01A05403
10-16-2002
Bennett A. Southerland, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bennett A. Southerland v. United States Postal Service
01A05403
10-16-02
.
Bennett A. Southerland,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05403
Agency No. 2G-1064-91
DECISION ON ATTORNEYS FEES
In Southerland v. United States Postal Service, EEOC Appeal No. 01960247
(June 11, 1998), request for reconsideration denied EEOC Request
No. 05980945 (April 11, 2000), the Commission concluded that the
agency failed to accommodate complainant's disability and that it had
discriminated against him on the basis of race by terminating him from
his position as a letter carrier on September 14, 1990. Pursuant to
that decision, and in accordance with 29 C.F.R. � 1614.501(e), counsel
submitted to the agency a petition for fees. On July 14, 2000, the agency
issued a final decision on the attorneys fees question, and found that
counsel was entitled to fees in the amount of $24,292. Counsel appealed,
contending that she was entitled to $90,450 in fees and $500 in costs.
This appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Title VII authorizes the award of reasonable attorneys' fees. 29 C.F.R. �
1614.501(e).<1> The starting point in calculating attorneys fees shall
be the number of hours reasonably expended multiplied by a reasonable
hourly rate. 29 C.F.R. � 1614.501(e)(2)(ii)(B). In this case, counsel
requested compensation for 351.8 hours of work a an hourly rate of $250.
In arriving at its determination that counsel was entitled only to
$24,292.00 in fees, the agency disallowed the following items:
15.2 hours disallowed for excessive telephone calls that counsel made
between 1991 and 1995.
37.41 hours disallowed for what the agency characterized as unreasonably
excessive legal research.
28.10 hours disallowed for a brief that counsel prepared between March
25th and March 28th, 1992, which addressed a claim on which complainant
did not prevail.
1.5 hours disallowed for time spent preparing two letters giving notice
of change of address.
12 hours disallowed for excessive travel time.
3.2 hours disallowed for work on fee petition.
In addition to making these specific deductions, the agency reduced
the number of hours claimed in 1992 and 1993 by fifty percent
across-the-board. It then reduced counsel's hourly rate and made its
fee determinations as follows:
Year # hours Rate Total Fees
1991 74.7 $130 $9,711.00
1992 46.4 $140 $6,496.00
1993 06.9 $140 $966.00
1994 04.2 $160 $672.00
1995 25.0 $160 $4,000.00
1996-99 09.0 $160 $1,440.50
2000 06.1 $165 $1,006.50 $24,292.00
On appeal, counsel challenges these determinations. She also seeks
compensation for travel expenses in the amount of $500, as well as
compensation for an additional 10 hours for work done in connection
with the instant appeal, which brings the total number of hours that she
claimed up to 361.8. In general, it is counsel's burden to prove, by
specific evidence, her entitlement to her claimed fees and costs. Donald
v. Department of Labor, EEOC Appeal No.01943425 (August 31, 1995),
request for reconsideration denied EEOC Request No. 05960049 (February
20, 1998). See also Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1983).
Hours
Telephone Calls
The agency disallowed 15.2 hours representing what it characterized as
numerous telephone calls to complainant by counsel. In many instances
counsel made multiple calls within the space of several days, or
made more than one call on the same day. Due to the brevity of
the fee petition, the agency was unable to determine the purpose of
the calls. Complainant's petition does not provide an explanation
for any of the calls. A review of the petition indicates that most
of the calls disallowed were the second or third call that counsel
made to complainant on a particular day. For example, on August 15,
1991, counsel made two calls to complainant. Appeal Brief (AB), Tab C,
p. 1. The agency disallowed the second call, on the grounds that it was
excessive. The agency had done the same with many of the second or third
calls that counsel made to complainant within particular time frames.
In her appeal brief, counsel provided reasonably detailed explanations
for only 6.4 hours of those telephone calls. We will therefore affirm
the agency's disallowance of the remaining 8.8 hours due to the lack of
a sufficient explanation therefor.
Legal Research
The agency disallowed 37.41 hours claimed in connection with legal
research apparently because it considered counsel to be an expert
on employment discrimination law. However, each case presents unique
factual scenarios. Like all attorneys, counsel needed to educate herself
about the particular circumstances of her client's situation. In light
of the fact that the matter at issue involved a psychiatric disability,
and had taken nearly nine years to resolve, 37 hours for legal research
is not unreasonable. A review of the fee petition indicates that
counsel did expend many hours conducting research. While she could
have described the research performed more precisely than she did, it
is readily apparent from a review of the various documents in the file
what the subject of the research was. We therefore find that counsel
satisfied her burden of proving entitlement to 37.41 hours for legal
research, and that the agency erred in disallowing those hours.
The March 1992 Brief
The agency disallowed 28.10 hours that counsel claimed in connection
with the preparation a brief between March 25th and March 28th
1992. According to the agency, this brief was on an unsuccessful claim.
Counsel responded that the successful and unsuccessful claims were
inextricably intertwined. We disagree. There were, in fact, two
complaints that were being processed between 1991 and 1994: Complaint
No. 2G-1199-2, and Complaint No. 2G-1064-91, the instant complaint.
As previously noted, the issue in Complaint No. 2G-1064-91, on which
complainant eventually prevailed on the merits, was whether the agency
discriminated against complainant by terminating him on September 14,
1990. The issue in Complaint No. 2G-1199-2 was whether the agency
discriminated against complainant by removing him from the rolls in
October 1990, while Complaint No. 2G-1064-91 was still pending. Although
they are related, the two issues are clearly distinct. Southerland
v. United States Postal Service, EEOC Appeal No. 01924583 (May 12, 1992),
p. 3. The agency unsuccessfully tried to dismiss Complaint No. 2G-1199-2
on procedural grounds, but later prevailed on the merits with a finding
of no discrimination. Southerland v. United States Postal Service,
EEOC Appeal No. 01924583 (March 31, 1993), request to reconsider denied
EEOC Request No. 05930714 (July 15, 1994). The fee petition indicates
that counsel was preparing a brief to the Commission between March
25th and March 28th, 1992. She did not specify in the fee petition
whether the brief related to Complaint No. 2G-1199-2 or 2G-1064-91.
The fact that the Commission's initial decision on No. 2G-1199-2 was
issued less than two months later leads us to believe that counsel was
appealing the agency's procedural dismissal of Complaint No. 2G-1199-2.
In light of counsel's failure to demonstrate otherwise, we find that the
agency properly disallowed the 28.10 hours that counsel claimed for work
done on a claim that was ultimately unsuccessful.
Change-of-Address Letters
The agency disallowed 1.5 hours for preparing two letters indicating
complainant's change of address letters. The agency stated that this
was complainant's responsibility and not a cost to be deferred to the
agency. We agree that this is an unreasonable expense and accordingly,
we affirm the agency's disallowance of it.
Travel - December 2nd and 4th, 1991
The agency disallowed 12 hours for travel on December 2, 1991, on the
ground that there was no documentation or explanation for the hours
claimed. Counsel responded that she traveled to North Carolina on
December 2, 1991, in order to prepare witnesses and present the case
before an administrative judge. The entry in counsel's fee petition
indicates that on December 2, 1991, counsel not only traveled, but also
met with complainant and with two witnesses. The petition also includes
an entry indicating that on December 4, 1991, counsel attended a hearing
and traveled home to Philadelphia, for which she also claimed 12 hours.
AB, Tab C, p. 5. This is sufficient to document that counsel expended 24
hours on those two days. We note, however, that counsel failed to specify
what portion of those 24 hours was spent traveling and what portion was
actually devoted to legal work. This is important because attorneys
are generally compensated for travel at 50 percent of their normal
hourly rate. Black v. Department of the Army, EEOC Request No. 05960390
(December 9, 1998). Travel not only includes the plane ride, but also
getting to the airport, checking in, waiting at the airport to board
the plane, collecting baggage upon arrival, and getting to the hotel.
In light of counsel's failure to specify the number of hours she spent
traveling, we will assume that 10 hours is a reasonable amount of time for
her to have made the round trip between Philadelphia and North Carolina.
Accordingly, we will direct the agency to award her 10 hours for travel
at half of her hourly rate, the determination of which will be discussed
below.
Fee Petition
Fees incurred from work on attorneys fee petitions should be based on what
is reasonable under the circumstances. Black v. Department of the Army,
EEOC Request No. 05960390, supra. Counsel claimed 6.5 hours for work on
preparing her fee petition, of which the agency allowed only 3.3 hours.
This case took nine ten years to resolve, and had been appealed to
the Commission three times between 1992 and 2000. Moreover, Complaint
No. 2G-1064-91 raised extremely difficult factual issues pertaining to
psychiatric disabilities. Under these circumstances, a mere 6.5 hours
spent in preparing a fee petition is not that unreasonable. Accordingly,
we find that the agency erred in disallowing 3.2 of the 6.5 hours that
counsel spent preparing her fee petition.
Appeal
Finally, counsel argues on appeal that she is entitled to 10 hours
for time spent in preparing her appeal brief. However, she has not
submitted any documentation of her request. Rather than disallow the
entire amount, we will therefore award her 5 hours for preparation of
her appeal brief. We believe that 5 hours is a reasonable amount of
time to prepare an appeal.
50% Reduction of the Number of Hours Claimed in 1992 and 1993
The agency indicated that it reduced the number of hours that counsel
claimed in 1992 and 1993, due to the fact that she was working on
Complaint No. 2G-1199-2 during that time frame, and that complainant
did not prevail on that complaint. See infra. There is a strong
presumption that the number of hours reasonably expended multiplied
by a reasonable hourly rate (lodestar) represents a reasonable fee,
but this amount may be reduced or increased in consideration of the
degree of success, quality of representation, and long delay caused
by the agency. 29 C.F.R. � 1614.501(e)(2)(ii)(B). The circumstances
under which the lodestar may be adjusted are extremely limited, and are
set forth in EEO Management Directive 110 (November 9, 1999). A fee
award may be reduced: in cases of limited success; where the quality
of representation was poor; the attorney's conduct resulted in undue
delay or obstruction of the process; or where settlement likely could
have been reached much earlier, but for the attorney's conduct. MD110,
at p. 11-7. The party seeking to adjust the lodestar, either up or down,
has the burden of justifying the deviation. Id. at p. 11-8.
The case of Williams v. Department of Veterans Affairs, EEOC Appeal
No. 01984753 (July 6, 2001), illustrates the concept of limited success.
While not precedential, Williams does reflect the Commission's policy
on fee awards in situations in which complainant prevails on only one
of several claims. In Williams, the Commission upheld the agency's
decision to reduce the attorneys' gross fee awards by 50 percent
because the attorneys expended over half of their claimed hours on the
unsuccessful claim. In that case, the hours spent on each claim in the
complaint were sufficiently documented that the number of hours spent
on the successful and unsuccessful claims could be readily ascertained.
In this case, we disagree with counsel's assertion that there was a core
of facts common to both complaints. As we previously noted, there are a
number of appellate decisions on both complaints which clearly establish
that they were separate and distinct. Consequently, in her fee petition,
counsel could have identified those services rendered between 1992 and
1993 which pertained to the successful claim and those which pertained
to the unsuccessful claim. She did not do so. In the absence of such
clear distinctions, the agency's decision to allocate 50 percent of
the claimed hours to the successful claim was entirely reasonable under
the circumstances. However, the agency failed to specify the number of
hours that it disallowed, forcing us to do so here. Our review of the
fee petition indicates that counsel claimed a total of 181.8 hours for
services rendered in 1992 and 1993, including the 28.1 hours for preparing
the brief in connection with the appeal of Complaint No. 2G-1199-2.
Since we have already authorized the agency to deduct those 28.1 hours,
we are left with 151.7 (181.8 less 28.1). Reducing this figure by 50%,
we arrive at 75.85 hours for work done on the unsuccessful claim between
1992 and 1993. We must then add the 28.1 hours disallowed for the March
1992 appeal brief on Complaint No. 2G-1199-2. When we do so, we arrive at
total disallowance of 103.95 hours expended toward the unsuccessful claim.
Calculation - Number of Hours
Total Hours Claimed: 361.8
Less Hours Claimed for: Telephone Calls (8.8)
Unsuccessful Claim (103.95)
Address Change (1.5)
Appeal (5.0)
Total Hours Disallowed: (119.25)
Total Hours Allowed: 242.55
Of these hours, 232.55 will be allocated toward legal work and the
remaining 10 hours will be allocated to travel.
Hourly Rate
For Legal Work
Reasonable hourly rates are measured by the prevailing market rates
in the relevant community Blum v. Stenson, 465 U.S. 886, 895 (1984);
Brent v. Department of the Air Force, EEOC Request No. 05901175 (January
8, 1991). This dispute raises two issues, the first of which is whether
Philadelphia, Pennsylvania, or Greensboro, North Carolina, is the relevant
community for the purposes of determining the prevailing market rate.
Counsel claims that she is entitled to be paid at the rate of $250,
as that is the prevailing rate in Philadelphia, where she is located.
The agency responds that counsel should be paid at the rate charged by
attorneys in Greensboro, North Carolina, as that is where the case was
heard and where complainant was located. That rate rose from $130 in
1991 to $165 in 2000.
If a party does not find counsel readily available in that locality with
whatever degree of skill may reasonably be required, it is reasonable that
the party go elsewhere to find an attorney. Chrapliwy v. Uniroyal, Inc.,
670 F.2d 760, 769 (7th Cir. 1982). On the other hand, if a high-priced,
out-of-town attorney renders services which local attorneys could do as
well, and there is no other reason to have them performed by the former,
then it may be appropriate to allow only the hourly rate which local
attorneys charged for the same service. Id. at 768; Maceira v. Pagan,
698 F.2d 38, 40 (1st Cir. 1983).
The burden is on the agency to show that complainant's decision to
retain out-of-town counsel was unreasonable. See Id. (The Local has
not shown that plaintiff's decision to retain [out-of-town counsel]
was unreasonable). In this case, the agency has presented extensive
documentation of the availability of local counsel. Among the documents
submitted by the agency are: fee petitions, billing records, affidavits,
and disbursement records. Agency Response to Appeal (AR), Ex. 1. These
documents show that this local attorney was highly skilled and experienced
at representing federal employees in employment discrimination cases,
particularly postal workers, before the Commission and the Merit Systems
Protection Board. This individual's skill and experience is comparable
to counsel's. We note that the Greensboro attorney won a case involving
disability discrimination, which was at issue in complainant's case. AR,
Ex. P, p. 7. While counsel is, without a doubt, a highly skilled and
capable professional, she has not shown that she has a unique specialty
within the field of employment discrimination that complainant needed
to utilize but was not available to complainant in North Carolina. We
therefore find that the agency presented sufficient evidence to support
a finding that the local rate in Greensboro, North Carolina should be
considered as counsel's hourly rate. This brings us to the second issue,
namely what the hourly rate should be.
We noted the agency's assertion that the hourly rate for attorneys
handling employment discrimination cases rose from $130 to $165 between
1991 and 2000. We also noted that, in calculating counsel's fees,
the agency applied the rate for a particular year to the hours that
counsel expended during that year. For example, for 1991, the agency
awarded counsel $9,711 for 74.7 hours at the hourly rate of $130.
The agency did the same thing for hours worked in 1992, 1993, 1994,
1995, and 1996-1999, and 2000. This approach is incorrect. In order to
ensure that counsel is not deprived of the value of her fees owing to a
delay in the resolution of a case, the Commission follows the practice of
awarding fees at current, rather than historical hourly rates for all work
performed on a complaint. Huyck v. Department of Defense, EEOC Appeal
No. 01952015 (October 31, 1997): request for reconsideration denied EEOC
Request No. 05980159 (July 10, 1998). In this case, the agency stated
in its final decision on attorneys fees that the final adjudication of
this case took place on April 11, 2000, when the Commission denied the
agency's request for reconsideration of complainant's appeal. Since the
hourly rate in North Carolina was $165 at that time, counsel's fees will
be awarded based on this rate.
For Travel
As previously discussed, this decision directs the agency to
award complainant 10 hours of time for travel between Philadelphia,
Pennsylvania, and North Carolina on December 2nd and 4th, 1991. The rate
for those 10 hours of travel time will be half of $165, or $82.50.
Costs
Counsel also requested an additional $500 for travel expenses.
The agency disallowed this request on the grounds that the record
was void of any documentation, receipts, or explanation for travel
costs. Counsel responded on appeal that she misplaced the receipts
that she had. Generally, an attorney can be reimbursed for air fare,
hotel accommodations, meals, and car rentals, but must produce adequate
documentation of the expense incurred and the nature of the expense.
Mathis v. ACTION, EEOC Appeal No. 01901575 (April 2, 1990), request
to reopen denied EEOC Request No. 05900681 (April 2, 1990); Canady
v. Department of the Army, EEOC Request No. 05890226 (December 27, 1989).
The entries in counsel's fee petition corresponding to December 2nd and
4th, 1991, clearly establish that counsel did travel on those dates, and
consequently incurred expenses for air travel and two nights of lodging
at a hotel. She also presumably incurred charges for meals, since it is
unreasonable to expect that she did not eat for two days. It can also
be presumed that she incurred transportation expenses in getting to and
from the airports in Philadelphia and North Carolina. Taken together,
these expenses probably exceeded $500. Given the passage of nine years,
it is likely that a reasonable person in counsel's position might well
have misplaced those receipts. We believe that $500 is a good-faith
estimate of what counsel's travel expenses were. Therefore due to the
unique circumstances of this case, and in exercise of our discretion
in awarding equitable remedies, we will permit counsel to recoup these
expenses and award her $500 for reimbursement of travel costs incurred
in December 1991. We would admonish counsel, however, to be more careful
next time.
Calculation
Fees for Legal Work: 232.55 hours @ $165/hour = $38,370.75
Fees for Travel: 10 hours @ $82.50/hour = $825.00
Travel Costs - December 1991: $500.00
Total Attorneys Fee Award: $39,695.75
ORDER
If the agency has not yet awarded counsel attorneys fees and costs,
it shall issue a check to counsel in the amount of $39,695.75.
Alternatively, if the agency has already awarded complainant the
undisputed amount of attorneys fees and costs, it shall issue a check
to complainant in the amount of $15,403.75.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the
paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___10-16-02_______________
Date
1The agency does not dispute the fact that
complainant is a prevailing party. See Buckhannon Bd. and Care Home,
Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598
(2001).