Townsend v. Benjamin Enterprises, Inc.

09-0197-cv (L)
Townsend v. Benjamin Enterprises, Inc.
UNITED STATES COURT OF APPEALS 1
2
F OR THE SECOND C IRCUIT 3
4
____________________________________ 5
6
August Term, 2011 7
8
(Argued: August 30, 2011 Decided: May 9, 2012) 9
10
Docket Nos. 09-0197-cv(L), 09-4509-cv(XAP) 11
____________________________________ 12
13
MARTHA DIANE T OWNSEND , 14
15
Plaintiff-Cross-Appellee, 16
17
KARLEAN VICTORIA GREY -A LLEN , 18
19
Plaintiff-Appellant-Cross-Appellee, 20
21
—v.— 22
23
BENJAMIN E NTERPRISES , INC ., HUGH BENJAMIN , MICHELLE B ENJAMIN , 24
25
Defendants-Appellees-Cross Appellants. 26
27
28
____________________________________ 29
30
Before: L IVINGSTON and LOHIER , Circuit Judges, and K OELTL , District 31
Judge. *
32
____________________________________ 33
34
This is an appeal and cross-appeal from a final judgment of 35
the United States District Court for the Southern District of 36
New York (Yanthis, Magistrate Judge). The parties challenge the 37
* The Honorable John G. Koeltl, of the United States District
Court for the Southern District of New York, sitting by
designation.

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decisions of the district court that granted summary judgment 1
dismissing plaintiff Karlean Victoria Grey-Allen’s Title VII 2
retaliation claim; denied the defendants’ post-trial motion for 3
judgment as a matter of law or, in the alternative, for a new 4
trial; and awarded plaintiff Martha Diane Townsend $141,308.80 5
in attorney’s fees and costs. 6
Because we find no error in the district court’s decisions, 7
we affirm. 8
Judge Lohier concurs in a separate opinion. 9
_________________________ 10
11
S TEPHEN BERGSTEIN , Bergstein & Ullrich, LLP,
Chester, NY, for Plaintiff-Appellant-
Cross-Appellee Karlean Victoria Grey-
Allen and Plaintiff-Cross-Appellee
Martha Diane Townsend.
RICHARD G. KASS , Amy M. Culver, Of Counsel,
Bond, Schoeneck & King, PLLC, New York,
NY, for Defendants-Appellees-Cross-
Appellants Benjamin Enterprises, Inc.,
Hugh Benjamin, and Michelle Benjamin.
GAIL S. COLEMAN , Attorney, P. David Lopez,
General Counsel, Lorraine C. Davis,
Acting Associate General Counsel,
Carolyn L. Wheeler, Assistant General
Counsel, for Amicus Curiae U.S. Equal
Employment Opportunity Commission.
MARGARET MC INTYRE , for Amicus Curiae National
Employment Lawyers Association, New
York.
______________________

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JOHN G. K OELTL , District Judge: 1
2
Among other issues, this appeal requires us to answer two 3
questions of first impression in this Court: first, whether 4
there is a viable claim of retaliation under Title VII of the 5
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et 6
seq. (“Title VII”), for participating in an internal employer 7
investigation prior to any proceeding before the Equal 8
Employment Opportunity Commission (“EEOC”); and, second, 9
whether an employer is liable under Title VII for sexual 10
harassment committed by a senior executive who is a proxy or 11
alter ego for the employer, despite the existence of a 12
possible affirmative defense under the Supreme Court’s 13
decisions in Faragher v. City of Boca Raton, 524 U.S. 775 14
(1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 15
742 (1998). 16
These questions arise in the following context. The 17
plaintiff Martha Diane Townsend was employed by defendant 18
Benjamin Enterprises, Inc. (“BEI”). She alleged that she was 19
sexually harassed by defendant Hugh Benjamin, who was the 20
husband of BEI President Michelle Benjamin, and the sole 21
corporate Vice President of BEI, as well as a shareholder of 22
BEI. Plaintiff Karlean Victoria Grey-Allen, the Human 23
Resources Director (“HR Director”) of BEI, began to conduct an 24

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internal investigation of the allegations. However, before 1
completing the investigation, she was fired by defendant 2
Michelle Benjamin. Grey-Allen alleged that her termination 3
was in retaliation for her participation in the internal 4
investigation. 5
Grey-Allen and Townsend sued BEI, Michelle Benjamin, and 6
Hugh Benjamin in the United States District Court for the 7
Southern District of New York for violations of Title VII; New 8
York Human Rights Law, N.Y. Exec. Law § 290 et seq. (“New York 9
Human Rights Law”); and New York State tort law. The District 10
Court (Yanthis, Magistrate Judge) 1 granted summary judgment 11
dismissing Grey-Allen’s retaliation claims, and a jury 12
returned a verdict in favor of Townsend against BEI, Michelle 13
Benjamin, and Hugh Benjamin. Thereafter, the Magistrate Judge 14
denied the defendants’ motion for judgment as a matter of law 15
or, in the alternative, for a new trial, and awarded Townsend 16
attorney’s fees and costs. 17
This is an appeal and a cross-appeal challenging three 18
orders of the Magistrate Judge. 19
1 Pursuant to 28 U.S.C. § 636(c), the parties consented to
have the Magistrate Judge conduct all proceedings including
trial.

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First, Grey-Allen challenges the order granting summary 1
judgment dismissing her Title VII retaliation claim. 2 The 2
district court granted summary judgment on the ground that 3
Grey-Allen’s participation in an internal employer 4
investigation into Townsend’s sexual harassment allegations, 5
an investigation that was not connected to any formal charge 6
with the EEOC, did not qualify as protected activity under the 7
participation clause of Title VII’s anti-retaliation 8
provision. Townsend v. Benjamin Enters., Inc., No. 05 Civ. 9
9378, 2008 WL 1766944 (S.D.N.Y. Apr. 17, 2008). 10
Second, BEI and the Benjamins challenge the district 11
court’s order denying their post-trial motion for judgment as 12
a matter of law or, in the alternative, for a new trial. 3
13
They contend that the district court erred in rejecting 14
various arguments asserted by the defendants, including their 15
2 The district court granted summary judgment dismissing Grey-
Allen’s retaliation claims under both Title VII and the New
York Human Rights Law, and noted that “[c]ourts analyze
retaliation claims under the New York Human Rights Law in the
same manner as Title VII claims.” Townsend v. Benjamin
Enters., Inc., No. 05 Civ. 9378, 2008 WL 1766944, at *2 & n.3
(S.D.N.Y. Apr. 17, 2008). Grey-Allen did not brief the issue
of whether it was error for the district court to grant
summary judgment dismissing her New York Human Rights Law
retaliation claim and has therefore waived any such argument.
3 BEI and Michelle Benjamin appeal those portions of the jury
verdict that were against them. Hugh Benjamin does not appeal
the tort verdict against him.

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argument that there is no “proxy” or “alter ego” exception to 1
the Faragher/Ellerth affirmative defense. 2
Third, BEI and the Benjamins challenge the district 3
court’s order awarding Townsend $141,308.80 in attorney’s fees 4
and costs. They argue that Townsend was not entitled to fees 5
and costs accrued after the defendants made an Offer of 6
Judgment pursuant to Federal Rule of Civil Procedure 68 7
because, they assert, the Offer exceeded the sum of Townsend’s 8
ultimate recovery and her fees and costs at the time of the 9
Offer. They contend that the district court mistakenly 10
reached a contrary conclusion because it erred in calculating 11
the reasonable hourly rate for an attorney’s services by 12
considering the prevailing market rate in the district, rather 13
than the rate stated in Townsend’s retainer agreement with her 14
counsel. 15
Because we find no error in the district court’s 16
thoughtful and well-reasoned opinions, we affirm. 17
18
BACKGROUND 19
I. 20
Townsend began working at BEI in June 2002. She held the 21
position of office manager and First Impressions Director, or 22
receptionist. BEI trains disadvantaged or low-skilled 23
individuals to work for local companies. Michelle Benjamin, 24

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the President of BEI, is a co-owner of BEI and has the power 1
to hire and fire employees. Hugh Benjamin is married to 2
Michelle Benjamin and is the sole corporate Vice President of 3
BEI, as well as a corporate shareholder. Hugh Benjamin once 4
owned 34% of the corporate shares but owned only 5% of the 5
corporate shares at the time of trial. 6
Townsend alleged that Hugh Benjamin sexually harassed her 7
from the summer of 2003 through March 2005 by directing 8
sexually offensive comments at her, propositioning her, 9
touching her sexually, and sexually assaulting her. On March 10
9, 2005, Townsend told Michelle Benjamin about the harassment. 11
On March 17, 2005, Townsend reported the sexual harassment to 12
Karlean Victoria Grey-Allen, the HR Director of BEI. 13
14
II. 15
Grey-Allen began working for BEI as the HR Director in 16
August 2004. When Townsend reported the sexual harassment to 17
her, Grey-Allen asked Townsend to provide a written and oral 18
account of the events that had occurred. Grey-Allen also 19
spoke with the New York State Division of Human Rights, which 20
suggested that she interview Hugh Benjamin and then separate 21
him from Townsend. Grey-Allen then interviewed Hugh Benjamin 22
and asked him to work from home. 23

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On March 21, 2005, Grey-Allen discussed the sexual 1
harassment allegations with Dennis Barnett, a management 2
consultant retained by BEI. Barnett had been assigned to 3
train Grey-Allen when she arrived at BEI, and Grey-Allen 4
described him as a mentor with whom she believed she could 5
share confidential concerns. Michelle Benjamin learned of 6
Grey-Allen’s conversation with Barnett and allegedly deemed it 7
inappropriate. Michelle Benjamin terminated Grey-Allen that 8
same day, asserting that Grey-Allen had breached 9
confidentiality by speaking with Barnett. 10
On March 22, 2005, Michelle Benjamin took over the 11
investigation of Townsend’s sexual harassment allegations. 12
She allowed Hugh Benjamin to return to the office. She also 13
retained HR Delivery, Inc. (“HR Delivery”), an outside human 14
resources organization, to conduct the investigation. Grey- 15
Allen contends that the investigation by HR Delivery was 16
inadequate and that Michelle Benjamin controlled how the 17
investigation was conducted and what information HR Delivery 18
was able to access. HR Delivery ultimately concluded that 19
“nothing happened” between Hugh Benjamin and Townsend and that 20
it was a “he said versus she said” case. 21
On March 23, 2005, Townsend resigned from BEI. She told 22
Michelle Benjamin that she could not “take it in that office” 23
after Hugh Benjamin was permitted to come back to work. In 24

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April 2005, Townsend and Grey-Allen filed a joint complaint 1
with the EEOC. No charge had yet been filed with the EEOC at 2
the time Grey-Allen conducted her investigation or at the time 3
Grey-Allen was terminated. 4
5
III. 6
Townsend and Grey-Allen filed their complaint in the 7
Southern District of New York on November 4, 2005. On 8
February 3, 2006, the defendants served Townsend with an Offer 9
of Judgment pursuant to Rule 68 for $50,000, inclusive of all 10
attorney’s fees and costs accrued through that time. Townsend 11
rejected that Offer. The defendants did not make an Offer of 12
Judgment to Grey-Allen. 13
On March 13, 2008, the district court initially denied 14
the defendants’ motion for summary judgment that sought to 15
dismiss all claims by Townsend and Grey-Allen. Townsend v. 16
Benjamin Enters., Inc., No. 05 Civ. 9378, 2008 WL 686631 17
(S.D.N.Y. Mar. 13, 2008). However, on the defendants’ motion 18
for reconsideration, the district court granted summary 19
judgment dismissing Grey-Allen’s retaliation claims under 20
Title VII and the New York Human Rights Law, holding that, by 21
participating in an internal investigation into Townsend’s 22
sexual harassment allegations that was not associated with any 23
EEOC proceeding, Grey-Allen had not engaged in protected 24

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activity under the participation clause of Title VII’s anti- 1
retaliation provision. 4 Townsend, 2008 WL 1766944, at *2. 2
Townsend’s claims proceeded to a jury trial. On December 3
12, 2008, the jury returned a verdict in favor of Townsend for 4
$30,400. The jury found that Hugh Benjamin had subjected 5
Townsend to a hostile work environment and also found that he 6
was the alter ego of BEI and that his actions were therefore 7
imputed to BEI. The jury also found Hugh Benjamin liable for 8
civil battery. The jury did not find BEI liable under Title 9
VII for constructive discharge. The jury award consisted of 10
$5200 against BEI, Michelle Benjamin, and Hugh Benjamin under 11
Title VII and the New York Human Rights Law 5 and $25,200 12
against Hugh Benjamin under New York tort law. 13
On October 2, 2009, the district court awarded attorney’s 14
fees and costs to Townsend in the amount of $141,308.80. The 15
district court thereafter denied a motion for reconsideration 16
of this fee award. Townsend v. Benjamin Enters., Inc., No. 05 17
Civ. 9378, 2009 WL 3722716 (S.D.N.Y. Nov. 6, 2009). 18
4 The district court noted that Grey-Allen “concede[d] that
she cannot claim protection under the opposition clause [of
Title VII] because she lacked a good faith belief that
Townsend was sexually harassed.” Townsend, 2008 WL 1766944,
at *2.
5 BEI alone was found liable for violations of Title VII, and
Michelle Benjamin, Hugh Benjamin, and BEI were found jointly
and severally liable for violations of the New York Human
Rights Law.

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Grey-Allen filed her notice of appeal on January 12, 2009 1
and an amended notice of appeal on November 2, 2009. Cross- 2
appellants BEI, Michelle Benjamin, and Hugh Benjamin filed 3
their notice of appeal on October 28, 2009. 4
5
DISCUSSION 6
I. 7
A. 8
Grey-Allen contends that the district court erred in 9
holding that the participation clause of Title VII’s anti- 10
retaliation provision does not protect participation in an 11
internal employer investigation not associated with any formal 12
EEOC charge. She argues that the district court thus erred in 13
granting summary judgment dismissing her Title VII retaliation 14
claim on this basis. We review a district court’s grant of 15
summary judgment de novo, construing the evidence in the 16
manner most favorable to the non-moving party. See Okin v. 17
Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 427 18
(2d Cir. 2009). 19
The district court found that Grey-Allen did not engage 20
in protected activity under the participation clause because 21
“[i]n order to gain protection under the participation 22
clause, the participation must be in an investigation or 23
proceeding covered by Title VII, and thus not in an 24
internal employer investigation.” Correa v. Mana Prods., 25
Inc., [550 F. Supp. 2d 319, 329 (E.D.N.Y. 2008).] Here, 26

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it is undisputed that Grey-Allen’s investigation was 1
conducted pursuant to her employer’s internal procedures; 2
more to the point, Grey-Allen’s actions were not 3
associated with any Title VII proceeding. 4
5
Townsend, 2008 WL 1766944, at *2. The question of whether the 6
participation clause covers internal investigations not 7
associated with a formal EEOC charge 6 is a question of first 8
impression in this Court. 9
Section 704(a) of Title VII contains both an opposition 10
clause and a participation clause, making it unlawful for an 11
employer to retaliate against an individual “because he has 12
opposed any practice made an unlawful employment practice by 13
6 We express no opinion on whether participation in an
internal investigation that is begun after a formal charge is
filed with the EEOC falls within the scope of the
participation clause. Some courts have answered this question
in the affirmative. Abbott v. Crown Motor Co., 348 F.3d 537,
543 (6th Cir. 2003) (“[W]e hold that Title VII protects an
employee’s participation in an employer’s internal
investigation into allegations of unlawful discrimination
where that investigation occurs pursuant to a pending EEOC
charge.”); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346,
1353 (11th Cir. 1999) (“[W]e recognize that, at least where an
employer conducts its investigation in response to a notice of
charge of discrimination, and is thus aware that the evidence
gathered in that inquiry will be considered by the EEOC as
part of its investigation, the employee’s participation is
participation ‘in any manner’ in the EEOC investigation.”);
see also EEOC v. Total Sys. Servs. Inc., 221 F.3d 1171, 1174
n.3 (11th Cir. 2000) (distinguishing case from Clover on the
ground that no EEOC charge had been filed before the alleged
retaliatory act). Because the investigation and alleged
retaliation at issue here occurred before any charge was filed
with the EEOC, we need not reach this question. See Hatmaker
v. Mem’l Med. Ctr., 619 F.3d 741, 747 (7th Cir. 2010)
(reserving judgment on this question when internal employer
investigation had no nexus to pending EEOC charge).

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this subchapter, or because he has made a charge, testified, 1
assisted, or participated in any manner in an investigation, 2
proceeding, or hearing under this subchapter.” 42 U.S.C. § 3
2000e-3(a). In the proceedings below, Grey-Allen conceded 4
that she was not covered by the opposition clause, because she 5
did not know whether Townsend’s allegations of harassment were 6
true and thus lacked a good-faith belief that the 7
discriminatory action had occurred, which is required for 8
protection under the opposition clause. 7 Townsend, 2008 WL 9
1766944, at *2. Instead, Grey-Allen asserted that, by 10
conducting an investigation into Townsend’s allegations of 11
sexual harassment in her capacity as BEI’s HR Director, she 12
engaged in protected activity under the participation clause. 13
“‘As in all statutory construction cases, we begin with 14
the language of the statute.’” United States v. Am. Soc’y. of 15
Composers, Authors & Publishers, 627 F.3d 64, 72 (2d Cir. 16
2010) (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 17
(2002)). Grey-Allen contends that the language “participate[] 18
7 The district court granted summary judgment before the
Supreme Court rendered its decision in Crawford v.
Metropolitan Government of Nashville & Davidson County, 555
U.S. 271 (2009), which adopted an expansive interpretation of
the opposition clause of Title VII’s anti-retaliation
provision. Counsel for Grey-Allen contended at oral argument
that Grey-Allen would have been protected by the opposition
clause had the proceedings occurred after Crawford and had she
relied on the opposition clause. (Oral Arg. Tr., Aug. 30,
2011 (“Tr.”), at 9-10.)

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in any manner in an investigation, proceeding, or hearing 1
under this subchapter,” 42 U.S.C. § 2000e-3(a), encompasses 2
participation in any proceeding intended to remedy employment 3
discrimination under Title VII, including internal sexual 4
harassment investigations not connected with any formal EEOC 5
proceeding or charge. We decline to adopt such a strained 6
interpretation of the language of the statute. 7
The language of the participation clause confines those 8
proceedings in which participation is protected to those 9
“under this subchapter,” meaning subchapter VI of Chapter 21 10
of Title 42. 42 U.S.C. §§ 2000e—2000e-17. Much of this 11
subchapter is devoted to describing the enforcement powers of 12
the EEOC and the procedures by which the EEOC carries out its 13
investigations and hearings. See, e.g., 42 U.S.C. §§ 2000e-5, 14
2000e-8, 2000e-9. An “investigation . . . under this 15
subchapter” thus plainly refers to an investigation that 16
“occur[s] in conjunction with or after the filing of a formal 17
charge with the EEOC; it does not include participating in an 18
employer’s internal, in-house investigation, conducted apart 19
from a formal charge with the EEOC.” Total Sys. Servs, 221 20
F.3d at 1174. 21
Every Court of Appeals to have considered this issue 22
squarely has held that participation in an internal employer 23
investigation not connected with a formal EEOC proceeding does 24

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not qualify as protected activity under the participation 1
clause. See Hatmaker, 619 F.3d at 746-47; Total Sys. Servs, 2
221 F.3d at 1174; Vasconcelos v. Meese, 907 F.2d 111, 113 (9th 3
Cir. 1990). The Courts of Appeals for the Fifth and Sixth 4
Circuits have also suggested that, for conduct to be protected 5
by the participation clause, it must occur in connection with 6
a formal EEOC proceeding. See Abbott, 348 F.3d at 543; Byers 7
v. Dall. Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 8
2000). 8
9
While Grey-Allen points to the decision by the Court of 10
Appeals for the Ninth Circuit in Hashimoto v. Dalton, 118 F.3d 11
671 (9th Cir. 1997), where the court concluded that the 12
plaintiff’s visit to the Navy’s Equal Employment Opportunity 13
(EEO) counselor qualified as protected activity under the 14
participation clause, id. at 680, Hashimoto is distinguishable 15
from Grey-Allen’s case. The EEOC regulations in force at the 16
time Hashimoto was decided required a federal employee to make 17
a complaint to the EEO counselor within thirty days of the 18
alleged discrimination as part of the required exhaustion of 19
administrative remedies. See id. at 678; 29 C.F.R. 20
8 Several district courts in this Circuit have similarly
concluded that participation in an internal investigation is
not participation in a proceeding triggering the participation
clause. See, e.g., Correa, 550 F. Supp. 2d at 329; Bick v.
City of New York, No. 95 Civ. 8781, 1997 WL 381801, at *4
(S.D.N.Y. July 10, 1997).

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§ 1613.214(a)(1)(i) (1987). Thus, the complaint to the EEO 1
counselor constituted participation in an investigation, 2
proceeding, or hearing “under” Title VII, because the 3
complaint was required by the EEOC regulations as a 4
prerequisite to bringing a claim. 9
5
The case law from other Courts of Appeals thus supports 6
our conclusion that the plain language of the participation 7
clause does not include participation in an internal employer 8
investigation unrelated to a formal EEOC charge. 9
Grey-Allen relies on the decisions in Deravin v. Kerik, 10
335 F.3d 195 (2d Cir. 2003), and McMenemy v. City of 11
Rochester, 241 F.3d 279 (2d Cir. 2001), but those decisions 12
offer little support for her position. Deravin stands merely 13
for the proposition that defending oneself in an EEOC 14
investigation is protected activity under the participation 15
clause; it sheds no light on whether participation in an 16
internal employer investigation so qualifies. 335 F.3d at 17
204-05. While this Court held in McMenemy that a city 18
9 The same was true in Kurtz v. McHugh, 423 F. App’x 572 (6th
Cir. 2011), where the court found that the plaintiff engaged
in protected activity under the participation clause by making
a statement to the EEO counselor and otherwise participating
in EEO proceedings. Id. at 578. The employee in that case
was a federal employee and was thus required under the EEOC
regulations to make a complaint to the EEO counselor within
forty-five days of the discriminatory conduct in order to
exhaust administrative remedies. See id. at 575-76; 29 C.F.R.
§ 1614.105(a)(1) (2010).

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employee’s internal investigation of sexual harassment 1
allegations constituted protected activity, this Court 2
analyzed the participation clause and opposition clause 3
together and thus did not decide the independent question of 4
whether participation in an internal employer investigation 5
qualifies as protected activity under the participation 6
clause. 241 F.3d at 283-85. 7
Grey-Allen also contends that the affirmative defense 8
created by the Supreme Court in Faragher and Ellerth brings 9
internal investigations “under” Title VII within the language 10
of the participation clause. In Faragher and Ellerth, the 11
Supreme Court established an affirmative defense to an 12
employer’s vicarious liability for a hostile work environment 13
created by a supervisor of the plaintiff employee. To raise 14
such a defense successfully, the employer must not have taken 15
a tangible employment action against the plaintiff and must 16
demonstrate: “(a) that the employer exercised reasonable care 17
to prevent and correct promptly any sexually harassing 18
behavior, and (b) that the plaintiff employee unreasonably 19
failed to take advantage of any preventive or corrective 20
opportunities provided by the employer or to avoid harm 21
otherwise.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 22
765. While the Faragher/Ellerth affirmative defense creates 23
an incentive for employers to conduct internal investigations 24

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in order to show that they have met the first prong of this 1
defense, it does not impose an obligation on employees to 2
participate in such investigations as a necessary prerequisite 3
to bringing a discrimination claim under Title VII. See Total 4
Sys. Servs., 221 F.3d at 1174 n.3 (“According to the EEOC, 5
[Faragher and Ellerth] essentially made reporting an incident 6
of harassment to the employer a new prerequisite to filing a 7
claim. We disagree with the EEOC’s use of these important 8
decisions. . . . We do not believe Congress intended to 9
protect absolutely every sexual harassment complaint made to 10
an employer . . . as a protected activity under the 11
participation clause.”). Faragher and Ellerth do not provide 12
a basis for bringing internal investigations not associated 13
with a formal EEOC charge “under this subchapter” within the 14
language of the participation clause. 10
15
10 The EEOC has submitted an amicus brief urging us to adopt a
contrary interpretation of the participation clause, one that
embraces internal employer investigations. The EEOC’s views
are entitled to deference to the extent they have the power to
persuade. See Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944) (“The weight of [an agency’s] judgment in a particular
case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking power to
control.”); N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health,
556 F.3d 114, 130-31 (2d Cir. 2003) (amicus brief from the
Food and Drug Administration was subject to Skidmore
deference). However, for the reasons explained above, we do
not find the EEOC’s interpretation persuasive in this case.

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Grey-Allen also argues more generally that, because 1
internal investigations are integral to the deterrent aims and 2
effective operation of Title VII, participation in such 3
investigations should qualify as protected activity. However, 4
this cannot be squared with the plain language of the 5
participation clause, which requires that the investigation in 6
which the employee participates be “under” Title VII, not 7
merely integral to effectuating its purposes. 8
We thus affirm the district court’s grant of summary 9
judgment dismissing Grey-Allen’s Title VII retaliation claim. 10
11
B. 12
Because we affirm the district court’s grant of summary 13
judgment dismissing Grey-Allen’s Title VII retaliation claim, 14
we need not address the question of whether a reasonable jury 15
could find that Grey-Allen was the victim of retaliation. 16
17
II. 18
BEI and the Benjamins raise a number of arguments on this 19
appeal. They first assert that the district court erred in 20
denying their motion for judgment as a matter of law or, in 21
the alternative, for a new trial. Specifically, they claim 22
that the district court committed the following errors: (1) 23
concluding that there is a “proxy” or “alter ego” exception to 24

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the Faragher/Ellerth affirmative defense; (2) finding that a 1
reasonable jury could conclude that Hugh Benjamin was a 2
“proxy” or “alter ego” for BEI; (3) instructing the jury on 3
proxy/alter ego liability; and (4) instructing the jury on 4
Michelle Benjamin’s individual liability. 11
5
Second, BEI and the Benjamins argue that the district 6
court abused its discretion in awarding Townsend $141,308.80 7
in attorney’s fees and costs. 8
9
A. 10
BEI and the Benjamins argue that the district court erred 11
in denying their motion for judgment as a matter of law or, in 12
the alternative, for a new trial. We review a district 13
court’s denial of a motion for judgment as a matter of law de 14
novo. See Parrot v. Guardian Life Ins. Co. of Am., 338 F.3d 15
140, 142 (2d Cir. 2003). “We will reverse the denial of 16
judgment as a matter of law only if, notwithstanding making 17
all credibility assessments and drawing all inferences in 18
favor of [the non-moving party], a reasonable juror would be 19
compelled to accept the view of [the moving party].” 20
Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 21
98, 109 (2d Cir. 2002) (internal quotation marks and citations 22
11 BEI and the Benjamins also argue that, if the
Faragher/Ellerth affirmative defense can be applied in this
case, they established that defense as a matter of law.

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omitted). We review a district court’s denial of a motion for 1
a new trial for abuse of discretion. See Hydro Investors, 2
Inc. v. Trafalgar Power Inc., 227 F.3d 8, 15 (2d Cir. 2000). 3
“A motion for a new trial ordinarily should not be granted 4
unless the trial court is convinced that the jury has reached 5
a seriously erroneous result or that the verdict is a 6
miscarriage of justice.” Medforms, 290 F.3d at 106 (internal 7
quotation marks and citations omitted). 8
9
1. 10
BEI and the Benjamins first argue that the district court 11
erred in concluding that the doctrine of proxy/alter ego 12
liability survives Faragher and Ellerth. They contend that 13
the Faragher/Ellerth affirmative defense remains available 14
even when the alleged harasser holds a sufficiently high 15
position within the hierarchy of an organization to be 16
considered the organization’s proxy or alter ego. This is a 17
question of first impression in this Court. 18
This argument cannot be squared with a fair reading of 19
Faragher and Ellerth. In Faragher, the Supreme Court began by 20
outlining its previous case law on the liability of employers 21
in sexual harassment cases. 524 U.S. at 785-93. While noting 22
that “our cases have established few definite rules for 23
determining when an employer will be liable for a 24

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-22-
discriminatory environment that is otherwise actionably 1
abusive,” id. at 788, the Court highlighted those areas of the 2
law in which there was little ambiguity. 3
One such area was the doctrine of proxy/alter ego 4
liability, which is related to, but distinct from, vicarious 5
liability. The Court noted that it was “[not] exceptional 6
that standards for binding the employer were not in issue in 7
Harris [v. Forklift Systems, Inc., 510 U.S. 17 (1993)],” given 8
that “the individual charged with creating the abusive 9
atmosphere was the president of the corporate employer” and 10
thus “was indisputably within that class of an employer 11
organization’s officials who may be treated as the 12
organization’s proxy.” Id. at 789. The Court also cited this 13
Court’s decision in Torres v. Pisano, 116 F.3d 625 (2d Cir. 14
1997), for the proposition that “a supervisor may hold a 15
sufficiently high position ‘in the management hierarchy of the 16
company for his actions to be imputed automatically to the 17
employer.’” Faragher, 524 U.S. at 789-90 (citing and quoting 18
Torres, 116 F.3d at 634-35 & n.11). This doctrine, as 19
approvingly described by Faragher, thus holds an employer 20
liable in its own right for wrongful harassing conduct, rather 21
than vicariously liable for actions of the employer’s agents. 12
22
12 The Court in Faragher also relied upon the proxy/alter ego
doctrine to explain its prior cases holding that liability for

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Similarly, the Court in Ellerth invoked the alter ego 1
doctrine in its discussion of employer liability principles 2
and carefully distinguished the doctrine from the facts of the 3
case before it. 524 U.S. at 758 (“Subsection [219(2)](a) [of 4
the Restatement (Second) of Agency] addresses direct liability 5
. . . and indirect liability, where the agent’s high rank in 6
the company makes him or her the employer’s alter ego. None 7
of the parties contend [the supervisor’s] rank imputes 8
liability under this principle. . . . So, for our purposes 9
here, subsection[] (a) . . . can be put aside.”). Ellerth 10
instead derived the appropriate standard for non-proxy 11
employer liability, and its two-part affirmative defense, from 12
Section 219(2)(d) of the Restatement, which “concerns 13
vicarious liability for intentional torts committed by an 14
employee.” Id. at 759; see also id. at 759-65. 15
Moreover, Faragher and Ellerth made clear that they did 16
not intend to depart from these well-established theories of 17
employer liability in sexual harassment cases. Indeed, 18
Faragher explained that the Supreme Court had affirmed the 19
discriminatory employment actions with tangible results is to
be imputed to employers. 524 U.S. at 790 (“A variety of
reasons have been invoked for this apparently unanimous rule.
Some courts explain, in a variation of the ‘proxy’ theory
discussed above, that when a supervisor makes such decisions,
he ‘merges’ with the employer, and his act becomes that of the
employer.” (emphasis added)).

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relevance of agency principles in those cases in Meritor 1
Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), and that 2
“Meritor’s statement of the law is the foundation on which we 3
build today.” 524 U.S. at 791-92. Thus, the Faragher/Ellerth 4
affirmative defense builds upon rather than repudiates the 5
theory of proxy/alter ego liability articulated in the Court’s 6
prior cases. 7
Every Court of Appeals to have considered this issue has 8
held that the Faragher/Ellerth affirmative defense is 9
unavailable when the supervisor in question is the employer’s 10
proxy or alter ego. See Ackel v. Nat’l Commc’ns, Inc., 339 11
F.3d 376, 383-84 (5th Cir. 2003) (holding that the 12
Faragher/Ellerth defense is unavailable “when the harassing 13
supervisor is . . . ‘indisputably within that class of an 14
employer organization’s officials who may be treated as the 15
organization’s proxy’” (quoting Faragher, 524 U.S. at 789) 16
(emphasis omitted)); Johnson v. West, 218 F.3d 725, 730 (7th 17
Cir. 2000) (same); cf. Passantino v. Johnson & Johnson 18
Consumer Prods., Inc., 212 F.3d 493, 517 (9th Cir. 2000) 19
(holding that the Faragher/Ellerth affirmative defense is 20
“inapplicable as a defense to punitive damages when the 21
corporate officers who engage in illegal conduct are 22

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sufficiently senior to be considered proxies for the 1
company”). 13
2
The EEOC’s interpretation of Title VII, as set forth in 3
its Enforcement Guidance, is in accord with this analysis. 4
See EEOC Enforcement Guidance: Vicarious Employer Liability 5
for Unlawful Harassment by Supervisors, 1999 WL 33305874, at 6
*18 (June 18, 1999) (“[When the alleged harasser qualifies as 7
the employer’s proxy], the official’s unlawful harassment is 8
imputed automatically to the employer. Thus, the employer 9
cannot raise the [Faragher/Ellerth] affirmative defense, even 10
if the harassment did not result in a tangible employment 11
action.” (footnote omitted)). The EEOC’s Enforcement Guidance 12
is entitled to deference to the extent it has the power to 13
persuade. See Skidmore, 323 U.S. at 140; Nat’l R.R. Passenger 14
Corp. v. Morgan, 536 U.S. 101, 110 n.6 (2002) (EEOC’s 15
interpretation contained in Compliance Manual subject to 16
13 Other Courts of Appeals have continued to apply the
proxy/alter ego doctrine after Faragher and Ellerth but have
not ruled on whether proxy/alter ego liability bars an
employer from raising the Faragher/Ellerth defense. See Helm
v. Kansas, 656 F.3d 1277, 1286 (10th Cir. 2011) (“We have not
squarely addressed whether an employer may rely on the
Faragher/Ellerth defense when a victimized employee seeks to
impose liability on the employer under the alter-ego theory
. . . . We need not decide that issue to resolve this case,
however, as we conclude that . . . Judge Stewart did not
operate as the alter ego of the State.”); Mallinson-Montague
v. Pocrnick, 224 F.3d 1224, 1228 n.2, 1232-33 (10th Cir. 2000)
(court did not address the issue because the plaintiff did not
raise the question and the Faragher/Ellerth affirmative
defense failed on the merits).

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Skidmore deference); Mack v. Otis Elevator Co., 326 F.3d 116, 1
127 (2d Cir. 2003) (“While we are not bound by [the EEOC’s] 2
enforcement guidelines, they are entitled to respect to the 3
extent that they are persuasive.”). For the reasons explained 4
above, we find the EEOC’s interpretation persuasive. 5
In sum, there was no error in the district court’s 6
conclusion that the Faragher/Ellerth defense is unavailable 7
when the alleged harasser is the employer’s proxy or alter ego 8
and in the district court’s denial of the defendants’ post- 9
trial motion on this basis. 10
11
2. 12
BEI and the Benjamins next argue that the jury could not 13
reasonably have concluded that Hugh Benjamin was BEI’s alter 14
ego and that the district court thus erred in denying the 15
defendants’ motion for judgment as a matter of law on this 16
basis. We disagree. 17
BEI and the Benjamins argue that no reasonable jury could 18
find that BEI condoned Hugh Benjamin’s harassment, given that 19
BEI’s President was Hugh Benjamin’s wife. However, the 20
relevant question is not whether the employer approved of the 21
actions of the supervisor but rather whether the supervisor 22
occupied a “sufficiently high position ‘in the management 23
hierarchy of the company for his actions to be imputed 24

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automatically to the employer.’” Faragher, 524 U.S. at 789-90 1
(quoting Torres, 116 F.3d at 634); see also Ackel, 339 F.3d at 2
384 (“[T]he only factor relevant to the determination of 3
whether [the supervisor in question] was a proxy for [the 4
employer] is whether he held a ‘sufficiently high position in 5
the management hierarchy’ so as to speak for the corporate 6
employer.” (quoting Faragher, 524 U.S. at 789)). 7
In this case, the jury reasonably could have concluded 8
that Hugh Benjamin occupied such a position. Courts of 9
Appeals have considered supervisors to be of sufficiently high 10
rank to qualify as an employer’s proxy or alter ego when the 11
supervisor is “a president, owner, proprietor, partner, 12
corporate officer,” or otherwise highly-positioned in the 13
management hierarchy. Johnson, 218 F.3d at 730; see also 14
Helm, 656 F.3d at 1286 (“In Faragher, the Supreme Court 15
suggested that presidents, owners, proprietors, partners, 16
corporate officers, and supervisors with a high position in 17
the management hierarchy are the types of officials who can be 18
considered an organization’s alter ego.”); EEOC v. Karenkim, 19
Inc., No. 08 Civ. 1019, 2010 WL 3810160, at *4-5 (N.D.N.Y. 20
Sept. 22, 2010) (applying same standard). Here, Hugh Benjamin 21
is the only corporate Vice President of BEI, operating as 22
second-in-command, with a position immediately below Michelle 23
Benjamin in the corporate hierarchy. He is also a corporate 24

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shareholder with a financial stake in BEI. All of BEI’s 1
corporate shares are held by Hugh Benjamin, Michelle Benjamin, 2
and their two children. Given these facts, the jury 3
reasonably could have concluded that Hugh Benjamin was 4
sufficiently high within the corporate hierarchy to qualify as 5
BEI’s alter ego. See Ackel, 339 F.3d at 384 (finding a 6
triable issue of fact with respect to whether supervisor was a 7
proxy for the corporation when he was President and General 8
Manager of the company and a stockholder and member of the 9
Board of Directors with managerial duties); Mallinson- 10
Montague, 224 F.3d at 1232-33 (holding that alter ego 11
instruction was appropriate based on the supervisor’s high 12
managerial rank as Senior Vice President of Consumer Lending 13
and his supervisory duties). 14
Moreover, Hugh Benjamin exercised a significant degree of 15
control over corporate affairs, which is consistent with alter 16
ego liability. He collaborated with Michelle Benjamin on 17
corporate decisions including hiring, and the supervisors and 18
managers in the field reported directly to him. See 19
Mallinson-Montague, 224 F.3d at 1233 (finding persuasive that 20
Senior Vice President of Consumer Lending “had the authority 21
to hire and fire employees in [his] department” and “was the 22
ultimate supervisor of all employees in [his] department”). 23
While Michelle Benjamin had the power to overrule Hugh 24

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Benjamin’s decisions, this fact alone, without more evidence 1
of pervasive control over Hugh Benjamin by other corporate 2
officers at BEI, is not sufficient to establish as a matter of 3
law that Hugh Benjamin was not BEI’s alter ego. Compare id. 4
at 1233 (holding that an alter ego instruction was appropriate 5
when supervisor in question answered only to the company’s 6
president), with Johnson, 218 F.3d at 730 (holding that a 7
supervisor could not be considered employer’s proxy/alter ego 8
when he had at least two levels of supervisors and likely 9
others within the organization’s bureaucracy). Nor does the 10
fact that Hugh Benjamin owned only 5% of the corporate stock 11
at the time of trial conclusively establish that he is not 12
BEI’s alter ego. “Stock ownership is not a prerequisite for 13
acting as a corporation’s proxy,” Ackel, 339 F.3d at 384; 14
moreover, Hugh Benjamin owned 34% of the corporate shares 15
until 2004, when some of the shares were transferred to the 16
Benjamins’ children for estate planning purposes, a transfer 17
that did not affect Hugh Benjamin’s decisionmaking authority. 18
Thus, because Hugh Benjamin occupied a high managerial rank 19
within BEI and because he exercised significant control over 20
the company’s operations, the jury reasonably could have 21
concluded that he was BEI’s alter ego. The district court 22
therefore did not err in denying the defendants’ motion for 23
judgment as a matter of law on this basis. 24

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3. 1
BEI and the Benjamins also argue that the district 2
court’s jury instruction on alter ego liability was erroneous 3
and that the district court abused its discretion in denying 4
the defendants’ motion for a new trial on this basis. We will 5
grant a new trial if the jury instruction was erroneous and if 6
that error was not harmless. Sanders v. N.Y.C. Human Res. 7
Admin., 361 F.3d 749, 758 (2d Cir. 2004). “[A] jury charge is 8
erroneous if the instruction misleads the jury as to the 9
proper legal standard, or it does not adequately inform the 10
jury of the law.” Luciano v. Olsten Corp., 110 F.3d 210, 218 11
(2d Cir. 1997). 12
The district court’s jury instruction on alter ego 13
liability provided in relevant part that: 14
Under both federal and state law, an employer is strictly 15
liable for hostile work environment sexual harassment by 16
a supervisor when the supervisor’s role is more than a 17
mere supervisor and is actually identical to that of the 18
employer. 19
20
In other words, where an employee serves in a supervisory 21
position and exercises significant control over an 22
employee’s hiring, firing or conditions of employment, 23
that individual operates as the alter ego of the 24
employer, and the employer is strictly liable for any 25
unlawful employment practices of the individual without 26
regard to whether the employer knew of the individual’s 27
conduct. 28
29
Therefore, . . . you must determine whether, under all of 30
the circumstances, [Hugh Benjamin] served in a 31
supervisory position and exercised significant control 32

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over an employee’s hiring, firing or conditions of 1
employment. 2
3
If you determine that Hugh Benjamin was employed in a 4
position sufficiently elevated within the corporate 5
hierarchy as to be viewed as the employer’s alter ego, 6
then you must also find Defendant Benjamin Enterprises 7
strictly liable for hostile work environment sexual 8
harassment under both federal and state law, and 9
Defendant Michelle Benjamin strictly liable for hostile 10
work environment sexual harassment under New York State 11
law. 12
13
On the other hand, if you determine from all of the 14
circumstances that Hugh Benjamin’s role in the 15
corporation was not sufficiently elevated within the 16
corporate hierarchy to be considered the employer’s alter 17
ego, then the employer’s liability is not 18
automatic . . . . 19
20
21
BEI and the Benjamins contend that the jury instruction 22
was erroneous because it suggested to the jury that an 23
individual could be an employer’s alter ego merely because 24
that individual “serves in a supervisory position and 25
exercises significant control over an employee’s hiring, 26
firing or conditions of employment.” They argue that alter 27
ego liability is not so broad as to encompass such a wide 28
range of individuals. We agree. 29
The jury instruction was erroneous because it gave the 30
jury a misleading impression of the proper standard for alter 31
ego liability. Specifically, the instruction twice stated 32
that an individual qualifies as the alter ego of an employer 33
where that individual “serve[s] in a supervisory position and 34

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exercise[s] significant control over an employee’s hiring, 1
firing or conditions of employment.” However, an individual’s 2
mere status as a supervisor with power to hire or fire is not 3
sufficient to render that individual an alter ego of an 4
employer. See Faragher, 524 U.S. at 792 (“Title VII does not 5
make employers ‘always automatically liable for sexual 6
harassment by their supervisors . . . .’” (quoting Meritor, 7
477 U.S. at 72)); Mallinson-Montague, 224 F.3d at 1233 8
(finding that “the district court erred in concluding that the 9
alter ego instruction was appropriate simply because [the 10
defendant] was the Plaintiffs’ supervisor and exercised a high 11
degree of control over them”). 14
12
It is true, as Townsend argues, that other portions of 13
the jury instruction ameliorated this error to some extent by 14
stating that “the supervisor’s role [must be] more than a mere 15
supervisor” and by directing the jury to consider whether 16
“Hugh Benjamin was employed in a position sufficiently 17
elevated within the corporate hierarchy as to be viewed as the 18
employer’s alter ego.” However, we cannot conclude that these 19
portions of the charge were sufficient to correct the 20
misleading impression created by the other erroneous 21
statements. Given that the jury instruction twice stated that 22
14 Indeed, counsel for both parties objected to this language
in the proposed jury instruction.

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an individual qualifies as an alter ego where he or she 1
“serve[s] in a supervisory position and exercise[s] 2
significant control over an employee’s hiring, firing or 3
conditions of employment,” the jury could have been left with 4
the erroneous impression that a supervisor in this position 5
is, by definition, “sufficiently elevated within the corporate 6
hierarchy” for alter ego liability to attach. 7
However, the error in the instruction was harmless. “An 8
error is harmless only when we are persuaded it ‘did not 9
influence the jury’s verdict.’” Sanders, 361 F.3d at 758 10
(quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d 11
Cir. 2000)). We are persuaded that the error here did not 12
influence the jury’s finding with respect to alter ego 13
liability because no reasonable juror could have concluded 14
that Hugh Benjamin was not the alter ego of BEI. Hugh 15
Benjamin was extremely elevated in the corporate hierarchy of 16
BEI, serving as the only corporate Vice President, second only 17
to Michelle Benjamin, BEI’s President. As a senior corporate 18
officer, he answered only to Michelle Benjamin and exercised 19
managerial responsibility for day-to-day operations of BEI. 20
He was also a corporate shareholder with a financial stake in 21
BEI. Given Hugh Benjamin’s extremely high rank within BEI and 22
his significant control over the company’s operations, we are 23
persuaded that any error in the district court’s jury 24

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instruction did not influence the jury’s finding with respect 1
to alter ego liability and was therefore harmless. 2
Accordingly, we affirm the district court’s denial of the 3
defendants’ post-trial motion on this basis. 4
5
4. 6
We have found that the district court correctly concluded 7
(1) that the Faragher/Ellerth defense is unavailable when the 8
supervisor in question is the employer’s proxy or alter ego; 9
(2) that the jury reasonably could have concluded that Hugh 10
Benjamin was BEI’s alter ego; and (3) that there was no 11
prejudicial error in the jury instruction on alter ego 12
liability. Because BEI was thus properly precluded from 13
raising the Faragher/Ellerth defense in the proceedings below, 14
the argument by BEI and the Benjamins that the 15
Faragher/Ellerth defense was proven in this case as a matter 16
of law is moot. 17
18
5. 19
BEI and the Benjamins next claim error in the district 20
court’s instruction regarding individual liability for 21
Michelle Benjamin under the New York Human Rights Law. The 22
jury instruction provided in relevant part that: 23

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If you determine that Hugh Benjamin was employed in a 1
position sufficiently elevated within the corporate 2
hierarchy as to be viewed as the employer’s alter ego, 3
then you must also find Defendant Benjamin Enterprises 4
strictly liable for hostile work environment sexual 5
harassment under both federal and state law, and 6
Defendant Michelle Benjamin strictly liable for hostile 7
work environment sexual harassment under New York State 8
law. 9
10
11
BEI and the Benjamins do not dispute that the jury 12
instruction correctly states the law on employer liability 13
under § 296(1) of the New York Human Rights Law. Under this 14
provision, an individual is properly subject to liability for 15
discrimination when that individual qualifies as an 16
“employer.” N.Y. Exec. Law § 296(1). An individual qualifies 17
as an “employer” when that individual has an ownership 18
interest in the relevant organization or the “power to do more 19
than carry out personnel decisions made by others.” Patrowich 20
v. Chem. Bank, 473 N.E.2d 11, 12 (N.Y. 1984) (per curiam). 21
The jury instruction accurately reflects these principles. 22
Because there was no dispute that Michelle Benjamin had an 23
ownership interest in the company and the power to hire and 24
fire employees, it was proper for the district court to 25
instruct the jury that, as a matter of law, it must find 26
Michelle Benjamin strictly liable upon a finding that Hugh 27
Benjamin qualified as BEI’s alter ego. 28

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BEI and the Benjamins nonetheless contend that the jury 1
instruction was unfair because the claims against Michelle 2
Benjamin had been premised on a theory of aiding and abetting 3
liability under § 296(6) of the New York Human Rights Law 4
rather than a theory of employer liability under § 296(1). 5
However, this assertion does not demonstrate that the jury 6
instruction was incorrect as a statement of the legal 7
principles applicable to § 296(1). Nor does it matter that 8
the original complaint premised its claims against Michelle 9
Benjamin on § 296(6). “The failure in a complaint to cite a 10
statute, or to cite the correct one, in no way affects the 11
merits of a claim. Factual allegations alone are what 12
matters.” Albert v. Carovano, 851 F.2d 561, 571 n.3 (2d Cir. 13
1988) (en banc); see also Flickinger v. Harold C. Brown & Co., 14
947 F.2d 595, 600 (2d Cir. 1991) (directing the entry of 15
judgment for plaintiff on a legal theory not pleaded in the 16
complaint). Moreover, BEI and the Benjamins have not shown 17
that they were prejudiced in any way by the fact that this 18
theory of liability was not raised earlier. The defendants 19
had notice of the proposed jury charge and an opportunity to 20
object to it prior to summations. They do not assert that 21
they would have conducted their defense any differently had 22
the original complaint alleged employer liability under 23
§ 296(1), perhaps because they do not dispute that Michelle 24

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Benjamin plainly qualifies as an employer under this 1
provision. 15 Thus, the district court’s jury instruction on 2
Michelle Benjamin’s individual liability was not erroneous. 3
4
B. 5
BEI and the Benjamins next argue that the district 6
court’s award of attorney’s fees was an abuse of discretion. 7
“Our review of an award of attorneys’ fees is ‘highly 8
deferential to the district court’” and we will reverse such 9
an award only for an abuse of discretion. Crescent Publ’g 10
Grp., Inc. v. Playboy Enters., Inc., 246 F.3d 142, 146 (2d 11
Cir. 2001) (quoting Alderman v. Pan Am World Airways, 169 F.3d 12
99, 102 (2d Cir. 1999)). 13
Under Title VII, “the court, in its discretion, may allow 14
the prevailing party . . . a reasonable attorney’s fee . . . 15
as part of the costs.” 42 U.S.C. § 2000e-5(k). In this case, 16
the district court awarded attorney’s fees and costs to 17
Townsend in the amount of $141,308.80. This award included 18
fees and costs accrued both before and after the defendants 19
made an Offer of Judgment pursuant to Rule 68 (“Rule 68 20
Offer”) in the amount of $50,000. BEI and the Benjamins 21
15 At oral argument, counsel for BEI and the Benjamins conceded
that “[i]f there were a pleading that [Michelle Benjamin] were
the employer then [the district court] would have been right”
to give the instruction at issue here. (Tr. 40).

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contend that the plaintiff is not entitled to fees and costs 1
accrued after the defendants’ Rule 68 Offer. 2
Rule 68 provides in relevant part that: 3
[A] party defending against a claim may serve on an 4
opposing party an offer to allow judgment on specified 5
terms, with the costs then accrued. . . . If the judgment 6
that the offeree finally obtains is not more favorable 7
than the unaccepted offer, the offeree must pay the costs 8
incurred after the offer was made. 9
10
Fed. R. Civ. P. 68. Thus, a prevailing plaintiff may not 11
recover from the defendant attorney’s fees and costs accrued 12
after an Offer of Judgment is served if the Offer exceeds the 13
sum of the plaintiff’s ultimate recovery plus the amount of 14
fees and costs accrued by the plaintiff as of the time of the 15
Offer. See Marek v. Chesny, 473 U.S. 1, 11-12 (1985); Reiter 16
v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 229 (2d Cir. 2006). 17
Here, the district court concluded that the $50,000 Rule 68 18
Offer did not exceed the sum of the $30,400 jury verdict and 19
the fees and costs accrued as of the date of the Rule 68 20
Offer. The district court determined that the plaintiff was 21
therefore entitled to recover reasonable fees and costs, 22
including those accrued after the Rule 68 Offer. 23
To determine pre-Offer attorney’s fees, the district 24
court applied the familiar method of deriving reasonable 25
hourly rates for attorney and paralegal services from the 26
prevailing market rate for counsel of similar experience and 27

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skill in the district, and multiplying these respective rates 1
by the number of hours reasonably expended by attorneys and 2
paralegals prior to the Rule 68 Offer. 16 BEI and the Benjamins 3
contend that the district court erred in arriving at an 4
attorney hourly rate of $350 based on prevailing market rates, 5
rather than a rate of $250 based on Townsend’s retainer 6
agreement with counsel. That retainer agreement provided that 7
Townsend would pay to her attorneys various amounts depending 8
on whether the case settled or went to trial. One measure was 9
that Townsend would pay to her attorneys 30% of any pre-trial 10
settlement or $250 per hour, whichever was greater. The 11
parties agree that, had the rate of $250 been used, the Rule 12
68 Offer would have exceeded the sum of the plaintiff’s 13
ultimate recovery plus pre-Offer fees and costs. 14
The district court did not err in declining to use the 15
retainer rate as the basis for calculating the reasonable 16
hourly rate. In Blanchard v. Bergeron, 489 U.S. 87 (1989), 17
the Supreme Court made clear that, in determining a reasonable 18
hourly rate for an attorney’s services, the amount set forth 19
16 The district court determined the reasonable hourly rate for
attorneys’ services to be $350 and the reasonable rate for the
paralegal to be $100. Multiplying these respective figures by
the reasonable hours expended, and adding $308.50 in pre-Offer
costs, the district court arrived at a total of $25,963.50.
The sum of this figure and the $30,400 jury award was
$56,363.50, more than the $50,000 Rule 68 Offer.

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in a contingent fee retainer agreement is not dispositive. 1
Id. at 93. The Court explained that: 2
[A]s we see it, a contingent-fee contract does not impose 3
an automatic ceiling on an award of attorney’s fees 4
. . . . As we understand § 1988’s provision for allowing 5
a ‘reasonable attorney’s fee,’ it contemplates reasonable 6
compensation, in light of all of the circumstances, for 7
the time and effort expended by the attorney for the 8
prevailing plaintiff, no more and no less. Should a fee 9
agreement provide less than a reasonable fee calculated 10
in this manner, the defendant should nevertheless be 11
required to pay the higher amount. 12
13
Id.; see also Reiter, 457 F.3d at 232-33 (holding that the 14
market rate rather than the retainer agreement rate was the 15
best measure of the reasonable hourly rate when the retainer 16
agreement rate was discounted for the plaintiff in a civil 17
rights case). Indeed, this Court has instructed that 18
determination of a reasonable hourly rate “contemplates a 19
case-specific inquiry into the prevailing market rates for 20
counsel of similar experience and skill to the fee applicant’s 21
counsel,” an inquiry that may “include judicial notice of the 22
rates awarded in prior cases and the court’s own familiarity 23
with the rates prevailing in the district.” Farbotko v. 24
Clinton Cnty., 433 F.3d 204, 209 (2d Cir. 2005). 25
The district court, relying on Farbotko, conducted just 26
such a case-specific inquiry here. The court examined the 27
hourly rates awarded to civil litigators in similar firms in 28
the district, concluding that they ranged from $225 to $375 29

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per hour. The court also noted that one of Townsend’s 1
attorneys had been awarded $310 per hour in another case in 2
the Southern District of New York two years before the fee 3
award in this case. The court declined to rely on an 4
affidavit from an attorney in another law firm attesting that 5
rates charged by attorneys in her firm ranged from $675-900, 6
reasoning that this attorney’s firm was much larger in size 7
than Townsend’s attorneys’ firm and thus not an accurate 8
comparator for assessing hourly rates in the district. The 9
court also noted its “familiarity with prevailing rates in 10
this district for attorneys of similar skill, reputation and 11
experience at small firms engaged in civil rights litigation.” 12
Based on all these factors, the court concluded that a 13
reasonable hourly rate for Townsend’s attorneys was $350, 14
rather than the $375 they had requested. The district court 15
thus clearly conducted a careful analysis of comparable hourly 16
rates in the district. The rate of $350 was wholly reasonable 17
and was not an abuse of discretion. 17 Using this rate, the 18
17 It is important to note that the relevant time period in
relation to which the prevailing market rate should be
calculated, for purposes of assessing whether a plaintiff is
entitled to post-Offer fees and costs, is the time at which
the Rule 68 Offer was served on the plaintiff (here 2006),
rather than the time at which the attorney’s fee application
was made (here 2009). There is no indication that the
district court’s analysis was erroneous in this respect. In
examining the rates awarded to other civil litigators in the
district, the court cited awards that took place between 2005

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-42-
amount of pre-Offer fees and costs, in combination with the 1
plaintiff’s ultimate recovery, exceeds the Rule 68 Offer. 2
Thus, the district court was correct to award fees and costs 3
incurred both before and after the Rule 68 Offer. 4
BEI and the Benjamins also argue that the district court 5
should have adjusted the pre-Offer fee award downward for lack 6
of success because of the allegedly low amount of the jury 7
verdict. However, “[a] presumptively correct ‘lodestar’ 8
figure should not be reduced simply because a plaintiff 9
recovered a low damage award.” Cowan v. Prudential Ins. Co. 10
of Am., 935 F.2d 522, 526 (2d Cir. 1991); see also Kassim v. 11
City of Schenectady, 415 F.3d 246, 252 (2d Cir. 2005) (“[W]e 12
have repeatedly rejected the notion that a fee may be reduced 13
merely because the fee would be disproportionate to the 14
financial interest at stake in the litigation.”). Moreover, 15
the district court carefully analyzed the hours for which 16
compensation was sought, reducing those it deemed excessive, 17
and also applied an across-the-board reduction of 15% to the 18
post-Rule 68 Offer fees to reflect the lack of success on 19
Townsend’s constructive discharge claim and to account for 20
some excessiveness in the fee application. It was well within 21
and 2008 and also noted an award to one of Townsend’s
attorneys in 2007. These are not so far in time from the 2006
Rule 68 Offer to suggest that the district court’s analysis
was erroneous.

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-43-
the district court’s discretion to refuse to apply a further 1
downward adjustment to the pre-Offer fee award. 2
We thus affirm the district court’s attorney’s fee award 3
in its entirety. 4
5
CONCLUSION 6
We have considered all of the arguments of the parties. 7
To the extent not specifically addressed above, they are 8
either moot or without merit. For the reasons explained 9
above, we affirm the judgment of the district court. 10

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1
LOHIER, Circuit Judge, concurring: 1
I agree completely with the majority opinion relating to Townsend. I also reluctantly 2
concur in its decision to affirm the dismissal of Grey-Allen’s claim under Title VII of the Civil 3
Rights Act of 1964. I write separately to explain that affirming requires reference to the 4
legislative history of Title VII’s antiretaliation provision because the text is ambiguous. I also 5
write to suggest that Congress should act to clarify Title VII if it desires to prohibit private 6
employers from retaliating against employees merely because they participate in internal 7
investigations of discrimination complaints prior to any involvement by the EEOC. 8
Title VII’s antiretaliation provision, section 704(a), has two distinct clauses forbidding 9
retaliation against employees engaged in protected activity: the opposition clause and the 10
participation clause. The opposition clause makes it “unlawful . . . for an employer to 11
discriminate against any . . . employee[] . . . because he has opposed any practice made unlawful 12
. . . by this subchapter,” while the participation clause makes it unlawful for an employer to 13
discriminate against any employee “because he has made a charge, testified, assisted, or 14
participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 15
U.S.C. § 2000e-3(a). 16
Although there may be some question about whether Grey-Allen “opposed” any unlawful 17
employment practice (a question to which I turn below), she accused her employer of violating 18
only the participation clause. Similarly, on appeal, Grey-Allen’s employer relied solely on its 19
assertion that the participation clause does not apply to internal investigations. There was strong 20
evidence that it fired Grey-Allen for no reason other than that she conducted an effective internal 21
investigation of a sexual harassment claim against a corporate vice-president. I begin, therefore, 22

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1 Title VII is codified as Subchapter VI of Chapter 21 of Title 42 of the United States
Code.
2
with the following question: Does the participation clause allow a private employer to fire a 1
human resources director or EEO officer because she conducted a neutral investigation of an 2
employee’s discrimination claim without involving the EEOC? 3
Congress has never directly confronted the issue of whether private-sector employees 4
who undertake these important investigations are protected from retaliation under the 5
participation clause. The Supreme Court explicitly left open the question of whether the 6
participation clause protects these employees in Crawford v. Metropolitan Government of 7
Nashville & Davidson County, Tennessee, 555 U.S. 271 (2009), even as it answered a similar 8
question in the context of the opposition clause. Ultimately, the statutory text and legislative 9
history of Title VII persuade me that the majority opinion correctly resolved this question in 10
favor of the employer in this case, although I arrive at that conclusion using a different route. 11
I start with the text of the statute. I agree with my colleagues that the phrase 12
“investigation . . . under this subchapter” clearly includes EEOC investigations. I disagree, 13
however, that the phrase, which should be interpreted broadly, unambiguously excludes internal 14
investigations conducted by employers. See EEOC v. Total Sys. Servs., Inc., 240 F.3d 899, 901 15
(11th Cir. 2001) (dissent from denial of rehearing in banc). First, certain provisions of Title VII 16
– the “subchapter” to which the clause refers1 – suggest a role for non-governmental enforcement 17
of the statute. For example, section 705(g)(1) of Title VII authorizes the EEOC to “cooperate 18
with and . . . utilize regional, State, local, and other agencies, both public and private, and 19
individuals.” 42 U.S.C. § 2000e-4(g)(1). Second, other provisions of Title VII expressly limit 20

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3
the term “investigation” to an investigation by the EEOC, indicating that Congress clearly could 1
and did refer solely to EEOC investigations when it intended to do so. See id. § 2000e-5(b) 2
(referring to “investigation by [the] Commission”); id. § 2000e-8(a) (referring to “any 3
investigation of a charge filed under [the EEOC’s enforcement provision] of this title [section 4
706]”); id. § 2000e-9 (referring to “investigations conducted by the Commission or its duly 5
authorized agents or agencies”). As a result, I conclude that the phrase “investigation . . . under 6
this subchapter” is ambiguous, and I proceed to the legislative history to determine what 7
Congress meant by it. See SEC v. Rosenthal, 650 F.3d 156, 161 (2d Cir. 2011). 8
Congress appears to have had only government investigations in mind in 1964. There is 9
no indication in the legislative history of Title VII that Congress meant to include internal 10
investigations by private employers in the participation clause. I recognize that “when it 11
originally enacted Title VII, Congress hoped to encourage employers to comply voluntarily with 12
the act,” EEOC v. Shell Oil Co., 466 U.S. 54, 77 (1984), but Congress does not appear to have 13
embraced internal investigations as a way to do so. It did not once mention internal 14
investigations by private employers in the debates and speeches leading up to the enactment of 15
Title VII or in subsequent major amendments to the statute. This is not surprising since, as the 16
EEOC acknowledged at oral argument, it appears that “there really weren’t” such investigations 17
prior to 1964. Tr. of Oral Arg. at 17:11-19. They also appear not to have been among 18
Congress’s concerns in subsequent major amendments to Title VII in 1972, 1978 and 1991. 19
Instead, it seems that Congress focused on protecting employees who participated in EEOC 20

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2 As originally enacted in 1964, Title VII did not apply to federal employees. “Instead,
employment discrimination claims brought by federal employees were governed by Executive
Orders and agency regulations. In general, a federal agency accused of discrimination would
investigate the claim, conduct a hearing and render a final decision . . . .” Pueschel v. United
States, 369 F.3d 345, 352 (4th Cir. 2004). As Congress was surely well aware in 1964, federal
regulations in place pursuant to Executive Order No. 10590, 20 Fed. Reg. 409 (Jan. 19, 1955),
directed the heads of each federal department or agency to designate an Employment Policy
Officer (later changed to an Equal Employment Opportunity, or “EEO,” Officer), who was
required to conduct prompt internal “investigation[s] of each complaint” “of alleged
discrimination in personnel matters within his department or agency.” 5 C.F.R. §§ 1401.4,
1401.17 (1964); see 5 C.F.R. § 713.204(d)(4) (1968) (designating EEO Officers to investigate
complaints within federal agencies). These internal federal agency investigations continued after
Congress amended Title VII by passing the Equal Employment Opportunity Act of 1972 (the
“EEOA”) to extend its coverage to most federal employees. See 42 U.S.C. § 2000e-16; 117
Cong. Rec. 32,105 (1971); S. Rep. No. 92-415, at 14 (1971), reprinted in Senate Subcommittee
on Labor of the Committee on Labor and Public Welfare, Legislative History of the Equal
Employment Opportunity Act of 1972, at 423 (1972) (“Under present procedures, in most cases,
each [federal] agency is still responsible for investigating . . . itself.”). For these reasons, the
phrase “investigation . . . under this subchapter” appears to include internal investigations of
discrimination conducted by federal agencies through EEO Officers.
4
investigations, other federal-sector investigations,2 or analogous state-sponsored investigations. 1
Without evidence that private-sector internal investigations existed and that Congress considered 2
them at the time it enacted Title VII, I am hard pressed to conclude from the legislative history 3
that Congress intended to include these investigations in the ambit of the participation clause. 4
Even the EEOC’s interpretation of the participation clause, as reflected in its Compliance 5
Manual, is of little help to Grey-Allen. While not entitled to full deference under Chevron, 6
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the manual and 7
other EEOC directives nevertheless “reflect a ‘body of experience and informed judgment to 8
which courts and litigants may properly resort for guidance,’” and are “entitled to a ‘measure of 9
respect’ under the less deferential Skidmore standard.” Fed. Express Corp. v. Holowecki, 552 10
U.S. 389, 399 (2008); see also Crawford, 555 U.S. at 276. Although the EEOC argued as amicus 11

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3 In contrast to the current manual, which does not state that cooperating with internal
investigations is protected by the participation clause, an archived page of the EEOC’s website
cites “[c]ooperating with an internal investigation of alleged discriminatory practices” as an
example of protected activity under the participation clause. Retaliation,
http://archive.eeoc.gov/types/retaliation.html (last modified Mar. 11, 2009). Of course, the
EEOC, like any other agency, is entitled to change its mind and change course. But the
argument that it advances in its amicus brief (an argument that accords with the March 2009
archived website page referenced above) differs from its published, official interpretation of the
participation clause, and it offers no support for its assertion that it has long adopted a more
expansive interpretation of the participation clause. In the absence of a reasoned analysis
explaining why its position differs from that set out in the Compliance Manual, the EEOC’s new
argument is “‘entitled to considerably less deference’ than a consistently held agency view.”
Am. Fed’n of State, Cnty. & Mun. Emps. v. Am. Int’l Grp., Inc., 462 F.3d 121, 129 (2d Cir.
2006) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994)).
5
on appeal that it has long regarded internal investigations as covered by the participation clause, 1
see Br. of EEOC as Amicus Curiae in Supp. of Appellant Grey-Allen 19, the EEOC’s 2
Compliance Manual does not state that the participation clause covers activity undertaken in the 3
course of an internal investigation by an employer. The manual’s guidance about whether an 4
individual is protected under the participation clause does not mention internal investigations, 5
referring instead to “individuals [who] challeng[e] employment discrimination under the statutes 6
enforced by EEOC in EEOC proceedings, in state administrative or court proceedings, as well as 7
in federal court proceedings, and to individuals who testify or otherwise participate in such 8
proceedings.” 2 EEOC Compliance Manual § 8-II-C, p. 614.0005 (May 1998); see id. § 2-II-A, 9
p. 605.0005 (2008) (referring the reader to the 1998 EEOC Compliance Manual for more 10
detailed guidance on protected activity).3 To be sure, the manual states that “[p]rotected activity 11
[under section 704(a)] . . . includes . . . presenting evidence as part of an internal investigation 12
pertaining to an alleged EEO violation.” Id. § 2-II-A, p. 605.0005. But it justifies its 13
interpretation by reference to the opposition clause rather than the participation clause. See id. 14
n.41. 15

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6
For these reasons, I am compelled to agree with the decision to affirm the judgment of 1
the District Court. As a policy matter, however, the distinction between investigations in which 2
the government is involved and internal investigations strikes me as antiquated and arbitrary. 3
The facts of this case starkly illustrate the arbitrariness. Had Grey-Allen conducted her 4
investigation under the auspices of a government agency such as the EEOC, her actions would 5
have been protected under the participation clause. But because she conducted the same internal 6
investigation without EEOC involvement, her actions are not protected. 7
Changes in the last decade to the enforcement and interpretation of Title VII underscore 8
the wisdom of eliminating this distinction and protecting employees who participate in private- 9
sector internal investigations. In particular, Faragher v. Boca Raton, 524 U.S. 775 (1998), and 10
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), represent a significant shift in the 11
Title VII landscape, and the changes wrought by both cases are now woven into governmental 12
and corporate equal employment opportunity practices. Internal investigations form an integral 13
part of Title VII today, with or without the formal involvement of the EEOC – so much so that 14
the Supreme Court has interpreted Title VII broadly to avoid “undermin[ing] the 15
Ellerth-Faragher scheme, along with the statute’s ‘primary objective’ of ‘avoid[ing] harm’ to 16
employees.” Crawford, 555 U.S. at 279 (emphasis added) (quoting Faragher, 524 U.S. at 806). 17
I recognize that the conclusion that the majority and I draw from the text, legislative 18
history, and agency interpretations of Title VII is in tension with these recent developments and 19
with the principle that, when reviewing Title VII, we should broadly interpret the phrase “under 20
this subchapter.” See Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 868 (2011) (“Title 21
VII’s antiretaliation provision must be construed to cover a broad range of employer conduct.”). 22
But it is up to Congress, now accustomed to the centrality of internal investigations in the 23

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7
employment context as a result of these developments, to consider the issue. Congress is best 1
placed to fill this statutory gap between the text and history of the participation clause on the one 2
hand, and Title VII’s broad antiretaliation goals on the other hand. It may decide to do so by 3
clarifying that the participation clause prohibits private employers from firing their human 4
resources directors and EEO officers simply because they have conducted an internal 5
investigation of, say, a sexual harassment complaint. 6
I have two final observations. First, in agreeing that Grey-Allen was not protected from 7
retaliation under the participation clause as Congress conceived it in 1964, the majority and I 8
take some solace in the possibility that, after Crawford, employees in Grey-Allen’s position will 9
be protected by the opposition clause. That remains to be decided; whether a human resources 10
director who neutrally investigates a claim of discrimination nevertheless can be said to 11
“oppose” a discriminatory practice is an open question in this Circuit. Second, when Congress 12
enacted Title VII, it was aware of the existence of state agencies like the New York State 13
Division of Human Rights (“NYSDHR”), and it authorized the newly created EEOC “to 14
cooperate with and . . . utilize regional, State, local, and other agencies.” 42 U.S.C. § 2000e- 15
4(g)(1); see United States Equal Employment Opportunity Commission, Legislative History of 16
Titles VII and XI of Civil Rights Act of 1964, 3044-45 (1968) (interpretative memorandum 17
introduced into congressional record by Senators Clark and Case, the Senate floor managers for 18
Title VII). Moreover, it contemplated that the EEOC and, by extension, analogous state agencies 19
would provide “technical assistance” to employers who requested it to “further their compliance 20
with” Title VII. 42 U.S.C. § 2000e-4(g)(3). In this case, Grey-Allen sought and received advice 21
from the NYSDHR on proceeding with the sexual harassment investigation. In my view, 22
involving a state agency such as the NYSDHR was enough to transform the internal 23

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8
investigation into an “investigation . . . under this subchapter.” 42 U.S.C. § 2000e-3(a). The 1
majority opinion does not suggest anything to the contrary. Grey-Allen, however, never 2
advanced this argument before the District Court, and she therefore forfeited it. See Local 377, 3
RWDSU, UFCW v. 1864 Tenants Ass’n, 533 F.3d 98, 99 (2d Cir. 2008) (finding an argument 4
not raised before the district court forfeited on appeal); Tr. of Oral Arg. at 5:6-24, 8:12-20, 5
21:12-22:3. Even with these two possible forms of protection, however, Congress should clarify 6
whether the kind of investigation Grey-Allen conducted falls within the protective sweep of the 7
participation clause. 8

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