Elliot J.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Apr 25, 2019

0120171366 (E.E.O.C. Apr. 25, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Elliot J.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce,
Agency.

Appeal No. 0120171366

Agency No. 63201300189

DECISION

On March 3, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
January 31, 2017, final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issues presented are whether the EEOC Administrative Judge (AJ) erred in determining the
appropriate amount of attorney’s fees and costs to which Complainant was entitled.

BACKGROUND

Complainant worked as a Demographer, GS-1530-13, with the Agency’s Local Government
Estimates and Migration Branch, Population Division. Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the bases of disability and in retaliation for
requesting a reasonable accommodation when: (1) he was ordered to report to work on an approved
telework day; (2) he was required to use a messaging system while teleworking and other

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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employees were not required to do the same; (3) he was removed as a Team Lead on an assignment
without explanation; (4) while he used the reclining accommodation workstation, his supervisor
frequently grabbed him by the leg and foot making him feel uncomfortable; (5) his projects were
sabotaged and he was blamed for the mistakes of others; (6) he was overloaded with work without
guidance; (7) he was repeatedly advised not to go outside of his chain of command without going
through his supervisor first; (8) other employees were rewarded for things he was criticized for;
(9) he was subjected to verbal affronts and inappropriate comments in front of other employees;
(10) he received a downgrade in his performance review; (11) despite being medically approved
for telework, he was advised that he needed to report to Washington DC for six days because he
could not perform the essential functions of his position on those days while teleworking; and (12)
the Agency continuously challenged and unnecessarily delayed his requested accommodations,
amounting to a denial.

After an investigation, Complainant requested a hearing before an AJ. On January 8, 2015, the
parties entered into a settlement agreement. The agreement stated in relevant part that
Complainant was to file a fee petition for attorney’s fees and costs for all claims associated with
the matter. The Agency was required to file a response, and the parties agreed that the AJ would
determine “reasonable” attorneys’ fees and costs in accordance with all applicable laws.
Complainant submitted a fee petition on March 9, 2015 seeking $79,333.50 in attorney’s fees, and
costs of $683.53. On April 9, 2015, the Agency submitted a response arguing that the attorney’s
fees and costs should be reduced by 50 percent because the amounts billed were excessive. On
April 15, 2015, Complainant submitted a reply, and requested $2631.50 in fees to prepare the
reply.

On December 21, 2016, the AJ issued a decision on attorney’s fees and costs. The AJ concurred
with the Agency that the number of hours stated in the fee petition was excessive, reducing the
total hours by 33 percent. The AJ ordered the Agency to pay Complainant’s attorney fees in the
amount of $53,153. The AJ did not reduce the costs award, and therefore the Agency was ordered
to pay Complainant $683.53 in costs. The AJ declined to award Complainant fees with respect to
the reply brief, reasoning that the settlement agreement specifically set forth the procedures for
payment of attorney’s fees provided only for a fee petition and a response by the Agency not a
reply brief.

The Agency issued a final order adopting the AJ’s decision on January 31, 2017.

Complainant subsequently filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the 33 percent across-the-board reduction the AJ applied to
the amount of attorney’s fees requested in the fee petition was excessive, arbitrary and capricious.
Complainant reasons that the reduction constitutes an abuse of discretion and error as a matter of
law.
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Complainant states that the AJ failed to adequately consider the record and relied on
misrepresentations of the record by the Agency which caused the across the board reduction of
33%. In response, the Agency asks that the Commission deny the appeal and uphold the AJ’s
award. The Agency contends that the AJ did not err as a matter of law or abuse his discretion in
applying the across the board reduction of 33%. The Agency states that the evidence supports the
AJs finding that the fees sought by Complainant were excessive and unreasonable.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

ANALYSIS AND FINDINGS

Attorney’s Fees

An 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. 29 C.F.R. § 1614.501(e); Bernard
v. Dep’t of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). Attorney’s fees are
computed by determining the lodestar, i.e., the number of hours reasonably expended multiplied
by a reasonable hourly rate. 29 C.F.R. § 16l4.501(e)(2)(ii)(B); EEO Management Directive for 29
C.F.R. Part 1614 (MD-110) at 11-5 (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). All
hours reasonably spent in processing the complaint are compensable, and the number of hours
should not include excessive, redundant or otherwise unnecessary hours. MD-110 al 11-5 (citing
Hensley, 461 U.S. at 434; and Bernard, EEOC Appeal No. 01966861). The presence of multiple
counsel at a hearing may be considered duplicative in certain situations, such as where one or more
counsel had little or no participation. MD-110 at 11-5 (citing Hodge v. Dep’t of Transportation,
EEOC Request No. 05920057 (Apr. 23, 1992)). 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 (citing Cooley v. Dep’t of Veterans Affairs, EEOC Request No. 05960748 (July 30,
1998)).

Excessive Billing

All hours reasonably spent in processing the complaint are compensable, but the number of hours
should not include excessive, redundant or otherwise unnecessary hours. EEOC MD-110 at 11-15.

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The Commission has ruled that, when reviewing fee petitions which contain many excessive,
redundant, unnecessary or inadequately documented expenditures of time, in lieu of engaging in a
line-by-line analysis of each charge claimed, the Commission may calculate the number of hours
compensable by applying an across-the-board reduction to the number of hours requested. See
Bernard v. Dep’t of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998).

After careful review of Complainant’s Counsels’ fee petition, we find that Complainant has not
established that the amount awarded by the AJ was inappropriate. Like the AJ, we find several
billing entries were excessive. The fee petition billed a total of 276 hours of claimed attorney and
paralegal time. The petition stated that 27.1 hours were spent in settlement negotiations, and that
26.2 hours were spent preparing for these negotiations. We find that the number of hours, and
resources utilized were excessive and unreasonable, especially in a case that did not proceed to a
hearing, and where the AJ did not even issue an Acknowledgement Order, nor was discovery
conducted, motions filed, depositions taken nor did any other form of litigation take place. We
find that many hourly billing entries were duplicative, particularly the 40 hours attorneys spent
“conferring on the case.” Entries were submitted for multiple attorneys working on the case, when
the activities billed were individual tasks. Additionally, the petition contained billing for nine
attorneys and four paralegals. We find that the use of 13 legal professionals, for this case, lead to
excessive billing and was unnecessary for a matter that resulted in a resolution through settlement
negotiations. See Toy v. Dep’t of Homeland Sec., EEOC Appeal No. 07A20122 (Sep. 29, 2004).

CONCLUSION

After a careful review of the record in its entirety, including consideration of all statements
submitted on appeal, it is the decision of the Commission to AFFIRM the Agency’s final order
implementing the AJ’s determination regarding attorney’s fees and costs. We conclude that the
AJ’s award of fees, in the amount of $53,153.00, and $683.53 in costs and expenses for a total of
$53,836.53, was appropriate.
ORDER

The Agency, to the extent that it has not already done so, is ORDERED to take the following
remedial action within one hundred twenty (120) calendar days of the date this decision is issued:

The Agency shall tender to Complainant a check in the amount of $53,836.53.

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 (K0618)

Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
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in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.

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 (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 25, 2019
Date