01A23817
11-14-2003
Caldonia Rivers, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Caldonia Rivers v. Department of the Treasury
01A23817
November 14, 2003
.
Caldonia Rivers,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A23817
Agency Nos. 96-2306; 97-2034
Hearing Nos. 360-97-8175X; 360-97-8176X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) awarding additional attorney fees to complainant's counsel for his
work in the above-cited cases before the Equal Employment Opportunity
Commission (�the Commission�). The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
BACKGROUND
The record indicates that complainant filed two formal complaints
against the agency, alleging discrimination based on race (Black),
age (D.O.B. 7/22/52), disability and reprisal for prior EEO activity.
Following the investigation of her complaints, complainant requested
a formal hearing before a Commission Administrative Judge (AJ).
Prior to the hearing, the record indicates that the parties entered
into a Settlement Agreement (SA) dated October 21, 1997. The SA stated
that the agency: (1) would pay complainant $16,297.75 to compensate
her for medical care expenses; (2) would pay complainant $25,000.00
for attorney's fees and costs; and (3) would pay complainant proven
compensatory damages. Based on the SA, the agency subsequently issued
a final decision (FAD I) which awarded complainant compensatory damages
in the amount of $49,699.95, plus back pay for lost leave and pay for
future wages. Complainant subsequently appealed FAD I, stating that
the amount of compensatory damages was inadequate. On January 16, 2002,
the Commission issued a decision modifying FAD I, and determining that
in addition to the amounts awarded in the final decision, complainant
was entitled to $13,000.00 for future medical expenses, $2,600.00 for
future prescription costs, and $115,000.00 in non-pecuniary damages.
The agency did not request reconsideration. Complainant then submitted a
notice to the Commission, alleging that the agency was not in compliance
with the Commission's January 16, 2002 decision. The agency addressed
that part of complainant's notice which stated that complainant had not
received an adequate amount for attorney's fees.
In its subsequent final agency decision dated June 3, 2002 (FAD II), the
agency stated that complainant was entitled to an additional $27,411.00
for work performed in conjunction with the appeal filed on FAD I,
dealing with compensatory damages. FAD II noted that in compliance
with the earlier SA, the agency had already paid complainant $25,000.00
for attorney fees and costs. In finding that complainant's counsel was
entitled to an additional fee, FAD II found that complainant's counsel
was entitled to an additional award of attorney's fees in addition
to the award already provided for in the SA as complainant received
an increased damages award based on the appeal of the agency's FAD I.
Addressing counsel's specific requests for additional fees, the agency
stated in FAD II that it did not dispute the claimed hourly rate for
counsel or his associates, and found the rate reasonable based on the
prevailing rate in the Austin, Texas, community. Addressing the number
of hours submitted by counsel, the agency determined that a significant
number of the claimed billable hours were not connected with the appeal
of the final agency decision, and thus were not permissible. The agency
stated that rather than perform a line by line analysis of the request for
attorney fees, a 25% across-the-board reduction of hours from the period
of January 27, 1999 to February 15, 2002 was justified. In addition,
the agency also disallowed several claimed expenses submitted by counsel,
stating that there were no time frames stated by counsel and thus it was
impossible to determine whether these costs were incurred in the appeal
of FAD I.
Complainant's counsel appealed the agency's final decision, alleging that
FAD II improperly reduced the requested fee by 25% across-the-board.
Counsel alleges that with only one exception, the billings which the
agency disallowed were in fact connected with the time period between
January 1999 and February 2002. In addition, counsel alleges that
the 25% reduction in the requested fee is arbitrary, and further,
that adding up the reductions specifically identified by the agency,
the subtraction of fees would be about $3,000.000, far less than the
$9,121.50 reduction determined by FAD II's across-the-board reduction.
ANALYSIS AND FINDINGS
The agency is required to award attorney's fees for the successful
processing of an EEO complaint in accordance with existing case law and
regulatory standards. Attorney's fees are computed by
determining the lodestar, i.e., the number of hours reasonably expending
multiplied by a reasonable hourly rate. See Bernard v. Department of
Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998) (citing Blum
v. Stenson, 465 U.S. 886 (1984)); 29 C.F.R. 1614.501. All hours reasonably
spent in processing the complaint are compensable, but the number of
hours should not include excessive, redundant or otherwise unnecessary
hours. Equal Employment Opportunity Commission Management Directive 110
(MD-110) (November 1999) at 11-5. A reasonable hourly rate is based on
prevailing market rates in the relevant community for attorneys of similar
experience in similar cases. MD-110 at 11-6. An application for attorney's
fees must include a verified statement of attorney's fees accompanied by
an affidavit executed by the attorney of record itemizing the attorney's
charges for legal services. MD-110 at 11-9. While the attorney is not
required to record in great detail the manner in which each minute of
his time was expended, the attorney does have the burden of identifying
the subject matters on which he spent his time by submitted sufficiently
detailed and contemporaneous time records to ensure that the time spent
was accurately recorded. See Spencer v. Department of the Treasury,
EEOC Appeal No. 07A10035 (May 6, 2003).
The agency contends that the number of hours claimed to have been expended
by complainant's counsel on the appeal of the instant case are excessive
and unnecessary, making a fee adjustment appropriate. After a review of
the record, the Commission agrees with the agency's assertion that many
entries in counsel's submission for additional fees and costs are for
services rendered to complainant for which he was already paid pursuant to
the terms of the SA. In their current petition for additional fees beyond
those awarded in the SA, we find that counsel has included duplicative
and unnecessary entries for work performed in furtherance of the initial
finding of discrimination by the agency, and unrelated to the appeal of
FAD I. We find that the agency has already compensated counsel for time
spent on the initial findings of discrimination and compensatory damages.
Furthermore, we concur with the agency's contention that several of the
entries in counsel's petition for supplemental fees are unclear as to
the exact work performed, and thus we cannot state with certainty that
counsel should be compensated for that time. Finally, we concur with the
agency that counsel has failed to demonstrate that 100% of the fees sought
in counsel's supplemental fee petition should be paid by the agency.
When a fee reduction becomes necessary based on excessive hours, the
Commission need not "perform a detailed analysis to determine precisely
the number of hours or types of work for which no compensation is
allowed; rather, it is appropriate to reduce the hours claimed by
an across-the-board reduction." See Bernard, EEOC Appeal No. 01966861
(quoting Finch v. United States Postal Service, EEOC Request No. 05880051
(July 15, 1988)). Our review of the record
in this case indicates that such an across-the-board reduction of
complainant's counsel's hours by 25% is reasonable in this case. We thus
concur with the agency's award in FAD II of an additional $27,411.00
for complainant's counsel. The total fee paid to counsel of $52,411.00
for their services rendered in the instant case is reasonable and in
accordance with existing case law and regulatory standards.
Accordingly, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
award of attorney fees. We direct the agency to take action consistent
with the Order below.
ORDER
The agency is ordered to take the following remedial action:
(1) To the extent the agency has not already done so, the agency shall
pay complainant $27,411.00 in attorney's fees and costs.
(2) 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 evidence that the remedial 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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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
November 14, 2003
__________________
Date