01964602
11-25-1998
Eric A. Shrader, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Eric A. Shrader v. Department of Agriculture
01964602
November 25, 1998
Eric A. Shrader, )
Appellant, )
)
v. ) Appeal Nos. 01964602
) 01970488
Daniel R. Glickman, ) Agency No. 950131
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
On October 24, 1996, the appellant, by and through his attorney, filed
an appeal with the Equal Employment Opportunity Commission (EEOC) from
a final agency decision (FAD) dated September 18, 1996 concerning his
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
As the agency did not submit evidence regarding when the appellant's
attorney received the final decision, we find the appeal is timely (see
29 C.F.R. �1614.402(b)), and it is accepted under 29 C.F.R. �1614.401.<1>
ISSUE PRESENTED
Whether the agency properly determined the amount of attorney's fees
and costs to be awarded the appellant.
BACKGROUND
On January 31, 1995 the appellant filed an EEO complaint alleging that he
was discriminated against on the bases of race (white) and reprisal (EEO
activity) when he was not provided with an appraisal for the period ending
September 30, 1994. When the agency accepted the appellant's complaint,
it informed him that it would be processed through its Dispute Resolution
Board (DRB), and an all day DRB Fact Finding and Resolution Conference
was scheduled for March 31, 1995. It was rescheduled to April 6, 1995,
and rescheduled again to April 12, 1995.
On April 11, 1995, prior to the conference being held, the agency issued
the appellant a letter stating that it was "implementing full relief" on
his complaint. It stated this consisted of (1) providing the appellant a
performance appraisal for fiscal year 1994 with a rating of "outstanding,"
(2) proven compensatory damages, and (3) proven reasonable attorney fees.
With regard to attorney's fees, the letter stated that the agency was
willing to pay proven and reasonable fees incurred as of the date of
the letter, in accordance with 29 C.F.R. Part 1614.
On April 14, 1995, the agency issued the appellant a performance appraisal
for the period of July 1, 1993 through September 30, 1994 with a rating
of outstanding. Other than an award for attorney fees, the record does
not show that further relief has been provided.
The appellant's attorney submitted a fee petition to the agency in May
1995 requesting compensation for 44 hours of work by the attorney, at
an hourly rate of $150, for a total of $6,600, and costs in the amount
of $168.92. The attorney also seeks an additional $1,000 for time he
expended trying to recover his requested fees. The agency awarded and
paid the attorney $255 in fees, i.e., 1.7 hours at an hourly rate of
$150.
ANALYSIS AND FINDINGS
Where the parties are unable to settle the amount of attorney's fees,
the fee applicant bears the burden of establishing entitlement to an award
and documenting the appropriate hours expended and hourly rates. Hensley
v. Eckerhart, 461 U.S. 424, 437 (1983). An award of attorney's fees
is ordinarily determined by multiplying the number of hours reasonably
expended by a reasonable hourly rate. 29 C.F.R. �1614.501(e)(2)(ii)(B).
Here, there is no dispute as to the reasonably hourly rate. Further, a
fee petition must "contain sufficiently detailed information regarding
the hours logged and the work done" to permit the determination of
whether hours were reasonably expended. National Association of Concerned
Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C. Cir. 1982). In
support of his request, the fee applicant need not "record in great detail
how each minute of his time was expended." Hensley, 461 U.S. at n. 12.
However, the applicant does have the burden of identifying the subject
matter on which he spent his time, which can be documented by submitting
sufficiently detailed contemporaneous time records to ensure that the time
spent was accurately recorded. See Davis v. Department of the Treasury,
EEOC Request No. 05901213 (March 1, 1991).
The fee petition contains an itemized list of hours expended representing
the appellant. For the period of December 21, 1994 through January 30,
1994, the petition contains five entries for items such as a telephone
call and conference with the appellant, research of Title VII background
and rules, and reviewing the draft complaint. The entries add up to
7.6 hours. Reasoning that it is only required at the pre-complaint stage
to pay fees for the time needed for an attorney to determine whether
to accept a case, the agency awarded 1.7 hours of time for this period.
As the appellant and his attorney do not claim that more time was used
for this purpose, and 1.7 hours is facially reasonable, this determination
by the agency is affirmed. 29 C.F.R. �1614.501(e)(iv). As noted above,
the agency has already compensated the attorney for this 1.7 hours.
The next two entries in the fee petition were "Telecon w/[appellant]" on
February 4, 1995 and a "Conference w/[appellant]" on February 11, 1995.
They were 2.4 hours each. The agency denied this time on the grounds
that the attorney failed to state with necessary specificity what work
was accomplished nor provide enough information to allow a determination
on whether the time was reasonably expended.
The attorney alone represented the appellant on complaint 950131, which
contained a single issue upon which the appellant prevailed.<2> Given
this, and the fact that the entries billed to complaint 950131 appear
to be contemporaneous, we find they were for discussions the attorney
had with the appellant about this case. However, at the time of these
entries, there was no activity in the appellant's case. Because of the
lack of specificity that it was reasonable to expend nearly five hours
talking to the appellant, the fee petition supports 1 hour of these
claimed hours.
From February 22, 1995 through April 18, 1995, the fee petition contains
the following entries:
2/22/95 Research EEOC Reprisal Cases 2.3 hours
3/4/95 Conference w/[appellant]& Follow-Up 3.5 hours
3/23/95 Preparation for DRB 3.4 hours
3/30/95 Rev. DRB Procedures w/[appellant] 1.7 hours
4/5/95 Review File and Telecon w/[appellant] 2.3 hours
The agency denied these entries on the same grounds it denied the previous
two entries. We find, however, that the fee petition is sufficiently
specific, given the appellant's allegation of reprisal discrimination
and the timing of the DRB conference, to show that the hours expended
on February 22, 1995, March 23, 1995, March 30, 1995, and April 5, 1995
were reasonably spent for research and preparing for the DRB conference.
This time totals 9.7 hours. The Commission also finds that 1 hour was
reasonable on March 4, 1995 to discuss the research and follow-up with
the appellant. Thus, for this period, the appellant was entitled to
10.7 hours.
We now turn to the remainder of the entries, which were from April 18,
1995 to May 10, 1995. These entries totaled 20.5 hours. They were for
work such as reviewing correspondence by the appellant and the agency,
writing a letter to the agency asking for additional equitable relief,
advising the appellant, and documenting the claim for compensatory
damages. Much of this activity was an effort to secure further relief.
First, the agency denied entries from April 18, 1995 through April 22,
1995 totaling 5.1 hours on the grounds that the attorney did not provide
sufficient specificity. We disagree. After reviewing documentation
in the file to which these entries refer, it is readily apparent that
they regard reading the agency's letter implementing "full relief,"
the attorney's response thereto, and discussing with the appellant his
additional written response. For the most part, these efforts were
attempts to secure additional equitable relief. After reviewing the
documentation, we find that 4 hours was a reasonable of amount of time
to expend, and award this amount.
The next entry was on April 26, 1995 in the amount of 2.8 hours and was
for "Letter from [agency] (04/24); Res. Comp. Damage issues; advise
[appellant]." The entry did not break down how long each task took.
The 4/24 letter notified the appellant that he was being reassigned.
Because it was very brief, we find that the attorney spent .1 hour
reviewing it. The agency denied payment to the attorney for reviewing
the letter on the grounds that it did not regard the instant complaint.
We agree.
The agency denied compensation for the remaining portion of the April
26, 1995 entry and all remaining entries through May 10, 1995, with
one exception, on the grounds that they were related to the attorney
representing the appellant on his compensatory damages claim, which should
be "adjoined to all other charges relating to compensatory damages when
it is submitted in the future."
We disagree that this matter should wait. The agency's April 11, 1995
letter implementing "full relief" stated that the appellant must submit
his claim for proven compensatory damages within 30 days of receipt
of the letter. As the prevailing party, the appellant is entitled to
reasonable attorney fees for the representation he received in trying
to obtain compensatory damages.
The entries which the agency referred to as relating to compensatory
damages total 14.7 hours, not including one entry on May 10, 1995 that
actually concerned preparing the fee petition. The entries detailed work
such as researching compensatory damages issues, talking to the appellant,
and gathering documentation on compensatory damages. This documentation
included statements from people describing the appellant's mental and/or
physical state, and a letter by the attorney describing the evidence and
making arguments for compensatory damages. We find that 14.7 hours was a
reasonable amount of time for work done related to compensatory damages
for entries from April 26, 1995 to May 10, 1995, and hence award this
amount.
The agency also denied compensation of a .3 hour entry for May 3, 1995
regarding reviewing a letter by the appellant to the Secretary of the
agency on the grounds that this was not relevant to the processing
of the appellant's case. The record does not contain a copy of
this letter. Some representational activities that are not directly
involved with processing of a claim are compensable when, for example,
they are reasonable and calculated to advance the claim. A letter to
the Secretary could fall within this ambit. Given the small amount
of time here, we will not remand this matter for further evidence,
and award the .3 hours claimed.
The final entry in the fee petition was for .3 hours preparing the
verified statement of attorney's fees and costs. This amount of time
was reasonable, and .3 hours is hereby awarded.
With regard to costs, the fee petition requested $101 in airfare on
December 28, 1994, and 67.92 for telephone and fax expenses. It did
not breakdown the latter expenses, or state when they were incurred.
The appellant worked in Washington, D.C., and the attorney's office was
located in Louisville, Kentucky. Given that the appellant's complaint
contained a single uncomplicated issue, i.e., delay of a performance
appraisal, we do not find it was reasonable for the attorney to incur
an airfare expense at the precomplaint stage.
The fax expenses must be itemized so it can be determined whether
they were reasonable. Also, telephone expenses need to be supported
with telephone bills. Canady v. Department of the Army, EEOC Request
No. 05890226 (December 27, 1989). If the attorney wishes to pursue
reimbursement of the telephone and fax costs, on remand he shall submit
additional information to the agency as set forth in the order below.
Next, the attorney contends that the agency representative agreed to pay
$1,000 for additional time expended through March 6, 1996 attempting to
collect attorney's fees. In a May 1996 letter to the attorney, the agency
representative denied such an agreement. EEOC 29 C.F.R. �1614.501(e)(2)
provides that an agreement on attorney's fees shall immediately be
reduced in writing. Given the above, we find there was no agreement.
Nevertheless, we find that the attorney is entitled to some compensation
as set forth below.
EEOC Regulation 29 C.F.R. �1614.(e)(2)(ii)(A) provides that if the parties
cannot reach a settlement on fees or costs, the agency shall issue a
decision determining the amount of fees or costs due within 30 days of
receipt of the fee petition. Here, the agency did not award fees until
May 1996, and its final decision on fees was issued in September 1996,
some 16 months after the fee petition was filed.
The record contains four letters by the attorney to the agency between
September 5, 1995 and April 30, 1996 where he attempted to secure his
requested fees and costs. Based on a review of the above activity,
including a brief description of negotiations in March 1996 on fees and
costs, we find that 5 hours is a reasonable amount of time to expend on
these activities, and this amount is hereby awarded.
Finally, the attorney requests interest on from June 10, 1995 until
his attorney's fees and costs are paid in full. Once a specific sum of
attorney's fees has been agreed to or awarded, interest is available on
a delay in payment. Cole v. United States Postal Service, EEOC Petition
No. 04950009 (February 19, 1997). Cole denied interest for a delay
prior to a specific sum being awarded. Here, there was not a delay in
paying a specific sum awarded fee. Accordingly, the Commission will
not include a charge of interest in the calculation of the fees.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to MODIFY the final decision of the
agency which concerned attorney's fees and costs.
ORDER
The agency is ordered to take the following remedial actions:
(1) Pay to the appellant's attorney's fees in the amount of $5,400,
that is an additional 36 hours at $150 per hour. The agency shall tender
this payment to the attorney within 30 calendar days after this decision
becomes final.
(2) If, with regard to the telephone and fax costs recited in the May
1995 fee petition the appellant's attorney submits to the agency within
30 calendar days of the date this decision becomes final the applicable
telephone bills and/or an itemization of the fax costs, the agency shall
tender payment to the attorney for these costs to the extent they are
reasonable no later than 60 calendar days after this decision becomes
final.
(3) Pay to the appellant's attorney reasonable attorney's fees and
costs incurred in pursuit of this appeal (EEOC Appeal Nos. 01964602
and 01970488). The attorney shall provide the agency with all necessary
documentation of services rendered and costs as incurred in pursuit of
this appeal within 30 calendar days of the date this decision becomes
final. The agency may tender this payment separately, or together with
the payment specified in paragraph (1) of this order. If this payment
is tendered separately, the agency shall tender it to the attorney no
later than 60 calendar days after this date this decision becomes final.
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 of the
agency's calculation of the award of attorney's fees and costs, and
evidence that the corrective action has been implemented. The report
shall be submitted no later than 30 calendar days after the date on
which the corrective action has been completed.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Nov. 25, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1The FAD indicated that the complaint number was 950131. Previously, the
agency designated the complaint as 950131. On appeal, the agency explains
that the FAD inadvertently used the wrong complaint number. For this
reason, we refer to the complaint as 950131. Also, the appellant
previously appealed to the Commission an agency letter awarding attorney
fees, albeit it contained appeal rights to the agency. It was docketed by
this Commission. This decision consolidates the appellant's appeals from
the above letter and the FAD. The letter and the FAD awarded the same
amount of fees.
2He also represented the appellant on a number of other complaints.