Mike Amaro, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 20, 2005
01a43288 (E.E.O.C. Jul. 20, 2005)

01a43288

07-20-2005

Mike Amaro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Mike Amaro v. United States Postal Service

01A43288

July 20, 2005

.

Mike Amaro,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A43288

Agency No. 4G-780-0196-98

DECISION

Pursuant to 29 C.F.R. Sec. 1614.405, the Commission accepts complainant's

appeal from the agency's final decision (FAD) in the above-entitled

matter. Believing that he was a victim of discrimination, in May 1998,

complainant filed an EEO complaint alleging that the agency discriminated

against him based on age (over 40) and in reprisal for prior EEO activity

when it, on January 16, 1998 (1) rated complainant as "unacceptable" on

his 1997 merit evaluation and (2) issued complainant a proposed letter

of warning in lieu of a 14-day suspension. Following an investigation,

the agency issued a FAD finding no discrimination based on age or

reprisal. On appeal to the Commission, we found no discrimination

based on age but found retaliation. See Amaro v. U.S. Postal Service,

EEOC Appeal No. 01994367 (February 5, 2002). The agency was ordered

to conduct a supplemental investigation on compensatory damages, and

awarded other appropriate remedies.

Following the supplemental investigation, the agency issued a FAD

awarding complainant $2,000.00 in non-pecuniary, compensatory damages.

Complainant again appealed to the Commission. We held that the amount of

the award of non-pecuniary, compensatory damages should be increased to

$3,500.00 and instructed complainant that she could petition the agency

for an award of attorney's fees. See Amaro v. U.S. Postal Service,

EEOC Appeal No. 01A30313 (December 12, 2003).

On February 11, 2004 complainant submitted an attorney's fees petition

to the agency seeking reimbursement for $5,670.00 in fees and expenses.

On April 21, 2004, the agency issued a FAD awarding complainant $1,313.50

in fees and expenses. From that FAD, complainant brings the instant

appeal.

Complainant, having prevailed in her previous appeals is

presumptively entitled to an award of attorney's fees and costs. 29

C.F.R. Sec. 1614.501(e)(1). Attorney's fees will be computed by

determining the "lodestar." The "lodestar" is the number of hours

reasonably expended multiplied by a reasonable hourly rate. Hensley

v. Eckerhart, 461 U.S. 424, 434 (1983). By regulation, the Commission uses

the same basis for calculating the amount of attorney's fees. 29 C.F.R

Sec. 1614.501(e)(2)(ii)(B). A reasonable hourly rate is a rate based on

"prevailing market rates in the relevant community" for attorneys of

similar experience in similar cases. Cooley v. Department of Veterans

Affairs, EEOC Request No. 05960748 (July 30, 1998) (quoting Blum

v. Stenson, 465 U.S. 886 (1984)).

Hourly Rate

Complainant's attorney seeks to be compensated at an hourly rate of $300.

The agency's FAD was based on an hourly rate of $185. In support of

her claimed rate, complainant's attorney has submitted her own affidavit

and that of another lawyer. She also submits a document entitled �2001

Hourly Rate Report� prepared by the State Bar of Texas.

Our review of the evidence concerning prevailing market rates in the

relevant community supports an hourly rate of $200. Complainant's

counsel avers, and the agency does not dispute, that the agency has,

in the past, compensated her at the rate of $200 per hour. That is

certainly persuasive evidence that complainant's counsel's services are

worth at least that much. In addition, the Texas State Bar report shows

that the most common hourly rate charged by Texas attorneys in the Labor

and Employment field was $200.

However, there is insufficient evidence to establish that a lawyer of

complainant's counsel's experience could routinely command the rate of

$300 per hour in Texas. Complainant's counsel does not contend that she

has ever actually collected $300 per hour for her services. She concedes

that until recently her hourly rate was $200. The affidavit from

the second lawyer does not directly address the question of prevailing

market rates for an attorney with experience comparable to complainant's

counsel. The affiant avers that he has �personally seen attorneys with

substantially lower abilities and less experience [than complainant's

counsel] charging from $200.00 to $300.00 per hour to represent both

individuals and corporate defendants.� This statement does not help

complainant's case. It provides no evidence of prevailing rates because

it does not give any indication of what percentage of attorneys charge

rates in that range.

Hours Reasonably Expended

The agency has disallowed more than half of the 18.6 hours complainant's

counsel devoted to the successful second appeal and resulting

fee petition. The disallowals are primarily based on the agency's

conclusion that the amount of time spent on a particular activity was

�excessive.� We have reviewed the petition and the supporting time

records and conclude that the amount of time expended rendering various

services, such as brief drafting, petition preparation and communicating

with complainant are reasonable. It is not possible for the agency to

scrutinize a particular document, a brief for example, assess that it

could have been produced in three hours, rather the 4.8 hours claimed

and reasonably conclude that the time claimed was excessive. In the

practice of law, time must often be devoted to matters that may not

ultimately be reflected in a final work product. That attorney time,

if reasonably expended, is nonetheless compensable.

Conclusion

Based on the foregoing, the agency's final decision will be modified to

provide that complainant will be awarded $3,720.00 for attorney's fees

based on an hourly rate of $200 multiplied by 18.60 hours reasonably

expended.

ORDER (C0900)

The agency is ordered to take the following remedial action:

Within sixty (60) calendar days of the date this decision becomes final,

the agency shall the agency shall pay complainant's attorney fees and

costs in the amount of

$3,720.00

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 (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. Sec. 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. Secs. 1614.407, 1614.408, and 29 C.F.R. Sec. 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. Secs. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 1614.604(c).

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by 29

C.F.R. Sec. 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. Sec. 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. Sec. 1614.501.

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. Sec. 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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

July 20, 2005

__________________

Date