01a30187
03-02-2004
Elisabeth S. Brockie, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Elisabeth S. Brockie v. Department of Veterans Affairs
01A30187
03-02-04
.
Elisabeth S. Brockie,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A30187
Agency No. 98-0253
DECISION
On September 26, 2002, Elisabeth S. Brockie (hereinafter referred to as
complainant) filed an appeal from the August 29, 2002, final decision of
the Department of Veterans Affairs (hereinafter referred to as the agency)
awarding attorney's fees. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is MODIFIED.
In EEOC Appeal No. 01996411 (May 30, 2001), the Commission found that
the agency discriminated against complainant based on sex when she was
given a low performance evaluation and her three-year appointment as a
Pathologist was not renewed. We ordered make-whole relief including,
inter alia, back pay and benefits. In December 2001, complainant filed
a Petition for Enforcement seeking the full cost of replacement health
insurance and payment of a $6,000 book fund allowance afforded to some
medical staff. In EEOC Petition No. 04A20005 (June 19, 2002), complainant
was awarded reimbursement for health insurance coverage and reasonable
attorney's fees for services in connection with the instant petition;
we denied the book allowance for reasons set forth in that decision.
Pending before us herein is an appeal from the final agency decision on
attorney's fees (FAD), which reduced complainant's total fee request
by approximately 34%. The agency acknowledged that complainant was a
prevailing party and entitled to reasonable attorney's fees and costs;
that the procedural precedents for the fee request were in order; and
that the hourly rate of $200 per hour was appropriate. The agency also
granted complainant's request for costs of $129.06 and for 7.8 hours,
or $1,560, for preparation of the fee petition. At issue, therefore,
is the 17.65 hours ($3,530) claimed for preparation of the petition for
enforcement. The agency granted half, or 8.825 hours, since complainant
had prevailed on one of two issues raised in the petition. Complainant,
however, asserts that the two issues had common core issues arising
from her claim of sex discrimination and could not easily be divided.
In addition, she claimed that the successful health insurance issue
was much more significant and required more work than the issue seeking
payment of the book allowance.
Title VII and the Commission's regulations authorize the award of
reasonable attorney's fees and costs to a prevailing complainant.
29 C.F.R. � 1614.501(e); see also EEOC's Management Directive 110
(November 9, 1999) Chapter 11 (MD-110). The starting point in calculating
attorney's fees is the number of hours reasonably expended multiplied by
a reasonable hourly rate. Id. This result is the "lodestar," and there
is a strong presumption that this amount represents the reasonable fee.
Id.; Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). While a strong
presumption exists, this amount may be affected by the degree of
success of the claim. Id; see Farrar v. Hobby, 506 U.S. 103 (1992).
In determining the degree of success, we consider all relief obtained
in light of the complainant's goals, and, if a complainant achieved only
limited success, s/he should recover fees that are reasonable in relation
to the results obtained. Hensley v. Eckerhart, supra; Cerny v. Department
of the Navy, EEOC Request No. 05930899 (October 19, 1994); see MD-110.
While a reasonable fee should not be determined simply by mathematical
formula, hours spent on unsuccessful claims should be excluded from
the amount of a reasonable fee. Hensley v. Eckerhart, supra. Further,
it is the burden of the party seeking to adjust the lodestar, either up
or down, to justify any deviation.
Complainant has presented various approaches to consider her success to
justify a higher fee award. Nevertheless, while we are not persuaded that
she is entitled to the full amount, we are convinced that her success
in recovering the cost of replacement health insurance was considerably
more than awarded by the agency. More particularly, in reviewing the
fee request, we note that substantially more time was expended on the
health insurance issue and that the success on this issue resulted in
a much larger recovery than was lost by her claim for the book advance.
Consequently, based on Commission policy and precedent, we find that a
more proper reduction for preparation of the petition is 20%.
CONCLUSION
Accordingly, the agency's decision is MODIFIED, and the agency is directed
to comply with the Order, below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
A. Within 30 days of the date this decision becomes final, the agency
shall pay complainant $4,513.06 for attorney's fees and costs.
B. 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. Copies of all
submissions shall be served on complainant.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 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. � 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. � 1614.501.
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 (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. � 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
____03-02-04______________
Date