01976511
08-06-1999
Edna Gatewood, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs Agency.
Edna Gatewood, )
Appellant, )
) Appeal No. 01976511
v. ) Agency No. 94926
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final agency
decision (FAD) concerning a claim for attorney fees and costs as a
prevailing party in her complaint of unlawful employment discrimination
under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the reasons that follow, we AFFIRM the FAD as
MODIFIED herein.
The issue presented is whether the agency's assessment of the number of
hours reasonably expended and the hourly rate of compensation was proper
in the award of $7,552.12<1>.
Appellant, a Dental Laboratory Technician at the agency Medical Center
in Brooklyn, New York, filed a formal complaint on July 2, 1992,
alleging the agency failed to promote her to a GS-8 Dental Laboratory
Technician position due to race (African-American) and sex (female)
discrimination. At the conclusion of the investigation, appellant received
a hearing before an EEOC administrative judge (AJ). The AJ issued a
Recommended Decision on July 18, 1995, finding discrimination on the
basis of sex. In its February 28, 1993, FAD on this matter, the agency
rejected the AJ's determination, and made a finding of no discrimination.
Appellant appealed this determination to this Commission, and we issued a
decision on May 30, 1997, which, in pertinent part, reversed the FAD and
affirmed the AJ's finding of discrimination. In addition to reasonable
attorney fees, appellant was awarded retroactive promotion with full
seniority, backpay, interest and all other benefits incident thereto.
In his original fee petition, dated June 24, 1997, appellant's counsel
requested compensation for 91.90 hours of work at a rate of $250.00
per hour for a total amount (�lodestar�) of $22,975.00. In its FAD, the
agency found that counsel was entitled only to 61.65 hours, at the rate of
$122.50, which was the contract rate agreed to by counsel and appellant.
Appellant herewith appeals this determination, and her counsel requests
an additional 10.3 hours at the rate of $250.00, for a total of $2,575.00,
as compensation for preparation of this appeal.
The starting point for determining the amount of reasonable attorney
fees is the number of hours reasonably expended, multiplied by
a reasonable hourly rate, an amount known as the "lodestar." 29
C.F.R. �1614.501(e)(2)(ii)(B); Bernard v. Department of Veterans' Affairs,
EEOC Request No. 01966861 (July 17, 1998) (citing, Blum v. Stenson,
465 U.S. 886 (1984); and Hensley v. Eckerhart, 461 U.S. 424,433-34
(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." See Bernard,
(citing, Hensley, 461 U.S. at 437, n. 12). However, the attorney does
have the burden of identifying the subject matters in which he spent
his time, which can be documented by submitting sufficiently detailed
contemporaneous time records to ensure that the time spent was accurately
recorded. See Bernard, (citing, National Association of Concerned Veterans
v. Secretary of Defense, 675 F.2d. 1319 (D.C. Cir. 1982)).
Further, a reasonable fee award may be assessed in light of the following
factors, inter alia, (1) the time required (versus time expended) to
complete the legal work; (2) novelty or difficulty of the issues; (3)
the requisite skill to properly handle the case; (4) the degree to which
counsel is precluded from taking other cases; (5) the customary fee by
comparable attorneys in the community; (6) whether the fee is fixed or
contingent; (7) time pressure involved; (8) the relief sought and results
obtained; (9) the experience, reputation, and ability of the attorney;
(10) the undesirability of the case; (11) the nature and length of the
attorney-client relationship; and (12) awards in similar cases. Cerny
v. Department of the Army, EEOC Request No. 05930899 (October 19, 1994)
(citing, Johnson v. Georgia Highway, Inc., 488 F.2d 714, 717-19 (5th
Cir. 1974)).
An applicant for attorney's fees is only entitled to an award
for time reasonably expended. It does not always follow that the
amount of time actually expended is the amount of time reasonably
expended. Elvin v. Department of Labor, EEOC Request No. 01943425
(August 31, 1995) (citing, Copeland v. Marshall, 641 F.2d. 880, 891-92
(D.C. Cir. 1980)). Rather, "billing judgement" is an important component
in fee setting, and hours that would not be properly billed to a private
client are also not properly billed to the agency pursuant to a successful
EEO claim. Id. Counsel for the prevailing party should make a "good
faith effort to exclude from a fee request hours that are excessive,
redundant or otherwise unnecessary." See Bernard, (citing, Hensley,
Taking into account the above considerations, we have reviewed the
record, and we are persuaded that the hours claimed by appellant's
counsel are sufficiently documented and reasonable. When we consider
that appellant was granted a retroactive promotion, with backpay and
interest, as well as the fact that case required counsel to develop a
detailed understanding of dental procedures and technology, and also that
the hearing was complicated and lengthy, requiring significant counsel
preparation to effectively cross examine agency witnesses, we find that
all of the hours claimed by counsel appear to be reasonable and necessary
for the proper and ethical representation of his client. Furthermore,
we find that the 10.3 hours claimed for the preparation of this appeal
is likewise reasonable. Accordingly, we find that a total of 102.20
hours is a proper assessment of the number of hours reasonably expended
by counsel in representing appellant and in the petition and appeal for
attorney fees.
With respect to an hourly rate of compensation, we concur with the
agency's determination that $122.50 per hour is an appropriate award of
reasonable attorney fees. In pertinent part, review of the original
service contract between appellant and her counsel discloses that:
�...Attorney will accept as his entire fee for services described
herein...$122.50 per hour.� The contract is devoid of any indication
that this is a discounted rate or a special lower rate charged as a
public service to federal workers with employment discrimination claims.
In a supplemental affidavit dated August 27, 1997, appellant's counsel
asserts that he participates in a legal services program through
the AFL-CIO, and that appellant qualified for the rate of $175.00
per hour through this program, which he further discounted because
of her inability to pay. However, outside of a flyer describing the
program, appellant provides no evidence to show that she or her counsel
participated in the program. Moreover, we find that the original fee
petition fails to describe an expertise in employment discrimination
matters, showing instead that counsel had expertise in ERISA matters,
and that the prevailing customary hourly rate in New York City for an
attorney with ERISA expertise was $250.00 per hour. Although appellant's
counsel claims significant employment discrimination experience in his
supplemental affidavit, he fails to provide any supporting documentation
to substantiate his claim. Furthermore, we agree with the agency that it
was incumbent upon appellant's counsel to fully support his hourly rate
in the original petition, and not substantially alter the recitation of
his experience only after it was challenged.
Therefore, based on these facts, we conclude that the best evidence of
the proper rate is that which was agreed to by appellant and her counsel
in their initial service contract. Accordingly, we MODIFY the FAD and
calculate the lodestar as $122.50 (hourly rate) multiplied by 102.20
(number of hours for preparation of appellant's case and petition for
attorney fees) for a total of $12,519.50, which is the proper award of
reasonable attorney fees to be paid to appellant's counsel by the agency.
Pursuant to the findings and conclusion herein, the agency shall comply
with the following ORDER.
ORDER
The agency shall issue a check to appellant's counsel in the amount
of $12,519.50, within fifteen (15) calendar days of the date this
decision becomes final. The agency shall submit a report of compliance,
as provided below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
August 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The FAD disallowed appellant's request for her counsel's costs because
she failed to verify the request with documentation. On appeal,
appellant does not address the denial of costs. Therefore, this issue
is not properly before us, and we shall not consider it herein.