01983334
05-18-2001
Joyce W. Smith, Complainant, v. Donna A. Tanoue, Chairman, Federal Deposit Insurance Corporation, Agency.
Joyce W. Smith v. Federal Deposit Insurance Corporation
01983334
May 18, 2001
.
Joyce W. Smith,
Complainant,
v.
Donna A. Tanoue,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01983334
Agency Nos. 94-36, 94-42, 96-20, 97-38
Hearing Nos. 250-95-8253X/8254X
DECISION
INTRODUCTION
On March 26, 1998, Joyce W. Smith (complainant) initiated an appeal
to the Equal Employment Opportunity Commission (EEOC) from the final
decision of the Federal Deposit Insurance Corporation (agency), issued on
February 24, 1998, concerning a request for attorney's fees in connection
with her equal employment opportunity (EEO) complaint. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether the agency correctly calculated the amount
of attorney's fees and costs to which complainant is entitled.
BACKGROUND
On June 30, 1994, complainant filed the first of a series of four formal
complaints with the agency alleging discrimination on the basis of sex
(female) when, inter alia, she was denied a promotion. The subsequent
complaints, which were filed over the course of the following three years,
alleged that, in addition to being discriminated against on the basis
of sex, she was retaliated against for having engaged in protected EEO
activity. These complaints alleged that the agency had taken a variety
of actions against her, including giving her poor performance evaluations
and placing her on an unwanted detail. Complainant was represented by
counsel at all relevant times during the administrative complaint process.
On October 17, 1997, the parties entered into a settlement agreement
resolving all of complainant's pending EEO complaints. The agreement
called for complainant to receive, among other relief, the promotion
she had been denied, backpay and $25,000 in compensatory damages.
The agreement also provided for the payment of attorney's fees to
complainant's counsel but did not specify the amount to be paid.
The amount of the fee was to be determined pursuant to 29 C.F.R. �
1614.501(e).
Subsequently, complainant's counsel submitted a fee petition to the agency
requesting attorney's fees and costs totaling $50,948.09 for 254.81 hours
of services rendered during the period June 27, 1994 through September
23, 1997 at an hourly rate of $195.00, and costs incurred of $1,260.14.
On February 24, 1998, the agency issued a final agency decision (FAD),
in which it agreed to pay attorney's fees in the amount of $43,329.44
but disallowed fees and costs amounting to $7618.65. It is from this
decision that complainant now appeals.
LEGAL STANDARD
By federal regulation, an agency may award the applicant reasonable
attorney's fees, in accordance with existing case law and regulatory
standards, incurred in the processing of an EEO complaint. 29 C.F.R. �
1614.501(e). The fee awarded is normally determined by multiplying the
number of hours reasonably expended on the case by a reasonable hourly
rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart,
461 U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B). The attorney
requesting the fee award has the burden of proving, by specific
evidence, his or her entitlement to the requested amount of attorney's
fees and costs in the matter. Copeland v. Marshal, 641 F.2d 880, 892
(D.C. Cir. 1983).
Statutory attorney's fees may be recovered only for services rendered
after complainant has notified the agency that she is represented
by an attorney and has filed her formal complaint in the matter. 29
C.F.R. � 1614.501(e)(1)(iv); Clark v. Department of the Navy, EEOC
Appeal No. 01956234 (October 25, 1996); Erickson v. Department of the
Army, EEOC Appeal No. 01944011 (March 12, 1996). The Commission has held
that attorney's fees are not awardable for services rendered between the
time of notice and the time the complaint is filed. McKeel v. Dept. of
Energy, EEOC Appeal No. 01893703 (December 12, 1989). However, fees may
be paid for time expended by counsel to determine whether to represent
the complainant. Stauner v. Department of Agriculture, EEOC Appeal
No. 01890678 (April 13, 1989). The Commission has found that an attorney
may reasonably expend up to two hours for such determination. Vincent
v. Department of the Army, EEOC Request No. 05941012 (February 27, 1996).
ANALYSIS AND FINDINGS
�Pre-Complaint� Services
Fee Petition Item 1.
Complainant's counsel sought to be compensated for 1.75 hours of work
performed on June 27, 1994 prior to the filing of the first complaint.
The agency refused compensation on the ground that pre-complaint
services are generally non-compensable We find, however, that this
work was properly compensable as time expended to �determine whether
to represent the complainant.�
Fee Petition Items 2 through 6.
Complainant's counsel sought to be compensated for 4.16 hours of work
performed during the period July 11, 1994 to August 2, 1994. This period
fell after the filing of the first complaint but before the filing of the
second complaint. The agency refused compensation on the ground that
the services in question related to the not-yet-filed second complaint
and were properly disallowable as pre-complaint services. Complainant's
counsel argues that it is improper to �segregate� the work performed
during this period from the issues raised in the first complaint because
the dispute between complainant and the agency was a single �ball of wax�
and the work in question related to both the first and second complaints.
Even if we were to agree that there is some logic to complainant's
counsel's position, counsel still bears the burden of proving that
the work in question related at least in part to the first complaint
and he has failed to bear that burden. We cannot say from the record
before us that the work was sufficiently related to the first complaint
to take it out of the category of pre-complaint services. Therefore,
compensation will be ordered for only two hours of time expended between
July 11, 1994 and August 2, 1994 as time expended to determine whether
to represent complainant in connection with the second complaint.
Fee Petition Items 23, 24, 34 and 35.
The agency also refused compensation for work performed prior to the
filing of the third and fourth complaints. For reasons similar to those
set forth in the preceding three paragraphs, we will order compensation
for the 1.25 hours of work performed prior to the filing of the third
complaint and for two hours of the 2.66 hours of work performed prior
to the filing of the fourth complaint.
�Excessive� Services
The agency has refused compensation for 29.25 hours of services performed
over the period November 21, 1994 to September 18, 1996<1> on the ground
that the work performed was unrelated to complainant's claims and was
excessive. We disagree. In light of the substantial potential recovery
on the claims asserted and the results actually achieved in settlement,
it appears to us that these services, as described in the fee petition,
were reasonably necessary for the prosecution of complainant's claims.
The agency argues that, because of his lack of understanding of the
federal administrative EEO process, complainant's counsel expended an
unnecessarily large amount of effort in preparing complainant's case.
The agency makes the particular point that complainant's counsel spent
too much time preparing for a scheduled meeting with an EEO investigator.
It seems that complainant's counsel believed that, rather than simply
interviewing complainant at the meeting, the investigator would conduct
an adversarial fact finding hearing. In the agency's view, as a result
of this misapprehension, complainant's counsel spent an excessive amount
of time preparing for the meeting. We are unpersuaded. Conscientious
counsel would have required substantial preparation time whether the
investigator chose to conduct his investigation by means of interview
or by hearing. Under the circumstances, it does not appear that the
attorney time involved was excessive or unnecessary.
Fee Petition Preparation
Complainant's counsel sought to be compensated for time spent preparing
the fee petition he submitted to the agency. The agency refused
compensation on the ground that the settlement agreement did not provide
for an award of fees for that work. We find that the agency's position
is well taken. The settlement agreement states explicitly that the
fee petition �shall not include fees or costs incurred subsequent to
September 23, 1997.� It is undisputed that the fee petition was prepared
after September 23, 1997. Therefore, the agency is not obligated to
compensate complainant's counsel for that work.
Fees Incurred In Connection With Appeal
Having prevailed in substantial part on this appeal, complainant's counsel
will be entitled to an award of attorney's fees and costs associated with
the prosecution of this appeal.<2> The petition should be submitted in
accordance with the order below. The parties' attention is directed to
Black v. Department of the Army, EEOC Request No. 05960390 (December 9,
1998) which modified the Commission's approach to �fees on fees� awards.
Hourly Rate
In calculating the award of attorneys fees, the agency accepted the
$195.00 hourly rate contended for by complainant's counsel. Yet, on
appeal the agency seeks to persuade us to reduce the award by arguing
that a lower hourly rate should apply. That argument is without merit.
We find that an hourly rate of $195.00 is appropriate.
Costs
Commission precedent requires that a petition seeking reimbursement
of costs be supported by detailed documentation, including receipts.
See, e.g., Canady v. Department of the Army, EEOC Request No. 05890226
(December 27, 1989). Complainant's counsel submitted no such
documentation. Accordingly, no costs will be awarded.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
MODIFY the final agency decision awarding attorney's fees as set forth
in the Order of the Commission, below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
(1) Pay to complainant's counsel attorney's fees in the amount of
$7068.75, representing payment for an additional 36.25 hours at $195.00
per hour, in addition to attorney's fees which may already have been
paid to complainant's counsel. The agency shall tender such payment in
full to complainant's counsel no later than thirty (30) calendar days
after the date on which this decision becomes final.
(2) The agency shall also pay to complainant reasonable attorney's fees
and costs incurred in pursuit of this appeal. Complainant's counsel
shall provide the agency with all necessary documentation of services
rendered and costs incurred in connection with this appeal within twenty
(20) calendar days of the date on which 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 complainant's counsel no later
than forty-five (45) calendar days after the date on which this decision
becomes final.
(3) 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 interest due on 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 thirty (30) calendar days after
the date on which the corrective action has been completed.
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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
May 18, 2001
__________________
Date
1Fee Petition Items 11 through 16, 25 and 30 (in part).
2We do not read the settlement agreement in this matter to foreclose an
award of attorneys fees and costs incurred in connection with this appeal.