01a60798
10-24-2006
Robby Simmons, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Robby Simmons,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A60798
Agency No. 9E0R04001F05
Hearing No. 380-2004-00178X
DECISION
Complainant initiated an appeal to the Commission concerning the agency's
award of attorney's fees.
ISSUE
The issue presented is whether the agency properly determined the
reasonable attorney's fees and costs to be awarded in this matter.
BACKGROUND
During the relevant time complainant was employed as a Wage Grade
10 Mechanic, a seasonal position, at the agency's Aerospace Ground
Equipment Shop at the agency's Eielson Air Force Base in Fairbanks,
Alaska. Complainant filed a formal EEO complaint dated December 9,
2003, alleging that he was subjected to discrimination on the basis
of disability (Post Traumatic Stress Disorder) when: (1) the agency
removed complainant along with an entire swing shift on May 5, 2003,
and (2) the agency failed to provide a reasonable accommodation on or
after October 6, 2003, by failing to re-assign or to allow complainant
to return to the swing shift.
A hearing was held on complainant's complaint by an EEOC Administrative
Judge (AJ) on July 14, and August 12, 2005. Thereafter, the AJ issued a
decision dated September 13, 2005, finding that the agency discriminated
against complainant when it failed to accommodate him on October 6, 2003.
The AJ, however, found that the agency did not discriminate against
complainant when it removed complainant and the entire night shift.
Among the relief ordered in the AJ's decision, the agency was ordered
to pay complainant's reasonable attorney's fees.
On October 19, 2005, the agency issued its final order fully implementing
the AJ's decision.
Complainant's attorney submitted a verified claim for attorney's fees
on October 11, 2005. In his petition, complainant's attorney requested
fees in the amount of $15,867.30 (comprising of 25.28 hours of work at a
rate of $185.00 per hour and 38.75 hours of work at the rate of $225.00
per hour plus costs in the amount of $2,471.13).
On November 28, 2005, the AJ issued a decision on attorney's fees finding
the hourly rate of complainant's attorney was too high for the relevant
legal community. Specifically, the AJ noted that complainant's attorney
billed at his Washington, D.C. hourly rate of $185.00, when the attorney
accepted complainant's case in December 2004, and his increased rate of
$225.00 beginning June 2005. The AJ found the Washington, D.C. hourly
rate too high for the Fairbanks, Alaska legal community. Based on the
median rate information provided in prior EEO cases, the AJ determined the
average "going rate" for federal employment discrimination lawyers in the
Fairbanks community during the relevant time period was $150.00 per hour.
Thus, the AJ found the hourly rate is justified in the amount of $150.00.
Further, the AJ found the quality of representation in the case
was "exceptional and highly professional." The AJ noted that the
attorney's brevity reduced the "court time" considerably, thus saving
time for complainant, the agency, and the Commission. The AJ found the
hourly itemizations listed on the fee petition sufficiently detailed.
The AJ recognized that few attorneys specialize in federal employment
discrimination law in the Fairbanks, Alaska region. Thus, the AJ enhanced
the lodestar in the amount of 25%.
Finally, the AJ found the reasonable across-the-board percentage deduction
should be 25% because there was only a finding of discrimination on
one claim. The AJ reduced the lodestar amount because of the finding
of "no discrimination" on the issue of the removal of the entire swing
shift. The AJ noted his finding is based on the fact that successfully
establishing whether complainant's impairment met the definition of
disability was primary and necessary for both parts of the claim. Thus,
the AJ awarded attorney's fees in the amount of $9,604.50 (64.03 hours
at a rate of $150.00 per hour) plus costs in the amount of $2,471.13,
for a total of $12,075.63.1
Subsequently, complainant filed the present appeal on December 20, 2005.
In response to complainant's appeal, the agency requested the Commission
uphold the AJ's decision on attorney's fees.
ANALYSIS AND FINDINGS
The 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. Bernard v. Department of Veterans Affairs, EEOC
Case No. 01966861 (July 17, 1998). Attorney's fees are ordinarily
computed by determining the lodestar, i.e., the number of hours
reasonably expended multiplied by a reasonable hourly rate. 29 C.F.R. �
1614.501(e)(2)(ii)(B) (explaining that this is the starting point for
computing attorney's fees). There is a strong presumption that this
amount represents the reasonable fee, though in limited circumstances,
this amount may be reduced or increased in consideration of the degree of
success, quality of representation, and long delay caused by the agency.
Id.
At the outset, we find the AJ's determination that the 64.03 hours spent
by complainant's attorney on this case is reasonable is supported by
the record.
Additionally, we find the AJ correctly determined that complainant's
attorney should be compensated at an hourly rate of $150.00.
A reasonable hourly rate is based on prevailing market rates in the
relevant community for attorneys of similar experience in similar
cases. See Cooley v. Department of Affairs, EEOC Request No. 05960748
(July 30, 1998). The relevant market for determining the hourly rate
is where complainant resides or where the hearing was held. Ketchum,
Jr. v. United States Postal Serv., EEOC Appeal No. 01A35285 (Dec. 16,
2004), req. for recons. den, EEOC Request No. 05A50394 (Jan. 31, 2005).
In the present case, complainant's attorney submitted information
indicating the prevailing market rate for attorneys practicing in
Washington, D.C., rather than the market rate in which complainant resides
or where the hearing was heard, namely in Fairbanks, Alaska. Thus,
we find complainant's attorney did not provide sufficient information
to support his requested hourly rate of $185.00 beginning June 1, 2004,
and $225.00 per hour beginning June 1, 2005. Based on the record, we
find the AJ's determination that $150.00 per hour is the average rate for
employment discrimination lawyers in the Fairbanks community is proper.
Although there is a presumption that the lodestar amount represents
the reasonable amount of fees, if an AJ or agency determines that an
adjustment to the lodestar is appropriate, the AJ or agency may calculate
the adjustment by either adding or subtracting a lump sum from the
lodestar figure or by adding or subtracting a percentage of the lodestar.
Upon review, we find the AJ's across-the-board reduction was appropriate
given that complainant prevailed on the denial of accommodation claim
but did not prevail on the issue of his removal from the swing shift.
We note the AJ correctly pointed out that the establishment of complainant
as disabled was a necessary part of both claims. Thus, we find the 25%
reduction was appropriate in this case.
Finally, the AJ found that complainant's high degree of success was a
result of his highly competent attorney who reduced considerable "court
time." An award of attorney's fees may be "increased in consideration of
the degree of success, quality of representation, and long delay caused
by the agency." 29 C.F.R. � 1614.501(e)(2)(ii)(B). In the present
case, we find that the AJ did not abuse his discretion in awarding the
25% enhancement. See Kann v. Department of the Interior, EEOC Appeal
No. 07A50039 (Sept. 28, 2005), request for reconsideration denied, EEOC
Request No. 05A60211 (Dec. 16, 2005). Thus, we agree with the AJ and we
find that complainant is entitled to $12,075.63, in combined attorney's
fees and costs.
Accordingly, the agency's final order regarding attorney's fees is
AFFIRMED.
ORDER
The agency is ordered, to the extent it has not already done so, to take
the following remedial action:
Within 30 days of the date this decision becomes final, the agency shall
tender to complainant payment in the amount of $12,075.63 in attorney's
fees and costs.
The agency is further directed to submit 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. � 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 (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. � 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 (R0900)
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 (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
October 24, 2006
__________________
Date
1 There is no indication the agency issued a final order following the
AJ's November 28, 2005 decision. Since the agency failed to issue its
final order within forty (40) days of receipt of the AJ's decision,
the decision of the AJ became the agency's final action. See 29
C.F.R. �1614.109(i).
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01A60798
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A60798