IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH J. TOMASSO : CIVIL ACTION

:

v. :

:

THE BOEING COMPANY : NO. 03-4220

MEMORANDUM OF DECISION

THOMAS J. RUETER September 21, 2007

United States Magistrate Judge

Presently before the court is plaintiff’s Motion to Mold Verdict (Doc. No. 81) (the

“Motion”). Defendant filed a Memorandum of Law in Opposition to the Motion (Doc. No. 97)

(“Def.’s Mem.”) and plaintiff filed a reply thereto (Doc. No. 98). For the reasons stated herein,

plaintiff’s Motion is granted in part and denied in part.

I. BACKGROUND

Plaintiff Joseph J. Tomasso (“plaintiff”), filed the instant action against his former

employer, defendant The Boeing Company (“defendant” or “Boeing”), alleging that defendant

terminated his employment in violation of the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 261, et seq. The case was tried before a jury for five days, from March

16, 2007 through March 22, 2007. 

 The jury returned a verdict in plaintiff’s favor on the age discrimination claim,

awarding back pay in the amount of $261,539 and front pay in the amount of $113,200. See Jury

Interrogatory Form (Doc. No. 77). The jury also found in favor of plaintiff on the question of

willful discrimination under the ADEA. Id. Accordingly, liquidated damages were awarded. Id.

The court therefore entered judgment in favor of plaintiff and against defendant in the total

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amount of $636,278 (Doc. No. 79). The court held a hearing on plaintiff’s Motion to Mold

Verdict on May 25, 2007.

II. DISCUSSION

A. Prejudgment Interest

Plaintiff contends that he is entitled to receive prejudgment interest in the amount

of $30,510 on the back pay portion of his jury award. (Motion at Exs. B and C.) Defendant

argues that an award of prejudgment interest would be inequitable because plaintiff received

unemployment compensation and pension benefits during the time period covered by the back

pay award. (Def.’s Mem. at 2-3.)

The decision whether to award prejudgment interest is within the sound discretion

of the trial court. Booker v. Taylor Milk Co., 64 F.3d 860, 868 (3d Cir. 1995). An award of

prejudgment interest is compensatory in nature and is intended to make victims of discrimination

whole. Id. “[I]t serves to compensate a plaintiff for the loss of the use of money that the plaintiff

otherwise would have earned had he not been unjustly discharged.” Id. The Third Circuit has

stated that prejudgment interest should be “given in response to considerations of fairness and

denied when its exaction would be inequitable.” Id. (quoting Green v. USX Corp., 843 F.2d

1511, 1531 n.16 (3d Cir. 1988)). The court further directed that there is “a strong presumption in

favor of awarding prejudgment interest, except where the award would result in unusual

equities.” Id. (citations omitted). In addition, an award of both liquidated damages and

prejudgment interest is permissible. Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1102-

03 (3d Cir. 1995).

To support his motion for prejudgment interest, plaintiff has submitted an

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affidavit from his expert, Andrew C. Verzilli, M.B.A. (Motion at Exs. B and C.) Mr. Verzilli

calculated the prejudgment interest rate using the method in O’Neill v. Sears, Roebuck, & Co.,

108 F. Supp. 2d 443 (E.D. Pa. 2000) (calculating prejudgment interest by utilizing the T-bill rate

available at the end of each year and compounding the interest yearly based on the amount of

earnings that the plaintiff would have collected in that year, plus all the preceding years) and

Jordan v. CCH, Inc., 230 F. Supp. 2d 603 (E.D. Pa. 2002) (vacated). While different methods for

calculating prejudgment interest have been applied in this circuit, defendant does not contest the

method used by plaintiff’s expert. Rather, defendant argues that no award should be granted

because doing so would be inequitable. (Def.’s Mem. at 2-3.) 

This court is not persuaded by defendant’s argument that “given the double

recovery already permitted by the Court in allowing Plaintiff to collect both pension and back

pay from Boeing for the same time period, as well as unemployment compensation . . . he has

already been more than ‘made whole’ without any additional award of prejudgment interest.” 

(Def.’s Mem. at 2-3.) Just as unemployment compensation and pension benefits are not to be

deducted from a back pay award in order to preserve the ADEA’s goal of make-whole relief, see

McDowell v. Avtex Fibers, Inc., 740 F.2d 214, 217-18 (3d Cir. 1984), vacated and remanded on

other grounds, 469 U.S. 1202 (1985); Anderson v. Consol. Rail Corp., 2000 WL 1622863, at *1

n.1 (E.D. Pa. Oct. 25, 2000), such benefits should not be utilized to offset an award of

prejudgment interest. An award of prejudgment interest would compensate plaintiff for the loss

of the use of money that he otherwise would have earned had he not been unjustly terminated by

defendant and would not result in unusual equities. The Third Circuit has guided that a trial

court “may exercise its discretion to depart from [the presumption in favor of awarding

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prejudgment interest] . . . only when it provides a justification that reasonably supports the

departure.” See Booker, 64 F.3d at 868. In the present case, there is no justification for

departing from the presumption.

Defendant was found to have intentionally discriminated against plaintiff and

defendant has failed to provide a credible reason why it would be inequitable to award

prejudgment interest on plaintiff’s back pay award. Accordingly, plaintiff’s Motion is granted

with respect to his request for prejudgment interest and defendant shall pay plaintiff $30,510

prejudgment interest on the back pay award.

B. Negative Tax Consequences

Plaintiff also requests the court to amend the judgment to include an award for

negative tax consequences. (Motion at 4.) Plaintiff argues that he will sustain negative tax

consequences “because his back pay will be paid in a lump sum, as opposed to having been

spread out over the years since his layoff/termination.” Id. Defendant contends that the Third

Circuit Court of Appeals has not authorized such an award and there is no justification for

granting plaintiff the damages he requests. (Def.’s Mem. at 4.)

The Third Circuit has not specifically addressed the issue of whether damages

should be awarded to compensate a plaintiff for the negative tax consequences from an ADEA

back pay award. In a recent non-precedential opinion, the Third Circuit refused to mold the

jury’s damage award to compensate for negative tax consequences. Gibson v. City of Paterson,

199 Fed. Appx. 133, 136 (3d Cir. 2006) (not precedential). The court noted that the “very few

cases discussing this issue have found such treatment appropriate only when damages are for

back-pay, resulting in disparate tax treatment between those wages, had they been paid when

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owed, and their payment as a lump sum.” Id. In Gibson, the plaintiff’s damages were not for

back pay, but rather were based on emotional pain and anguish. Id. at 136-37. Previously, in

Gelof v. Papineau, 829 F.2d 452, 455-56 (3d Cir. 1987), the Third Circuit addressed the method

used to calculate an element of damages intended to compensate the plaintiff for the increased

tax burden resulting from a lump sum back pay award. However, the court refused to authorize

an award to compensate for negative tax consequences in all back pay cases. Id. at 455 n.2 (“In

light of Delaware’s concession that the judgment should properly include the negative tax impact

of a lump sum payment as an element of damages, we do not address the question of whether

such an award should be made in all back pay cases.”).

District courts in this circuit have both granted motions to mold verdicts on the

basis of negative tax consequences and denied such motions. See Jordan v. CCH, Inc., 230 F.

Supp. 2d 603, 617 (E.D. Pa. 2002) (vacated) (amending judgment to include an award for

negative tax consequences); O’Neill v. Sears, Roebuck, & Co., 108 F. Supp. 2d 443, 446-48

(E.D. Pa. 2000) (amending judgment to include an award for negative tax consequences); Becker

v. ARCO Chem. Co., 15 F. Supp. 2d 621, 638 (E.D. Pa.1998) (denying motion to mold verdict to

account for negative tax consequences), appeal dismissed on other grounds, 207 F.3d 176 (3d

Cir. 2000); Shovlin v. Timemed Labeling Sys., Inc., 1997 WL 102523, at *2-3 (E.D. Pa. Feb. 28,

1997) (denying motion to mold verdict to account for negative tax consequences).

Plaintiff provided the court with an affidavit from his expert, Mr. Verzilli, which

estimates that plaintiff will incur a negative tax consequence of $42,893. See Motion at Exs. B

and C and Second Supplement to Plaintiff’s Motion to Mold Verdict (Doc. No. 101). However,

the court does not find compelling the argument that plaintiff must be awarded damages for the

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increased tax burden in order to be made whole. Absent express direction from the Third Circuit

that damages should be awarded to compensate a plaintiff for the negative tax consequences

from an ADEA back pay award, this court is not inclined to award such relief. 

Accordingly, plaintiff’s Motion is denied with respect to his request for

compensation for the negative tax consequences of the jury’s award.

C. Attorney Fees

Plaintiff submitted his attorney’s computer generated records which support his

request for reimbursement of attorney fees and costs in the amount of $330,481.37 in fees and

$9,653.87 in costs. At the outset, the court notes that the plaintiffs’ attorneys worked tenaciously

for many years in securing an outstanding result for their client. This case was filed in 2003. 

The district judge, to whom the case was assigned, granted summary judgment for the defendant. 

Tomasso v. Boeing Co., 2004 WL 2646592 (E.D. Pa. Nov. 17, 2004). Plaintiff appealed to the

Third Circuit Court of Appeals, which reversed in an opinion authored by the late Judge Becker,

with a dissenting opinion written by Judge Roth. Tomasso v. Boeing Co., 445 F.3d 702 (3d Cir.

2006). After remand, the case was tried before the undersigned, upon consent of the parties. The

differing opinions of the above judges as to the sufficiency of the evidence supporting plaintiff’s

claims demonstrate that plaintiff’s chance of winning the case at trial was far from certain. The

defense vigorously contested plaintiff’s claims at trial.

Having prevailed on the merits, plaintiff is entitled to an award of reasonable

attorney fees and costs pursuant to 29 U.S.C. § 626(b). Blum v. Witco Chem. Corp., 888 F.2d

975, 983 (3d Cir. 1989). The party requesting attorney fees has the burden of demonstrating that

the request is reasonable. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). To satisfy

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this burden, the fee petition must “submit evidence supporting the hours worked and rates

claimed.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The party challenging the fee

petition must make specific objections that are sufficient to give fee applicants notice of the

objections to the requested fees. Rode, 892 F.2d at 1183. “Once the adverse party raises

objections to the fee request, the district court has a great deal of discretion to adjust the fee

award in light of those objections.” Id.

An attorney fee award is calculated by multiplying the number of hours

reasonably expended on the litigation by a reasonable hourly rate. Hughes v. Repko, 578 F.2d

483, 485 (3d Cir. 1978). The reasonable hourly rate multiplied by the reasonable hours is known

as the lodestar. Generally, the lodestar is presumed to be the reasonable fee. However, the court

“has the discretion to make certain adjustments to the lodestar.” Rode, 892 F.2d at 1183.

1. Calculation of Lodestar

a. Reasonable Hours

In evaluating a fee petition, a court should exclude hours that are not reasonably

expended. Id. “In determining what hours are reasonably expended on the suit, ‘the most critical

factor is the degree of success obtained . . . . Where a plaintiff has obtained excellent results, his

attorney should recover a fully compensatory fee.’” Blum, 829 F.2d at 378 (quoting Hensley,

461 U.S. at 435-36).

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Plaintiff’s attorneys seek compensation for a total of 924.10 hours, which consist

of the labor of the following attorneys:

Norman Perlberger 328.08

Gerald Jay Pomerantz 85.50

Mark S. Scheffer 153.31

Michael W. Jones 357.21

TOTAL: 924.10 hours

Defendant makes several objections to the hours expended by counsel. The first

objection is to the approximately 125-150 hours expended reviewing documents and meetings

among co-counsel. Defendant argues that the entries supporting these hours are not specific and

that “the nature of this case simply does not justify the devotion of so much time to document

review and internal meetings.” (Def.’s Mem. at 14). This court disagrees with defendant’s

argument that this case was simple or routine such that the hours plaintiff’s attorneys spent

reviewing documents and conferring with co-counsel were unreasonable. This case concerned a

lay-off by the defendant. In implementing the reduction-in-force (“RIF”), Boeing utilized its

Redeployment Selection Process (“RSP”), which was not discriminatory on its face. According

to the RSP, defendant decided which employees to lay-off after management rated the

employees’ performance. Boeing ranked forty-three employees in the Supplier Quality

Department by giving them scores in nine categories. Defendant ranked plaintiff as the worst

employee, thus justifying his lay-off. See Tomasso, 445 F.3d at 705. In order to prove their case,

plaintiff’s attorneys had to review numerous records relating to Boeing’s procedures for the RIF

and the performance of the other forty-two employees. Furthermore, at various times during the

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litigation – in preparation for a deposition or a court appearance, at summary judgment, on

appeal and in preparation at trial – counsel again had to review the documents to refresh their

recollection of the contents. See, e.g., entries of 6/14/04, 9/9/04, 9/20/04, 3/30/05, 2/26/07. 

Thus, the number of hours spent reviewing these documents and conferring with co-counsel was

not excessive.

Furthermore, the court will not deny compensation to plaintiff’s counsel because

the time entries were not more detailed. The computer-generated time sheets provided to the

court do provide a description of the general nature of the activity, e.g., “review docs.” See, e.g.,

entry 12/4/06. It was not practicable to describe each document that was reviewed by counsel in

each time entry. The court credits counsels’ representations that they expended this time

reviewing documents and conferring with co-counsel regarding the case. The court rejects

defendant’s lack of specificity claim. See Washington v. Philadelphia County Ct. of C.P., 89

F.3d 1031, 1038 (3d Cir. 1996) (rejecting claim that attorney fees should be denied because time

entries were not specific and finding that computer-generated time sheets were sufficient). 

Defendant’s next objection is to Norman Perlberger’s expenditure of forty hours

to review the case in August - September, 2006 and twenty-five hours spent reviewing deposition

transcripts in February, 2007. Defendant notes that prior to the appeal to the Third Circuit, the

case was handled by Mark Scheffer, Esquire. After the case was remanded by the Third Circuit,

the trial preparation was assumed by Mr. Perlberger who tried the case before this court. This

court will not deny compensation to plaintiff’s counsel for Mr. Perlberger’s time. Even if Mr.

Scheffer remained as trial counsel, he would have had to spend significant time prior to trial

reviewing documents and deposition transcripts. Thus, Mr. Perlberger’s time was not duplicative

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or unnecessary. Given the successful result at trial, Mr. Perlberger’s time reviewing the

documents and deposition transcript was productive. Furthermore, it was not unreasonable to

have Mr. Perlberger take over the file from Mr. Scheffer for trial since Mr. Perlberger had

considerably more trial experience than Mr. Scheffer. As noted infra, Mr. Perlberger has been a

member of the Bar for some thirty-five years; Mr. Scheffer was admitted approximately

seventeen years ago. Mr. Perlberger’s trial skills contributed to the favorable result for the

plaintiff. 

Defendant’s next objection is to Mr. Scheffer’s time preparing a summary

judgment motion. According to defendant, this task should have been performed by Michael

Jones, whose billing rate is lower than that of Mr. Scheffer. For the reasons stated below, this

court will award the same hourly rate to both Messrs. Scheffer and Jones. Thus, this specific

objection is overruled as moot.

Defendant also objects to the one to two hours spent by attorneys Pomerantz and

Perlberger receiving training from this court’s personnel on the use of the court’s ELMO system,

for the purpose of displaying documents to the jury. Because plaintiff’s counsel did make

extensive use of the ELMO system at trial, the court finds the time spent by counsel learning the

system was reasonable and, accordingly, they will be compensated for this time.

Finally, defendant objects to the 24.5 hours billed by attorney Pomerantz for his

time preparing for trial. Defendant objects to this time, arguing that it was unreasonable to bring

Mr. Pomerantz into the case at the time of trial when Michael Jones, a younger associate, was

unable to attend and assist Mr. Perlberger. The court sustains this objection in part. It is

undisputed that Mr. Jones was unable to attend the trial. It was not unreasonable for Mr.

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Perlberger to seek the assistance of another lawyer given the complexity of the case and also

because defendant had engaged two lawyers to serve as trial counsel. The disputed hours consist

of time when Mr. Pomerantz reviewed documents and consulted with co-counsel regarding

strategy. The time does not appear to be excessive, and accordingly, the court will not deny

compensation for these hours. However, as explained below, because Mr. Pomerantz acted in a

capacity of a junior associate assisting Mr. Perlberger, he will not be awarded a senior partner

hourly rate for these tasks. 

b. Hourly Rate

Plaintiff seeks the following hourly rates for his attorneys: 

Norman Perlberger $450

Gerald Jay Pomerantz $350

Mark S. Scheffer $350

Michael W. Jones $250

“The general rule is that a reasonable hourly rate is calculated according to the

prevailing market rates in the community.” Washington, 89 F.3d at 1035. Defendant contends

that plaintiff has not provided evidence that the above rates are his lawyers’ prevailing market

rates. Because of this deficiency, Boeing argues that the court should award plaintiff’s attorneys

the schedule of rates promulgated by the Philadelphia Community Legal Services, Inc. (“CLS”). 

The Third Circuit has held that courts in their discretion may use the CLS Fee Schedule in fixing

a reasonable hourly rate for counsel. See Maldonado v. Houstoun, 256 F.3d 181, 184, 187 (3d

Cir. 2001) (CLS Fee Schedule is a fair reflection of the prevailing market rate in the Philadelphia

area for civil rights cases). See also Bjorklund v. Phila. Housing Auth., 2003 WL 22988885, at

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*2 (E.D. Pa. Nov. 20, 2003) (same), aff’d, 118 Fed. Appx. 624 (3d Cir. 2004).

Using the CLS Fee Schedule, an attorney with thirty-five years experience such as

Mr. Perlberger commands an hourly rate of $325 to $410 (www.clsphila.org). Likewise, an

attorney with thirty-seven years experience as Mr. Pomerantz would be entitled to a similar

hourly rate. Id. See also Rapp v. Cameron, 2002 WL 254504, at *6 (E.D. Pa. Feb. 20, 2002)

(awarding $350 an hour for attorney with over thirty years experience), aff’d, 775 Fed. Appx. 88

(3d Cir. 2003); Devore v. City of Philadelphia, 2004 WL 414085, at *2 (E.D. Pa. Feb. 20, 2004)

(attorney with twenty-nine years experience awarded $350 per hour). Attorneys Scheffer and

Jones were admitted to the Pennsylvania Bar in 1990 and each has seventeen years experience. 

According to the CLS Fee Schedule, an appropriate hourly rate is $275 to $315

(www.clsphila.org). However, plaintiff submitted no evidence with respect to the practice areas

of Messrs. Scheffer and Jones or the rates at which their time is normally billed to clients. 

Apparently, Mr. Scheffer was a partner in the firm while Mr. Jones was an associate. However,

the CLS Fee Schedule does not make a distinction between a lawyer’s equity status in a law firm

in determining an hourly rate. Id. Thus, for purposes of determining a reasonable hourly rate,

the court will treat Messrs. Scheffer and Jones the same, even though Mr. Scheffer was a partner

in the law firm and plaintiff claims that Mr. Scheffer’s hourly rate is higher than that of Mr.

Jones. Because both Mr. Scheffer and Mr. Jones have practiced law for the same number of

years, and there is neither evidence of their historical billing rates nor their relative experience in

employment discrimination cases, the court will award Mr. Scheffer the same hourly rate for

which Mr. Jones is asking, i.e., $250 per hour. See Rapp, 2002 WL 254504, at *4 (reducing

hourly rates because plaintiff presented no evidence of “when the attorneys graduated law school,

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their areas of speciality, or the manner in which their time is normally billed to clients”).

In the Verified Supplemental Affidavit of Sidney L. Gold, Esquire (Doc. No.

102), submitted by plaintiff, Mr. Gold opines that hourly rates of $350 per hour for Messrs.

Perlberger, Pomerantz and Scheffer and $250 an hour for Mr. Jones are reasonable rates for the

Philadelphia legal market. Mr. Gold is a well-respected Philadelphia lawyer in the area of

employment discrimination litigation and the court credits his opinion. This Affidavit supports

the validity of the CLS Fee Schedule and satisfies plaintiff’s burden of proof that his attorneys’

hourly rates are within the range of prevailing rates charged by Philadelphia attorneys. 

Washington, 89 F.3d at 1036 (affidavit which stated that hourly rate was reasonable and within

the range of prevailing rates charged by Philadelphia attorneys with similar skill and experience

satisfied plaintiff’s burden of proof). Accepting the testimony of Mr. Gold and applying the CLS

Fee Schedule, the court finds reasonable hourly rates for attorneys Perlberger, Scheffer and Jones

to be as follows:

Norman Perlberger $350

Mark S. Scheffer $250

Michael W. Jones $250

Given that Mr. Pomerantz acted in the role of supporting attorney for Mr.

Perlberger and substituted for Mr. Jones, who was unavailable for the trial, the court will award

Mr. Pomerantz the rate of $250 per hour, not the $350 per hour plaintiff requested. This is not a

negative reflection on Mr. Pomerantz’s abilities as an attorney. But in this trial, Mr. Pomerantz

neither questioned a witness, nor presented argument to the court. At trial, he merely assisted

Mr. Perlberger in presenting documents to the jury via the ELMO system. The Third Circuit has

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1 The court denies plaintiff’s request for the application of a contingency multiplier

to the lodestar amount. See In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions,

148 F.3d 283, 341 n. 121 (3d Cir. 1998) (“The Supreme Court has held risk enhancements are

inappropriate in the statutory fee-shifting context.”) (citing Burlington v. Dague, 505 U.S. 557

(1992)).

14

held that it is appropriate for a court to award reduced hourly rates for an experienced attorney’s

services when the work in the case could have been performed by an associate-level attorney. In

Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983), the court expressed its disapproval

of “the wasteful use of highly skilled and highly priced talent for matters easily delegated to nonprofessionals or less experienced associates.” The court stated that “[r]outine tasks, if performed

by senior partners in large firms, should not be billed at their usual rates. A Michelangelo should

not charge Sistine Chapel rates for painting a farmer’s barn.” Id. Similarly, in In re Fine Paper

Antitrust Litig., 751 F.2d 562, 591-93, 599 (3d Cir. 1984), the court found no abuse of discretion

when the district court awarded reduced rates for a partner’s services that represented associatelevel work. 

2. Lodestar

For all the above reasons, the court awards the following fees to plaintiff for the

following attorney’s work:

Norman Perlberger (328.08 hours x $350) = $114,828

Gerald Jay Pomerantz (85.50 hours x $250) = $21,375

Mark S. Scheffer (153.31 hours x $250) = $38,327.50

Michael W. Jones (357.21 hours x $250) = $89,302.50

TOTAL: $263,833.001

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D. Costs

Plaintiff has requested reimbursement for costs of $9,653.87, which appears to be

reasonable. However, included in these costs are $2,989.20 already taxed against defendant by

the Clerk of the U.S. Court of Appeals for the Third Circuit. As of the date of the hearing on

May 25, 2007, the defendant had not paid these costs. Because the appellate court has already

awarded costs for the appeal, the court will order defendant to pay $6,664.67, which is the

balance.

III. CONCLUSION

For all the above reasons, the court will order defendant to pay plaintiff the sum of

$30,510 in prejudgment interest on the back pay award, $263,833 in attorney fees and $6,664.67

in costs. 

An Amended Judgment Order will be entered by the court to add those amounts to

that previously awarded by the jury.

BY THE COURT:

 /s/ TJR 

THOMAS J. RUETER

United States Magistrate Judge

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