Tony E.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Mar 13, 2019

0120171226 (E.E.O.C. Mar. 13, 2019)

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

Tony E.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120171226

Petition No. 0420150019

Request No. 0520140443

Appeal No. 0120131896

Agency No. FS-2008-00090

DECISION

On February 14, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
January 6, 2017, final decision concerning the attorney’s fees award incurred for his equal
employment opportunity (EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

Whether the Agency properly calculated Complainant’s attorney’s fees award when it: (1) used a
$250 hourly rate; (2) did not enhance the lodestar to double the award; (3) removed time charged
for clerical duties; and (4) removed time charged for work performed for his Request for
Reconsideration.

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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BACKGROUND

On February 19, 2008, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), age (52), and reprisal for prior
protected EEO activity under Title VII, when on October 10, 2007, he was not selected for a Center
Director position and denied leadership training. The Agency issued a final decision on August
29, 2011, finding that Complainant was subjected to discrimination as alleged. The Agency
determined that the record did not include adequate information regarding the selection process,
and drew an adverse inference of discrimination.

On December 9, 2011, Complainant submitted his claim for remedies and attorney’s fees, and the
Agency issued its final decision on March 1, 2013. Complainant appealed the decision, and the
Commission found that Complainant was entitled to additional remedies, and remanded the matter
back to the Agency. See EEOC Appeal No. 0120131896 (May 22, 2014). Complainant filed a
Request for Reconsideration of this decision, which was denied. However, the Commission
reminded the Agency of its obligation to offer Complainant a substantially equivalent position
with respect to the duties, responsibilities, and location (reasonable commuting distance) of the
position for which Complainant originally applied. See EEOC Request No. 0520140443 (February
5, 2015).

On March 6, 2015, Complainant filed his Petition for Attorney’s Fees to request fees for work
performed from November 9, 2011, through March 6, 2015, at a rate of $400 per hour for 62 hours.
He also requested an additional 62 hours as an enhancement, for a total of 124 hours of work. On
September 27, 2015, Complainant filed a Petition for Enforcement, alleging that the Agency did
not comply with the Commission’s order in EEOC Request No. 0520140443. The Commission
granted the petition, and included an order to submit attorney’s fees in connection with the Petition.
See EEOC Petition No. 0420150019 (March 18, 2016).

On January 6, 2017, the Agency issued a final decision regarding Complainant’s attorney’s fees.
At the outset, the Agency noted that Complainant was not entitled to an award of attorney’s fees
for services rendered from November 9, 2011, through February 3, 2012, because the Agency’s
March 1, 2013 decision deemed the request untimely, and Complainant did not challenge the
Agency’s decision.

The Agency found that the requested attorney’s fees should be further reduced because
Complainant’s attorney (1) did not present any evidence to support an hourly rate more than $250
per hour; (2) did not provide support for his request for an enhanced award; (3) improperly
requested time spent on clerical tasks and; (4) improperly requested fees for time spent on his
Request for Reconsideration, which the Commission denied. The Agency reduced the hours
claimed to 38.1 hours at a rate of $250 per hour, for a total attorney’s fee award of $9,525.

On February 14, 2017, Complainant filed the instant appeal, and submitted a brief in support of
his appeal on March 15, 2017. The Agency submitted a response brief on April 20, 2017.
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CONTENTIONS ON APPEAL

On appeal, Complainant argues that he should be awarded $49,600 in attorney’s fees. Complainant
states that he should be compensated at a rate of at least $400 per hour, which is the prevalent rate
for attorneys in the Washington, D.C. area with similar experience. He also argues that the lodestar
should be enhanced because of the Agency’s “unreasonable, extended, and bad faith,” which
“unnecessarily extended this litigation for three years.”

Complainant also alleges that there were no clerical duties included in the fee petition, and that the
Agency misclassified legal services as clerical. Complainant also states that he should be
compensated for the work performed for the Request for Reconsideration because it resulted in
“affirmative additional requested relief.” While Complainant concedes that the Commission
denied his Request for Reconsideration, he states that the Commission gave him a successful
outcome in providing a more expansive definition of his remedy.

The Agency argues that Complainant is not entitled to an hourly rate of $400 per hour because the
hourly rate should be based on prevailing market rates in the relevant community for attorneys of
similar experience in similar cases. The Agency also states that Complainant is not entitled to an
enhanced fee because he offered no “specific evidence” of the Agency’s bad faith.

The Agency disputes that Complainant should be compensated for time spent reviewing certified
mail receipts because it is clerical in nature. The Agency also argues that Complainant is not
entitled to fees for the Request for Reconsideration because he was not a prevailing party, and did
not gain the benefit sought through the Request. The Agency requests that its January 11, 2017
decision be affirmed.

ANALYSIS AND FINDINGS

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

Attorney’s Fees

The Commission may award Complainant reasonable attorney’s fees and other costs incurred in
the processing of a complaint regarding allegations of discrimination in violation of Title VII. 29
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C.F.R. § 1614.501(e). A finding of discrimination raises a presumption of entitlement to an award
of attorney’s fees. Id. An award of attorney’s fees is determined by calculating the lodestar, i.e.,
by multiplying a reasonable hourly fee times a reasonable number of hours expended. Hensley v.
Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. § 1614.501(e)(2)(ii)(B). The reasonable hourly rate is
generally determined by the prevailing market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skill, experience and reputation. Blum v. Stenson,
465 U.S. 886 (1984). For the purpose of determining the prevailing market rate, the relevant
community is the area where the employer and complainant are located. McTier v. Department of
the Navy, EEOC Appeal No. 07A30016 (March 2, 2004), citing Black v. Department of the Army,
EEOC Appeal No. 01921158 (January 14, 1993).

In this case, we agree with the Agency that the hourly rate for Complainant’s attorney should be
$250, which is the prevailing market rate in his local area, Tennessee. Complainant argues that he
should be compensated at a rate applied to attorneys in the Washington, D.C. area because he
“briefs against,” and negotiates with attorneys in that area. However, he also stated that the United
States District Court for the Eastern District of Tennessee awards attorney’s fees of $250 per hour
in civil rights and employment discrimination cases, and that is the rate he regularly charges to
clients in these types of cases. We find that the precedent is clear that attorneys should use the
prevailing market rate of their own locality, not that of their opposing counsel. As such, we affirm
the Agency’s decision to use $250 as the hourly rate in calculating the lodestar.

In Perdue v. Kenny A., 559 U.S. 542 (2010), the Supreme Court noted that its prior decisions
established the following important rules regarding fee enhancements: (1) there is a “strong”
presumption that the lodestar method yields a sufficient fee, but an enhancement may be awarded
in “rare” and “exceptional” circumstances; (2) the novelty of a case, the complexity of a case, and
the quality of an attorney’s performance generally may not be used as grounds for an enhancement
because those factors are subsumed in the lodestar calculation; (3) the burden of proving that an
enhancement is necessary is borne by the fee applicant; and (4) a fee applicant seeking an
enhancement must produce “specific evidence” that supports the award. 559 U.S. at 552-53.

We find that Complainant has not shown any support for a fee enhancement to double the
attorney’s fees award. Fee enhancements are rare, and to justify one, Complainant needs to provide
“specific evidence” to support one. In this case, Complainant only made bare assertions of
“unreasonable extension” and “bad faith” on the Agency’s part, but did not provide any
documentation to support these allegations. Accordingly, we find no reason to double the lodestar.

We also agree that Complainant should not be compensated for work that is clerical in nature.
Complainant argues that he needed to check the return receipts on mailings in the event that there
is a dispute about the mailing. We do not dispute the need to check certified mail receipts, but it is
clearly clerical, and not legal work. As such, we affirm the Agency’s decision to remove the 0.6
hours charged for this type of work. Karol K. v. Dept. of State, EEOC Appeal No. 0120151671
(October 27, 2017), citing Martina S. v. Dept. of Homeland Security, EEOC Appeal No.
0120160001 (January 24, 2017) (agencies are not required to pay attorney’s fees for tasks that are
clerical in nature).
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In addressing Complainant’s claim for attorney’s fees incurred for his Request for
Reconsideration, we note that Title VII authorizes the award of reasonable attorney’s fees to a
prevailing party. Buckhannon Bd. and Care Home Inc. v. West Virginia Dept. of Health and
Human Resources, 532 U.S. 598 (2001). A prevailing party for this purpose is one who succeeds
on any significant issue, and achieves some of the benefit sought in bringing the action. Davis v.
Dept. of Transportation, EEOC Request No. 05970101 (February 4, 1999) (citing Hensley v.
Eckerhart, 461 U.S. 427, 433 (1983)). In this case, Complainant has already been awarded
attorney’s fees and costs for his successful pursuit of a discrimination finding based on his race,
age, and in reprisal for EEO activity.2

We find that Complainant was not a prevailing party in EEOC Request No. 0520140443 because
it was denied. Complainant argues that he should be compensated because he obtained a successful
outcome in providing a more expansive definition of the remedy, which provided additional relief.
We disagree; the Reconsideration decision did not expand the Commission’s prior order to place
Complainant in the Center Director position, or a substantially equivalent position. The
Commission noted that it has consistently held that that a substantially equivalent position was one
that has similar duties, responsibilities, and location (reasonable commuting distance), and
reminded the Agency to offer a position that conforms to these parameters.

We therefore find that Complainant has not established that he is entitled to attorney’s fees for
work performed for EEOC Request No. 0520140443. See Blinick v. Dept. of Housing and Urban
Development, EEOC Appeal No. 01A50383 (October 17, 2005), request for reconsideration
denied, EEOC Request No. 05A60215 (February 10, 2006) (finding that complainant was not
entitled to additional attorney’s fees she incurred during the appeal stage as the Commission
reversed parts of the Administrative Judge’s (AJ) decision pursuant to the agency’s arguments on
appeal, meaning that complainant was not successful in defending against the agency’s challenges
to the AJ’s decision). Accordingly, we find that the Agency was correct in removing the charges
for work related to the denied Request for Reconsideration.

We find that the Agency was correct in reducing the 6.8 hours worked for the Request for
Reconsideration, and 0.6 hours for clerical work. We further note that with the additional reduction
in hours for work performed November 9, 2011, through February 3, 2012, the Agency properly
awarded Complainant attorney’s fees for 38.1 hours worked at a rate of $250 per hour, for a total
of $9,525.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s decision to award Complainant
attorney’s fees in the amount of $9,525, and ORDER the Agency to pay Complainant’s attorney’s
fee award.

2 Complainant was awarded $1,387.50 in attorney’s fees in EEOC Appeal No. 0120131896.
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ORDER
To the extent it has not already done so, the Agency is ordered to take the following action:
I. Pay Complainant an attorney’s fee award in the amount of $9,525 within sixty (60)
days of the date this decision is issued.
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission’s Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the
report must include supporting documentation that the action has been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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 (S0610)
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.
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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

March 13, 2019
Date