Hedy B.,1 Complainant,v.Margaret Weichert, Acting Director, Office of Personnel Management, Agency.

Equal Employment Opportunity Commission

Feb 25, 2019

0120172539 (E.E.O.C. Feb. 25, 2019)

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

Hedy B.,1
Complainant,

v.

Margaret Weichert,
Acting Director,
Office of Personnel Management,
Agency.

Appeal No. 0120172539

Hearing No. 570-2015-00848X

Agency No. 2015003

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), from an EEOC Administrative Judge’s (AJ) decision concerning her equal
employment opportunity (EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791
et seq.

BACKGROUND

During the relevant time, Complainant as a Legal Assistant for the Agency’s Retirement
Services-Disability Reconsideration and Appeals Group in Washington, D.C.

Believing that she was subjected to disability discrimination, Complainant filed a formal
complaint on October 17, 2014. After an investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ).

Complainant requested a hearing and the case was assigned to an AJ. The AJ held an Initial
Conference where the parties were authorized to conduct discovery. Over the course of several

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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teleconferences, the parties raised and resolved discovery disputes. Thereafter, on August 23,
2016, the parties attended a Settlement Conference which resulted in an agreement. On
November 1, 2016, Complainant submitted to the AJ a Notice of Settlement and Request to
Withdraw Complaint with Prejudice After Decision on Fees. Pursuant to the settlement
agreement terms, Complainant’s representative would submit a fee petition to the AJ within sixty
days, the Agency would provide a response in the thirty days that followed, and Complainant
had the opportunity to reply within fifteen days of the Agency’s response. Following the parties’
submissions, on June 5, 2017, the AJ issued a “Determination on Attorney’s Fees and Costs” and
an “Order of Dismissal”. The AJ granted Complainant $46,016.90 in attorney’s fees and
$683.18 in costs and the case was dismissed pursuant to the settlement agreement.

In her analysis, the AJ first considered the reasonable hourly rate. While Complainant sought to
use the “Laffey matrix” hourly rates for 2016-2017,2 the Agency argued for the rates for 2015-
2016. Citing prior Commission cases, the AJ chose to use current rather than historical rates (i.e.
the 2016-2017 rates). Additionally, the AJ noted that the 2016-2017 rates went into effect on
June 1, 2016, at the time the Fee Petition was submitted on December 30, 2016.

Next, the AJ considered the amount of hours requested by Complainant. Complainant’s Fee
Petition sought 339.1 hours, for a total of $92,033.80.3 The Agency argued the hours were
excessive. Complainant acknowledged that several attorneys were used, but contended that the
“senior attorney-junior attorney model of representation” minimized overall costs. The AJ
noted, however, that such methods usually involve a total of two or three attorneys, while in the
instant case seven attorneys and eight paralegals worked on the matter.4 This approach, reasoned
the AJ, did not seem to result in a cost savings “when one considers that a total of $92,033.80 in
fees are being sought in a case in which no depositions were conducted, no dispositive motions
practice took place, and no hearing was held.” The AJ found it “unfathomable” that a settlement
conference, the significant event in this case, would result in fees near $100,000. Therefore, the
AJ applied an across-the-board reduction of approximately fifty percent. The AJ reasoned that
such reduction reflected the total fees charged by the junior attorney, senior attorney, and
paralegal who worked the most hours on the case ($35,166.40; $901.30; and $7,488.90,
respectively).

2 The Laffey matrix, which has its origins in the case of Laffey v. Northwest Airlines Inc., 572 F.
Supp. 354 (D.D.C. 1983), reversed in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), is a
chart compiled yearly by the United States Attorney's Office in the District of Columbia. It
provides a schedule of hourly rates prevailing in the Washington, D.C., area in each year, going
back to 1981, for attorneys at various levels of experience.

3 This amount reflected a reduction by Complainant’s attorney from an original amount of 485.8
hours.

4 Fees were only requested for the five attorneys who worked on the litigation.
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Regarding costs, Complainant requested $844.77. The Agency objected to $161.59 charged for
medical records. The AJ agreed that the record was unclear whether the $161.59 was for
medical records or some other medical service and deducted the amount from the total request.
Complainant was awarded $683.18 in costs.

Complainant filed the instant appeal, challenging the AJ’s determination of attorney’s fees and
costs as excessive and an abuse of discretion. According to Complainant, the AJ erred in
determining which individual was the senior attorney who worked the most hours. Rather than
“Attorney M,” who worked three hours ($901.30), “Attorney H” is a firm partner with five more
years of experience who billed 56.6 hours on the case ($21,388.20). Because the AJ based her
across-the-board reduction on the much lesser, and purportedly erroneous, hours of Attorney M,
Complainant argues that if the same logic is applied with Attorney H’s hours, then a thirty
percent reduction results. Specifically, if Attorney M is replaced with Attorney H, the total cost
is $64,043.50, approximately thirty percent lower than the initial total requested. Finally,
Complainant contends that Attorney H’s hours are reasonable, given the “contentious nature of
the reasonable accommodation requested", undue delay in obtaining accommodations, and
“serious nature of disability that required extensive settlement negotiations”.

In response, the Agency argues that the AJ’s determination on attorney’s fees is not appealable,
by virtue of the express terms of the settlement agreement and the AJ’s Order of Dismissal.
Specifically, the Agency contends that a plain reading of the provision addressing attorney’s fees
“clearly establishes that the final determination on attorney’s fees and costs would be made by
the AJ.” The Agency asserts that to permit an appeal of the fee determination would be
“inconsistent with the declaration at the start of the agreement that its purpose was to ‘resolve’
the complaint” and undercut the purpose of settlements.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly
and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be
binding on both parties. The Commission has held that a settlement agreement constitutes a
contract between the employee and the Agency, to which ordinary rules of contract construction
apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The
Commission has further held that it is the intent of the parties as expressed in the contract, not
some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of
Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of
the parties with regard to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787
(December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on
its face, its meaning must be determined from the four corners of the instrument without resort to
extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co.,
730 F.2d 377 (5th Cir. 1984).

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As noted above, the parties executed a settlement agreement on October 18, 2015. The
agreement provided, in pertinent part, that:

1. Introduction and Background

. . . This agreement constitutes a full accordance and satisfaction of all costs, fees,
awards, and damages, to include attorney’s fees, for all claims referenced herein.

2. OPM’s Obligations

g. Within sixty (60) days after the Agreement is signed by all parties,
Complainant’s Representative will submit a fee petition, at a rate not to
exceed the 2016-2017 Laffrey Fee Matrix, to [AJ]. Within thirty (30) days of
receipt of the fee petition the Agency may submit a response or objection to
the AJ regarding the reasonableness of the attorney’s fees and costs in the fee
petition. If the Agency opposes any of the fees and costs sought by
Complainant’s Fee Petition, Complainant may submit a Reply within fifteen
(15) days of receipt of the Agency’s opposition. The reasonable amount of
attorney’s fees and costs, as determined by the [AJ] will be paid within sixty
(60) calendar days of receipt of [AJ’s] decision regarding the same. The
check will be paid to [named law firm] via Electronic Fund Transfer (ETF).
Complainant shall be responsible for the total amount of any federal, state,
and local taxes due on the settlement payment. Within ten (10) days of the
execution of this Agreement, [Complainant’s] attorney agrees to send Agency
Counsel all information necessary to make the deposit, including the attached
vendor form. Nothing in the terms listed above constitutes back pay within the
meaning of the Back Pay Act, 5 U.S.C. § 5596.

The settlement agreement reached by the parties is the source of the AJ’s authority to determine
attorney’s fees and costs, not the 29 C.F.R. § 1614 adjudicatory process. Therefore, the AJ’s
decision, correctly, did not include appeal rights. See Dahlman v. Consumer Product Safety
Commission, EEOC Appeal No. 0720090004 (March 18, 2009). The plain language of the
agreement reflects the parties’ intention that once the AJ issued a decision on fees, the Agency
would pay the amount decided by the AJ within sixty days. There is no provision providing for
the appeal of the AJ’s decision if either party is dissatisfied with the determination. Rather, the
agreement states that it is a “full accordance and satisfaction of all costs, fees, awards, and
damages, to include attorney’s fees” (emphasis added). Therefore, we find that, under the
express terms of the settlement agreement, Complainant is not entitled to file an appeal with this
Commission from the AJ’s decision on attorney’s fees.

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Accordingly, the parties are bound by the settlement agreement terms and the matter is
REMANDED to the Agency for specific performance of the agreement pursuant to the ORDER
below.

ORDER

To the extent it has not already done so, the Agency shall pay attorney’s fees and costs directly
to Complainant’s representatives in the amount of $46,016.90 in fees and $683.18 in costs as
required by the October 18, 2015 settlement agreement and June 5, 2017 AJ Determination. The
Agency shall complete such action within thirty (30) days of the date this decision is issued.

A copy of documentation evidencing payment must be sent to the Compliance Officer as
referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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.
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,
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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

February 25, 2019
Date