on May 13, 1987, Keenan spoke with Smith, the representative of the FOP, the police union. Smith explained to Keenan “what [her] rights were, as far as filing a grievance and as far as sexual discrimination and what can be done about this, what the FOP can do.... ” Smith allowed Keenan to make her own decision about filing a grievance, but he advised her to seek the advice of FOP counsel and to speak to Ken Rocks (Rocks), FOP vice president and legislative representative. During this conversation, Keenan and Smith were in Smith’s office in the Homicide Unit, an office about five to ten feet away from Grasso’s office which is set off from the rest of the area by a small plywood partition with a door. Grasso, sitting in his office, appeared to be intent on overhearing the conversation between Keenan and Smith.
Moreover, we believe there was sufficient evidence presented for a jury to find, with reasonable inferences, that Tucker knew of the actions of his subordinates. Two pieces of evidence support Tucker’s knowledge.
First, FOP President Robert Hurst (Hurst) testified that on May 19, 1987 he discussed “the Carol Keenan case” with Police Commissioner Tucker. Hurst had met with Keenan after her second meeting with Stoner on May 14, 1987. Keenan told Hurst of several of the incidents involving Grasso and asked Hurst to intercede on her behalf with Tucker. Hurst agreed. At Hurst’s request, Keenan prepared a handwritten memo putting her complaints in writing. Keenan delivered this memorandum to Hurst on May 18, 1987. At this point, Hurst suggested to Keenan that he meet with Chief Inspector Gallagher, rather than Commissioner Tucker, and Keenan agreed. At a regularly scheduled meeting with Tucker on May 19, 1987, Hurst nonetheless discussed “the Carol Keenan case” with Tucker. Hurst did not bring the complaint formally and did not reduce it to writing. Hurst did tell Tucker that he was going to discuss it further with Chief Inspector Gallagher after the meeting, to which Tucker responded “Good, you do that.”9
This case is not one where the transmission of knowledge regarding each of the individual plaintiffs’ particular activities through the police department’s chain of command has been precisely set forth. Nonetheless, the above evidence demonstrates that each defendant did learn specifically of “the Carol Keenan case,” the situation that involved Detective Keenan and Captain Grasso. It is reasonable to infer that knowledge of the activities of her co-workers, the male plaintiffs, was also passed along. With reasonable inferences drawn in favor of the plaintiffs, the evidence is sufficient to establish that the plaintiffs were impermissibly disciplined by defendants Grasso, Stoner, Gallagher, and Tucker for conduct that constituted protected activity.
B. Municipal Liability
Read as a whole and with reasonable inferences in favor of the plaintiffs, there was also sufficient evidence for a reasonable jury to have found the City of Philadelphia liable for the constitutional violations committed by Grasso, Stoner, Gallagher, "and Tucker.
To hold a municipality liable under § 1983, the Supreme Court has made clear that plaintiffs may not depend on the theory of respondeat superior but rather need to prove that the municipality supported the violation of the rights complained of. Monell v. Dept. of Social Services, 436 U.S. 658, 695, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). The Court stated:
[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
Id. 436 U.S. at 695-97, 98 S.Ct. at 2037-38. The Supreme Court has also noted that “municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Pembaur v. Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986); see also Bartholomew v. Fischl, 782 F.2d 1148, 1154 (3d Cir.1986) (“a ‘single instance’ of misconduct by a policymaking city official could provide the basis for an inference that an official policy existed”).
In this case, the district court correctly determined that Police Commissioner Tucker was an official policymaker. In a previous case involving different facts, we also found that this same Philadelphia Police Commissioner was an official policymaker. See Andrews, 895 F.2d at 1481. As in Andrews, Tucker here “retained the authority to measure” the conduct and decisions of his subordinates, Grasso, Stoner, and Gallagher.
C. The District Court’s Comments at Trial
The City complains that substantial prejudicial error was committed in the trial through the court’s comments on the evidence and witnesses. At times, the trial judge may have made comments which would have been far better left unsaid.10 In this case, we cannot conclude that the comments made rise to the level of reversible error. See In re Yagman, 796 F.2d 1165, 1178-80 (9th Cir.1986), cert. denied, 484 U.S. 963, 108 S.Ct. 450, 98 L.Ed.2d 390 (1987). “[A] certain amount of tension ... is not uncommon in emotional and hard-fought cases.” Id. at 1178.
III. COMPENSATORY DAMAGES
Our review over the scope of damages is a narrow one. We may grant a new trial or remittitur only if the verdict awarded by the district court is so grossly excessive as to shock the judicial conscience. Gumbs v. Pueblo Int’l Inc., 823 F.2d 768, 771 (3d Cir.1987).
The jury returned a verdict granting $640,000 in compensatory damages, finding against all five defendants. The jury awarded Keenan, $220,000; Smith, $175,000; Gilbert, $175,000; Rosenstein, $40,000; and Gerrard, $30,000.
Testimony regarding the compensable harm suffered by the plaintiffs was given by plaintiffs themselves, family members, friends, and neighbors, as well as two expert witnesses. Evidence showed “daily” harassment of Keenan. Beyond the lay testimony, Dr. Robert Sadoff, an expert witness, stated that each plaintiff suffered emotional stress related to the transfer out of the Homicide Unit. Keenan required continuing therapy. An actuary-economist, David Bunin, calculated plaintiffs’ economic losses which alone exceeded the jury’s compensatory awards for each plaintiff. Finally, the jury was presented with some evidence that detectives in the Homicide Unit routinely doubled their salaries through overtime. Cf. Perez v. Cucci, 725 F.Supp. 209, 256 (D.N.J.1989), aff'd 898 F.2d 142 (3d Cir.1990). Given our standard of review and the evidence produced at trial, we cannot conclude that the compensatory damages were so grossly excessive as to shock our judicial conscience.
IV. PUNITIVE DAMAGES
We next consider the question of punitive damages.11 We first determine that the conduct of three of the four defendants (Grasso, Stoner, and Gallagher) met the standards for the imposition of punitive damages, but that Tucker’s conduct did not. Second, we decide that the punitive damages awards against Grasso, Stoner, and Gallagher, as remitted, were not excessive.
A. Did the Defendants’ Conduct Rise to the Level Required for Imposition of Punitive Damages?
Punitive damages in § 1983 cases are available where the defendants
We are fully satisfied that the standard of conduct necessary to impose punitive damages was met with respect to three of the defendants. As we have set out supra, the overwhelming evidence presented concerning Grasso’s conduct demonstrated that his is clearly a case where the imposition of punitive damages is warranted.
While the question is closer, we also believe the evidence also supports the imposition of punitive damages at the next two levels of the command structure. In this case, the conduct of Stoner and Gallagher exhibited a reckless or callous disregard of or indifference to the rights of Keenan and the other plaintiffs.
With respect to Stoner, evidence was presented at trial that he approved each transfer request made by Grasso without asking for reasons even though he knew of Keenan’s allegations concerning Grasso and of the male plaintiffs’ support for Keenan’s claims. Stoner gave his approval to the transfer requests despite his explicit assurance to Keenan, made when she came to see him on March 25, 1987, that “there is nothing that man [Grasso] can come in and say to me [Stoner] that I wouldn’t realize that something was wrong and I would ask you before I made any decision on any action he requested.”
Moreover, even after two meetings with Keenan, Stoner refused to address the problem he acknowledged in any way whatsoever. At her first meeting with Stoner, Keenan had not asked Stoner to take any action. Rather, she met with him to let him “know what is going on and [to hear] both sides of the stor[y].” When Keenan had her second meeting with Stoner on May 13, 1987, she told Stoner about her feeling of “having no job left” because of the limits placed on her assignments and about Grasso’s refusal to allow her to transport a male prisoner. At this meeting, Keenan requested then asked that Stoner talk to Grasso and tell him that he [Grasso] was not permitted to limit her assignments on account of her sex. Stoner told Keenan that Stoner felt that Grasso’s action with respect to the transportation detail was proper and that because of this he could not talk to Grasso. Stoner asked whether Keenan’s complaint was under the heading of sex discrimination. Keenan replied yes. Stoner then asked “Well, did he grab you, did he touch your body in any way?” Keenan said “No.” Stoner continued: “Did he ever ask you to sleep with him?” Keenan again said “No.” Stoner then said, “That’s what sex discrimination means. Sex discrimination doesn’t mean anything else but that.” When Keenan persisted with her complaint that she was facing sex discrimination and raised a hypothetical example about Black detectives being forbidden to transport white prisoners, Stoner said that the situations were not the same. Stoner repeated that he could not intercede because he [Stoner] did not feel that Grasso’s actions amounted to sex discrimination. When Stoner met Gallagher later the day of the second meeting, he told Gallagher that “Carol Keenan had a problem, I took care of it.”
Needless to say, the law prohibiting sex discrimination does indeed mean more than the proposition that Grasso was not free to “grab” Keenan or “touch [her] in any way.” But as importantly for the imposition of punitive damages in this case, we note that Stoner refused to intercede in any way with Grasso even after having been alerted to this situation by Keenan nearly two months before. Faced with what he
The situation is much the same with defendant Gallagher. Knowing the specifics of the Keenan problem, Gallagher also approved Grasso’s requests to transfer the plaintiffs without making any inquiries or asking why the transfers were necessary. Moreover, we also note that Detective Checchia, a member of the Homicide Unit, testified that in July of 1987, Gallagher said that Keenan had become a prima don-na and that “she wanted to do things that men should be doing, transporting male prisoners, going on overnight trips.”
The evidence with respect to the character of Police Commissioner Tucker’s action is, however, significantly weaker. See discussion supra. As related by a lawyer in the firm representing the police union, the police commissioner stated that at the time he had approved the transfers, “he had been fully aware of the actions of his subordinate command personnel in this particular case, and that he had agreed with the actions taken by his commanders.” Further, evidence was presented that Tucker stated that he had difficulty with a female detective being assigned to transport a male prisoner.
Even taken at face value as related by the police union’s lawyer, we think these statements amount to little more than a general acknowledgement that a problem occurred on the police commissioner’s watch. While we have determined that there is sufficient evidence to support a finding of municipal and individual liability, these statements cannot justify the imposition of punitive damages. First, Tucker merely acknowledged his position of responsibility. While Stoner and Gallagher’s actions flew directly in the face of Keenan’s first or second-hand protestations, Tucker was at the apex of the chain of command. The command staff of this police department numbered close to two hundred officers. And while the second statement attributed to Tucker does show his general knowledge of the situation in Homicide Divison, we are not prepared to equate Tucker’s statement of difficulty with the assignment of a female detective to transport a male prisoner with a showing sufficient to find that Tucker’s conduct rose to the level of punitive damages. To allow the imposition of punitive damages for the mere expression of doubt or difficulty about an abstract or hypothetical situation, even where that hypothetical is ultimately derived from the facts of an actual situation, would simply cast the net too wide. Due to their lack of specificity, Tucker’s comments do not exhibit a reckless or callous disregard of or indifference to the rights of the plaintiffs.
Based on the foregoing, we will affirm the district court on the liability for punitive damages awards of defendants Grasso, Stoner and Gallagher but will reverse the district court on the question of Tucker’s liability for punitive damages.
B. Were the Punitive Damages Awarded Excessive?
The majority of the panel believes that defendants waived any argument that evidence of their financial status is a prerequisite to punitive damages. Defendants challenged the excessiveness of the punitive damages award by arguing that it was disproportionate to other awards in similar cases. Nowhere in their submissions to the district court (or to this court before oral argument) did they argue that evidence of their financial condition is a prerequisite to a punitive damages award. In the majority’s view, the crucial question regarding waiver is whether defendants presented the argument with sufficient specificity to alert the district court. The majority thinks they failed to do. Nor would they rely upon our discretionary power to consider an issue not raised. While the majority agrees with the comments of the dissenting colleague regarding the importance of the issue, they think
We next must determine whether these punitive damages can stand under our standard of review for excessiveness. The Third Circuit standard of review here has been recently stated: “[0]ur review of this question is severely limited: we may ... reverse and grant a new trial ‘only if the verdict is so grossly excessive as to shock the judicial conscience.’ ” Gumbs v. Pueblo Int’l Inc., 823 F.2d 768, 771 (3d Cir.1987) (citations omitted). Where the district judge has granted a remittitur, deference to the trial court is heightened. “[0]«r review requires additional deference to the district court since it already granted a remittitur.” Gumbs, 823 F.2d at 771; Spence v. Board of Education, 806 F.2d 1198, 1201 (3d Cir.1986).
After the jury’s verdict, the total punitive damages award was $1,800,000 spread over four individuals. After the trial court’s remittitur, the award was reduced to $1,200,000 spread over four individuals: Grasso was assessed $266,666.65, Gallagher was assessed $266,666.65, Stoner was assessed $133,333.35, and Tucker was assessed $533,333.35. Since we have concluded that no punitive damages should have been imposed in Tucker’s case, we consider only the awards of Grasso, Stoner, and Gallagher.
We do not find that these awards, as remitted and spread over four individuals, so grossly excessive as to shock our judicial conscience. We will uphold the punitive damages awards against Grasso, Stoner, and Gallagher.
V. ATTORNEYS’ FEES
Review of the reasonableness of an award of attorney’s fees is under an abuse of discretion standard. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990). Whether the district court applied the proper standards or procedures is a question of law subject to plenary review. Id. The district court’s factual findings are reviewed under a clearly erroneous standard. Id. at 1182-83.
A. The Lodestar’s Number of Hours
1. Specificity of the Hours Claimed
Any hours to be used in calculating attorneys’ fees must be detailed with sufficient specificity. The standards of specificity were met by the bulk of the plaintiffs’ submissions, although not by the submissions of Mr. Richard Sprague.
While the Supreme Court has not described the standards for specificity in detail, the Court has stated “[cjontemporane-ously recorded time sheets are the preferred practice.” Webb v. County Board of Education, 471 U.S. 234, 238 n. 6, 105 S.Ct. 1923, 1926 n. 6, 85 L.Ed.2d 233 (1985). At least one circuit strictly requires contemporaneous records.13 According to the Court of Appeals for the D.C. Circuit:
Casual after-the-fact estimates of time expended on a case are insufficient toPage 473support an award of attorneys’ fees. Attorneys who anticipate making a fee application must maintain contemporaneous, complete and standardized time records which accurately reflect the work done by each attorney.
National Ass’n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C.Cir.1982).
A panel of this court has articulated the standard used in this circuit in the course of overturning a district court’s conclusion that an attorneys’ submissions lacked the requisite specificity. Rode, 892 F.2d at 1190-91. In Rode, the Third Circuit stated that “[a] fee petition is required to be specific enough to allow the district court ‘to determine if the hours claimed are unreasonable for the work performed.’ ” (Rode, 892 F.2d at 1190 (quoting Pawlak v. Greenawalt, 713 F.2d 972, 978 (3d Cir.1983))). A fee petition should include “some fairly definite information as to the hours devoted to various general activities, e.g. pretrial discovery, settlement negotiations, and the hours spent by various classes of attorneys, e.g., senior partners, junior partners, associates.” However, “it is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney.” Rode, 892 F.2d at 1190 (quoting Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir.1973)). We found sufficient specificity where the computer-generated time sheet provided “the date the activity took place.” Id. at 1191.
Some of the assertions made by plaintiffs’ counsel clearly misread the process of documenting a fee petition. The burden is on the party filing a fee petition to establish that the rate claimed is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Suggestions that defense counsel “need only consult their own files” to ascertain the nature of the work being performed at any point in time and that the individual time records were available to the Court for in camera review “immediately upon request” are misleading in view of the burden placed on the plaintiff.
In this case, the trial court found the two computer-generated summaries of time spent by each attorney and paralegal that were provided met the standards of Rode. With one exception (the monthly summaries for twenty-five months of Richard Sprague’s (Sprague) activities), these summaries showed the daily activities of each attorney and paralegal. One summary gave in chronological order the date, the time consumed, and a general description of the activities provided by each lawyer. The other summarized the counsels’ time spent in various general activities such as arbitration, pretrial preparation, and trial. We agree with the district court’s conclusion that the bulk of the plaintiffs’ submissions met the standards of specificity.
However, a major portion of the plaintiffs’ fee petition is not sufficiently specific. This is the portion relating to Sprague’s hours from September 1987 to October 1989. For these months, the plaintiffs submitted only monthly cumulative totals of Sprague’s hours,14 claiming a total of 631.5 hours.15 Faced with these monthly summaries, the trial court could only have speculated as to whether the hours claimed were reasonable for the work performed. Although the submissions relating to Sprague’s hours do not presently meet our standards for specificity, the dis
2. The Subject Matter of the Hours Claimed
In determining the number of hours to be used in calculating the attorneys’ fees, the district court deducted from the petition the hours plaintiffs’ attorneys spent on their unsuccessful attempt to intervene in United States v. Philadelphia, 499 F.Supp. 1196 (E.D.Pa.1980) (the Brace Case). However, the district court did not deduct the hours spent on preparation, litigation, and appeal of a labor arbitration hearing concerning plaintiffs Keenan, Geiv rard and Gilbert that preceded this case.
The City argues that to grant any attorneys’ fees in respect of the time spent on the labor arbitration proceeding is an abuse of discretion. Their theory is that the arbitration hearing was an optional internal administrative proceeding and that to compensate plaintiffs’ counsel for time spent on that hearing falls short of the standard enunciated by the Supreme Court in Webb v. County Board of Educ., 471 U.S. 234, 243, 105 S.Ct. 1923, 1928, 85 L.Ed.2d 233 (1985). We do not agree.
As interpreted in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 561, 106 S.Ct. 3088, 3096, 92 L.Ed.2d 439 (1986) (Delaware I), Webb means that “for the time spent pursuing optional administrative proceedings properly to be included in the calculation of a reasonable attorney’s fee, the work must be ‘useful and of a type ordinarily necessary’ to secure the final result obtained form the litigation.” Significantly, Delaware I also noted that “[application of this standard is left to the discretion of the trial court.” Id.
In this case, the district judge specifically found that “[t]ranscripts of arbitration testimony were used at trial and served the purpose of discovery in this case. Further, the arbitrator’s decision ... was read to the jury and constituted favorable evidence for the plaintiffs at trial.” The judge found that the time spent on the arbitration matter was “inextricably linked to the issues before [the district court].” We find no abuse of discretion in the district court’s inclusion of time spent in relation to the labor arbitration.16
B. The Lodestar’s Hourly Rate
1. Fee Structure
Plaintiffs’ counsel, the law firm of Sprague, Higgins, Creamer & Sprague, is a for-profit law firm. It does not set its fees “artificially low to serve the public interest.” Student Public Interest Research Group v. A.T. & T. Bell Laboratories, 842 F.2d 1436, 1443 (3d Cir.1988). As part of its normal billing practices, it allows its clients to choose between two different billing methods. In one method, the uniform hourly rate, a client chooses to pay a single across-the-board hourly rate for every attorney in the firm who works on the client’s case. In the other method, individualized hourly rates, a client chooses to pay separate rates for each attorney who works on the client’s case. The law firm’s clients most often choose the uniform billing method. According to plaintiffs’ counsel, its “usual hourly rate” is’ the “fixed
In its discussion of the reasonable hourly rate to use in calculating the “lodestar,” the district court had to decide whether to adopt the individualized billing method or the uniform billing method. Under the individualized rates, the award for counsel fees and the fee petition was $1,104,157.50. Under the uniform billing rate (at plaintiffs’ proposed figure of $200/hour), the award for counsel fees and the fee petition would have been $978,985.00, a difference of $125,172.50.
The district court decided to use individualized rates and stated:
The law governing attorney fee compensation under 42 U.S.C. § 1988 does not permit me to determine an attorney’s hourly rate by selecting between a firm’s various billing methods, but rather, I must go by the prevailing market rate of compensation for each attorney. An attorney's rate should reflect an individual’s experience and responsibility, as well as the economic reality that various activities have different rates of reasonable compensation. Thus, I shall not use plaintiffs’ uniform hourly rates, rather, I shall award their individual hourly rates.
The district court was, of course, correct to state that the market rate of compensation must determine the appropriate hourly rate for computing the lodestar. However, we conclude that § 1988 does not preclude use of a uniform billing method where such a billing method produces market rates of compensation. First, our prior caselaw has recognized that billing rates are usually reflective of market rates. “The value of an attorney’s time generally is reflected in his normal billing rate.” Lindy Bros. Builders, Inc. v. American Radiator and Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir.1973). Second, we recognize that it is important not to tie the hands of the district court and is likewise important to opt, consistent with § 1988’s purposes, for simple, easily-administrable schemes. Thus, where a district court is faced with a choice between two market rates of compensation based upon two normally used billing methods, one using uniform hourly rates and one using individualized hourly rates, we interpret § 1988 to place that choice initially within the lower court’s discretion.
In this case, both of the firm’s billing methods produced rates of compensation which were themselves market rates, at least on the plaintiffs’ version of the facts regarding prevailing market rates. Both the uniform and the individualized were evidently accepted by the firm’s clients in the market for legal services. The district court therefore erred in interpreting § 1988 to assume, as a matter of law, that a rate of compensation based upon a uniform hourly rate could not be reflective of market rates. We emphasize that this case does not involve a not-for profit law firm seeking market rates for its services.
Having decided that the law prevented use of one billing method, the district court did not choose between the two market rates of compensation. Since we disagree with the district court’s conclusion that the law prevented the use of the uniform hourly rate, we must remand for the trial judge to make a choice between the uniform and the individualized hourly rates, but we do not suggest that it would be an abuse of discretion if the court used as its standard the uniform hourly rate.
2. The Appropriate Hourly Rate
Whether the district court chooses the uniform hourly rate or the individualized hourly rates on remand, there will be an existing dispute to resolve as to what the exact rate(s) should be.
With respect to the uniform hourly rate, while plaintiffs’ counsel offered an affidavit stating that his firm’s usual hourly rate was $200/hour, defendants offered counter evidence of the across-the-board rate at which the Sprague firm charged its clients. This evidence consisted of a Feb. 15, 1987 bill for professional services rendered by the Sprague firm. According to this evidence, the across-the-board hourly rate charged by the Sprague firm is $150/hour. While this billing was several months before the July 8, 1987 retaining of plaintiffs’ counsel, there nonetheless would appear to be a disputed question as to the hourly rate
With respect to the individualized hourly rates, the plaintiffs conducted a telephone survey of eleven attorneys in the local area which supported their petition and, in a supplemental petition, submitted an affidavit which provided some guidance to the district court. The City offered counter evidence of lower hourly rates which it claimed were the true market rates and argues that the plaintiffs failed to substantiate their individualized hourly rates. The district court evaluated the defendants’ counter-evidence on market rate's but rejected it. In part, the counter-evidence was rejected because it did not consider each individual attorney’s experience. In part, the district court rejected the counter-evidence because it addressed the market rate of 1989 not of 1990. The district court apparently reasoned, in part, that since it had chosen to award current hourly rates as an adjustment for delay, the counter-evidence providing information regarding 1989 hourly rates, not 1990 hourly rates, was irrelevant because only the 1990 hourly rates were current. However, as we explain in more detail in the next section, adjusting the lodestar to account for any delay in payment is a separate exercise from the initial calculation of the lodestar. If it should choose the route of individualized hourly rates, the district court will thus need to reconsider its evaluation of the City’s counter-evidence upon remand.
C The Adjustment for Delay in Payment and the Choice of Historical or Current Rates
Upon remand, the district court will need to decide again whether or not to grant an adjustment to the lodestar for delay. To emphasize that the district court should approach this question as a separate inquiry from the lodestar calculation, we address the issue here.
In appropriate cases, the lodestar ought to be adjusted to account for the incurred costs of the delay plaintiffs’ counsel has undergone in receiving payment. The Supreme Court in Missouri v. Jenkins, 491 U.S. 274, 284, 109 S.Ct. 2463, 2469, 105 L.Ed.2d 229 (1989), stated that “an appropriate adjustment for delay in payment— whether by the application of current rather than historic hourly rates or otherwise— is within the contemplation of [§ 1988].” This Circuit has noted that in granting plaintiffs compensation for delay, two methods may be used: basing the fee award on current rates or adjusting the fee based on historical rates to reflect its present value. Blum v. Witco Chemical Corp., 888 F.2d 975, 984 (3d Cir.1989) (Blum II). Blum II noted that while the Third Circuit opinions have followed the latter approach,17 the former is not ruled out in appropriate cases.18 Blum II, 888 F.2d at 984.
Significantly, the cases in this circuit have placed “the burden on plaintiffs to document the need for a [delay] multiplier.” Student Public Interest Research Group v. A. T. & T. Bell Laboratories, 842 F.2d 1436, 1453 (3d Cir.1988) (SPIRG) (quoting Institutionalized Juveniles, 758 F.2d at 923-24). This evidence should document the costs of receiving delayed payment of fees. We have previously relied on this analysis to uphold a district court’s
Upon remand, plaintiffs’ counsel will need to meet this burden.
We thus reverse the district court’s order denying the defendants’ motion for judgment n.o.v. insofar as it relates to the punitive damages award against Kevin Tucker, vacate the order insofar as it awards plaintiffs’ counsel attorneys’ fees and costs, affirm the district court’s order in all other respects, and remand this case to the district court for proceedings consistent with this opinion.
1.
The investigations commenced after Chief Inspector Gallagher had assumed command of IAD and the selection of the investigator was done in a departure from the normal selection process, the rotating wheel process. The anonymous letters against Keenan, Gerrard, and Gilbert that initiated the investigations were received on the same day. Evidence was presented that the letter against Keenan and Gerrard and the letter against Gilbert had been typed on the same typewriter. Although names of the suspected authors were provided to IAD and the routine practice is to investigate authorship in such cases, no investigation of the source of anonymous complaints was conducted.
2.
The jury apportioned the damages as follows:
Compensatory Punitive
Carol Keenan $220,000.00 $600,000.00
Walter Smith $175,000.00 $300,000.00
Ernest Gilbert $175,000.00 $300,000.00
Page 464Compensatory Punitive
Daniel Rosenstein $ 40,000.00 $300,000.00
Lawrence Gerrard $ 30,000.00 $300,000.00
The jury assessed punitive damages against each defendant as follows:
Grosso Tucker Stoner Gallagher
Keenan $320,000.00 $160,000.00 $40,000.00 $80,000.00
Smith $ 20,000.00 $160,000.00
Gilbert $ 20,000.00 $160,000.00 $40,000.00 $80,000.00
Rosenstein $ 20,000.00 $160,000.00 $40,000.00
Gerrard $ 20,000.00 $160,000.00
Total $400,000.00 $800,000.00 $200,000.00 $400,000.00
3.
As we discuss infra, juries cannot impose punitive damages against directly municipalities under 42 U.S.C. § 1983.
4.
After the district court granted the remittitur, the punitive damages awards were as follows:
Grosso Tucker Stoner Gallagher
Keenan $213,333.33 $106,666.67 $26,666.67
Smith $ 13,333.33 $106,666.67
Gilbert $ 13,333.33 $106,666.67
Rosenstein $ 13,333.33 $106,666.67 $26,666.67
Gerrard $ 13,333.33 $106,666.67
5.
We have considered but do not find it necessary to discuss the defendants' contentions that prejudicial error was committed by the district court in evidentiary rulings, that the district court erred by permitting a jury of ten to deliberate, and that the district court erred in charging the jury with respect to the defenses to the First Amendment and equal protection claims. We find no merit in these contentions.
6.
At trial, defendants had an opportunity to prove by a preponderance of the evidence that the decision to transfer the plaintiffs would have been the same in the absence of the protected conduct. See Laskaris v. Thornburgh, 733 F.2d 260, 264 (3d Cir.1984) (citing Mount Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977)), cert. denied, 469 U.S. 886, 105 S.Ct. 260, 83 L.Ed.2d 196. The defendants did present evidence that the transfer decisions would have occurred in any case. For instance, Grasso testified that the transfers were based upon his judgment of individuals’ work level and willingness to comply with management objectives.
Given our procedural posture, however, we need only to consider whether the plaintiffs presented evidence sufficient to support the verdict in their favor since the jury was free to disbelieve the defendants’ evidence on the legitimate reason defense on which defendants bore the burden of production and proof. Even so, the record provides evidence that contradicts the defendants’ claims of legitimate reasons.
7.
As we make clear in our discussion of the free speech and association claims, a reasonable jury could also have found that defendants Inspector Stoner, Chief Inspector Gallagher, and, to some extent, Police Commissioner Tucker each had knowledge of Grasso's practice of sexual discrimination.
8.
We believe this incident sheds light on the entire course of Grasso’s treatment of Keenan. We do not base liability on this incident alone and we express no view as to whether this incident, in and of itself, would be sufficient to uphold liability.
9.
Hurst and a vice-president of the FOP, Mike Lotts, then met with Chief Inspector Gallagher later that day. Hurst related the incidents and pressed Keenan’s concerns. A couple of days later, after checking with Keenan, Hurst then sent Gallagher a typed version of Keenan’s memorandum which included the names of Gerrard, Gilbert, and Rosenstein.
After receiving the typed memorandum, Chief Inspector Gallagher sent Inspector Stoner to speak with Keenan a third time on May 29, 1987. Since May 14, 1987, Stoner had been on the Affirmative Action Board of the Philadel
10.
The City alleges that the impact of the judge’s many sua sponte witticisms were cumulatively disparaging of the City. In one instance, the trial judge excused the jury saying that the defense was about to give him "the sermon of the day.” Indeed, a jury can easily assume that a comment, even given with levity, is indicative of the judge’s belief on the merits in the case. Even a later statement made in the instructions that the judge takes no position one way or the other may not be helpful enough to eradicate the impression which the jurors may have obtained over days of trial. Still, on a cold trial record, it is next to impossible to wisely discern whether a trial judge’s efforts to lighten up the tension of a trial result in mere harmless banter or in actual disparagement.
11.
In a separate partially dissenting opinion, Judge Higginbotham notes what he describes as the general logic (and illogic) of substantial punitive damages awards when municipalities are indemnifying the defendant and he considers the specific issue of the necessity of evidence of an individual defendant's economic net worth.
12.
Judge Becker concludes that the rule the partial dissent would adopt is at odds with circuit precedent. See Bennis v. Gable, 823 F.2d 723, 734 n. 14 (3d Cir.1987) (“We reject the defendants’ contention that evidence of their financial status was a prerequisite to the imposition of punitive damages."). Although Judge Becker acknowledges that at first blush Bennis may be read as inconsistent with our prior decision in Acosta v. Honda Motor Co., Ltd., 717 F.2d 828 (3d Cir.1983), that case construed Virgin Islands law on punitive damages. See id. at 830. However, in Bennis, this court was interpreting the federal common law governing punitive damages awards in section 1983 cases. Therefore, Judge Becker believes Bennis is on point and Acosta is inapposite. Judge Hutchinson does not reach that issue.
13.
Other circuits do not strictly require contemporaneous records. See, e.g., Jean v. Nelson, 863 F.2d 759, 772 (11th Cir.1988), aff’d on other grounds, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) ("contemporaneous time records are not indispensable where there is other reliable evidence to support a claim for attorneys’ fees”) (EAJA); MacDissi v. Valmont Industries Inc., 856 F.2d 1054, 1061 (8th Cir.1988) ("The question of whether reconstructed records accurately document the time attorneys have spent is best left to the discretion of the court most familiar with the litigation.").
14.
The first six monthly summaries for Richard A. Sprague were as follows:
Date Time Description
10/01/87 15.00 Conferences; Review. (Cumulative for Month.)
11/01/87 20.00 Conferences; Review; Research. (Cumulative for Month.)
12/01/87 20.00 Conferences; Review. (Cumulative for Month.)
01/01/88 30.00 Conferences; Review. (Cumulative for Month.)
02/01/88 50.00 Conferences; Review. (Cumulative for Month.)
03/01/88 45.00 Arbitration Hearings; Review. (Cumulative for Month.)
15.
At plaintiffs’ asserted rate of $200/hour, the total is $126,300, a significant portion of the overall award of counsel fees.
16.
We note in connection with the inclusion of the hours spent on the arbitration hearing that in reviewing the record a double reward question surfaced. Plaintiffs’ counsel admit that they were reimbursed by the Fraternal Order of Police in connection with the arbitration hearing. Plaintiffs' Answers to Defendants' Interrogatories Addressed to Plaintiffs’ Petition For Award of Attorneys' Fees and Costs at 21. The plaintiffs responded "Yes.” when the City requested: "State whether the Fraternal Order of Police, Lodge No. 5 or the Legal Services Trust Fund for the Fraternal Order of Police, Lodge No. 5 Legal Services Plan reimbursed the firm of Sprague, Higgins, Creamer, & Sprague for any fees or costs associated with the arbitration over the grievance of Keenan, Gerrard and Gilbert referred to in Paragraph 8 of the Fee Petition." Id.
On remand, the district court has the discretion to consider whether the double reward compensation is appropriate on the facts of this case. Should the district court determine that double counting has occurred, it may, in its discretion, uphold the fee award against the City, with directions to the plaintiffs to reimburse the FOP.
17.
All of the Third Circuit attorneys' fees cases granting compensation for delay have been decided on the basis of historical rates. See Blum II, 888 F.2d at 984, n. 4; Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 904 (3d Cir.1985); see also Cerva v. E.B.R. Enterprises Inc., 740 F.Supp. 1099, 1107 (E.D.Pa.1990); Vargas v. Calabrese, 750 F.Supp. 677, 685 (D.N.J.1990), aff'd in relevant part and remanded in part, 949 F.2d 665 (3d Cir.1991).
18.
The rationale for using current rates is that “[u]sing current market rates to calculate the lodestar figure may counterbalance the delay in payment as well as simplify the task of the district court.” Blum II, 888 F.2d at 984 n. 4 (quoting Murray v. Weinberger, 741 F.2d 1423, 1433 (D.C.Cir.1984) (quoted in Institutionalized Juveniles, 758 F.2d at 923 & n. 41 (3d Cir.1985))). There are, however, problems in using the current rates. The current rates may not track the time value of money as accurately as the market rate of interest would. Furthermore, the current rates for any individual attorney may reflect other factors than the passage of time, such as an increase in skill.