Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 11, 2015

01-2013-3350-0500 (E.E.O.C. Sep. 11, 2015)

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

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 0120133350

Agency No. 4C400005109

DECISION

On September 11, 2013, Complainant filed an appeal from the Agency’s August 12, 2013,
final decision concerning her 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission MODIFIES the Agency’s final decision.

BACKGROUND

Complainant filed an administrative EEO complaint alleging that she was discriminated against
on the bases of sex and disability when, inter alia, she not selected for the position of Vehicle
Operations Maintenance Assistant. While the complaint was pending before an Equal
Employment Opportunity Commission Administrative Judge (AJ) Complainant sought and
received leave to amend her complaint to include a claim based on the Agency’s improper
release of her medical information. Specifically, Complainant alleged that the Agency had
improperly distributed copies of the Report of Investigation containing her confidential medical
information to unauthorized persons.

Following a hearing but before ruling on the merits of the complaint, the AJ remanded the case
to the Agency at Complainant’s request. The Agency issued a final decision (FAD), finding,
in pertinent part, against Complainant on the merits of the nonselection claim, and dismissing,
for failure to state a claim, the improper disclosure of medical information claim.
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On appeal, the Commission affirmed the FAD in all respects except as it related to the
improper disclosure of medical information claim. On that issue, the Commission reversed,
finding that the Agency’s disclosure of Complainant’s medical information contained in the
Report of Investigation constituted a per se violation of the Rehabilitation Act’s confidentiality
provisions. EEOC Appeal No. 0120103590 (September 19, 2012). The Commission ordered
the Agency to provide remedial training to the employees responsible for the improper
disclosure and to post a notice but did not provide for an award of attorney’s fees. On
reconsideration, the Commission modified the relief awarded, inter alia, to permit Complainant
to submit a petition for attorney’s fees. EEOC Request No. 0520130084 (April 16, 2013).

In response to the decision on reconsideration, counsel for Complainant submitted an
attorney’s fee petition to the Agency seeking an award of $22,536.50 in fees and $5,348.18 in
costs. The Agency issued a final decision awarding $8,584.00 in fees and $4,369.14 in costs.
From that decision Complainant brings the instant appeal.

ANALYSIS AND FINDINGS

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. Bernard v. Dep't of
Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998) (citing Hensley v. Eckerbart,
461 U.S. 424 (1983)). In determining the number of hours expended the Commission
recognizes that the attorney “is not required to record in great detail the manner in which each
minute of his time was expended.” Id. However, the attorney does have the burden of
identifying the subject matters on which he spent his time by submitting sufficiently detailed
and contemporaneous time records to ensure that the time spent was accurately recorded. Id.

Hourly Rate

The law is well established that a successful civil rights litigant is entitled to be reimbursed for
attorney’s fees incurred at a reasonable hourly rate based on “prevailing market rates in the
relevant community” for attorneys of similar experience in similar cases. EEO MD-110, Ch. 11,
§ VI.F.1. Here, the parties differ on the question of which is the appropriate “community” for
determining the prevailing attorney’s fees rate. Complainant seeks reimbursement at rates
charged in the Washington, DC area, where Complainant’s counsel maintains offices. The
Agency argues for prevailing rates in the Louisville, Kentucky area where Complainant resides
and the actions underlying the complaint occurred. The Commission has held that if a party
does not find counsel readily available in the locality of the case with whatever degree of skill
that may reasonably be required, it is reasonable for the party to go elsewhere to find an
attorney. See Harden v. Soc. Sec. Admin., EEOC Appeal No. 0720080002 (Aug. 12, 2011)
(citing Southerland v. U.S. Postal Serv., EEOC Appeal No. 01A05403 (Oct. 16, 2002)). The
burden is on the agency to show that a complainant's decision to retain out-of-town counsel
was unreasonable. See id. The Commission addressed this issue in Taber v. United States
Postal Service, EEOC Appeal No. 0120110658 (June 20, 2012). That case arose in North
Carolina, which the Agency argued was the relevant community for determining prevailing
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attorney’s fee rates. As in the instant case, the complainant argued that the Washington, DC
area, where the complainant’s counsel’s practice was located, was the relevant geographic
area. The Commission held that the Agency bore the burden of proving that hiring out-of-state
counsel was unreasonable and found that the Agency had successfully borne that burden by
showing that attorneys with relevant experience were available to represent the complainant in
North Carolina.
Applying the same analysis here, we find that the Agency has borne the burden of proving that
qualified counsel was available to represent Complainant in the Louisville area, obviating the
need for out-of-state counsel. The Agency has produced for the record several internet listings
for attorneys in North Carolina offering representation in employment discrimination matters.
Complainant offers no evidence to show that these attorneys were not qualified to represent
Complainant in this matter. Accordingly, obligations for legal services incurred by
Complainant will be reimbursed that the following prevailing North Carolina rates:

Paralegal/Law Clerk $135/hr
Attorney (1-3 year experience) $150/hr
Attorney (4-7 year experience) $175/hr
Attorney (20+ year experience) $250/hr

Number of Hours Expended

The hours spent on unsuccessful claims should be excluded in considering the amount of a
reasonable fee only where the unsuccessful claims are distinct in all respects from the
successful claims. EEO MD-110, Ch. 11, § VI.F.1. Successful and unsuccessful claims are
not fractionable when they are closely intertwined and involve the same common core of facts.
See Mannon v. U.S. Postal Serv., EEOC Appeal No. 0720070074 (Apr. 4, 2012).

There is a strong presumption that the number of hours reasonably expended multiplied by a
reasonable hourly rate, the lodestar, represents a reasonable fee, but this amount may be
reduced or 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). Fee awards may be
reduced by an across-the-board percentage. Blinick v. Dep't of Housing and Urban
Development, EEOC Appeal No. 07A20079

(Feb. 3, 2004) (20% reduction of attorney's fees
when the complainant was only successful on part of her complaint).
Here, we conclude that Complainant should be reimbursed for 25% of the hours expended by
her attorneys in prosecuting this matter. Complainant does not dispute that the successful
claim, relating to improper disclosure of medical information is separable from the other
claims on which Complainant was unsuccessful. The complaint, including the amendments
thereto, sets forth overlapping and repetitive allegations some of which were ultimately
withdrawn. Our review of the record, including particularly Complainant’s appeal brief in
EEOC Appeal 0120103590, her initial brief on the merits, indicates that Complainant has
pursued four distinct claims here: 1) improper medical inquiry; 2) improper hiring practices; 3)
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nonselection; and 4) improper release of confidential medical information. Only with respect
to Claim 4 was Complainant the prevailing party. Accordingly, the lodestar amount will be
reduced by 75%.1

Costs

Complainant seeks reimbursement of costs in the amount of $5,348.18. The Agency objects to
reimbursement of certain expenses for lodging and meals. First, the Agency objects to
reimbursement of $303.28 for the hotel expenses of two attorneys representing Complainant at
a hearing on March 23, 2010. The Agency argues that it was unreasonable for more than one
attorney to represent Complainant at a hearing. The Agency’s position is not supported by
Commission precedent. Page-Sanchez v. United States Postal Service, EEOC Appeal No.
0720050080 (June 12, 2007)(representation by two attorneys at hearing is not unreasonable).

Second, the Agency objects to reimbursement of $675.76 for meal expenses for Complainant’s
counsel while traveling in the course of representing Complainant. The Agency argues that
meal expenses are “overhead” and should not be reimbursed. Here again, the Agency’s
position is not well taken. The Commission has held that meals are legitimate litigation
expenses, for which prevailing parties will be reimbursed. Gerber v. Department of Homeland
Security, EEOC Appeal No. 07A30062 (May 25, 2004)(meals expense is reimbursable as
cost). For these reasons, Complainant is entitled to $5,348.18 as reimbursement of costs.

Lodestar Calculation

Paralegal/Law Clerk 30.6 hrs @ $135/hr =$ 4,131.00
Attorney (1-3 year experience) 0.3 hrs @ $150/hr = 45.00
Attorney (4-7 year experience) 107.4 hrs @ $175/hr = 18,795.00
Attorney (20+ year experience) 18.9 hrs @ $250/hr = 4,725.00

$27,696.00

Reduced by 75% 6,924.00

Fee Petition Preparation

Paralegal/Law Clerk 6.5 hrs @ $135/hr =$ 877.50
Attorney (4-7 year experience) 13.7 hrs @ $175/hr = 2,397.50

3,275.00

1 This reduction will not be applied to the preparation of the fee petition, for which time
expended will be fully reimbursed.
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Total Fees: $10,199.00

Costs $ 5,348.18

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to modify the
attorney's fee award in accordance with the foregoing.

ORDER

To the extent it has not yet done so and within sixty (60) days of the date of this decision, the
agency is directed to pay Complainant $10,199.00 in attorney's fees and $5,348.00 in costs.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

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 77960, Washington, DC
20013. 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 (M0815)

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:
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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), 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, P.O. Box 77960, Washington, DC 20013. 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 (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.

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
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time limits for filing a civil action (please read the paragraph titled Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 11, 2015
Date