01A13878
08-07-2002
Frances M. Sermeno, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Frances M. Sermeno v. Department of the Army
01A13878
8/7/02
.
Frances M. Sermeno,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A13878
Agency No. BODWFO930D0190
Hearing No. 110-95-8383X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission MODIFIES the agency's attorney
fees award.
Previously, complainant had been employed as a GS-697-04 Medical Clerk,
at the Winn Army Hospital, in Fort Stewart, Georgia, but was removed
from this position in 1991. Complainant filed a complaint (hereafter
referred to as Complaint # 1) in which she alleged that the agency
discriminated against her on the bases of disability (hearing impairment)
and in reprisal for prior EEO activity when she was neither referred
nor selected for a number of positions.
The agency accepted the complaint for investigation and complied
with all of our procedural and regulatory prerequisites. Thereafter,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). Subsequently, the AJ remanded the case to the agency to further
investigate complainant's allegation that she had been discriminatorily
non-selected for the positions at issue and not just non-referred. The AJ
further directed the agency to investigate a possibly vacant Automation
Clerk position, in an attempt to resolve the complaint. When complainant
was informed that she was not selected for the Office Automation
Clerk, (OAC) GS-0326-03 position, she filed a second EEO Complaint
(hereafter Complaint No. 2) on November 29, 1994. At the conclusion
of the investigation, the agency forwarded the Report of Investigation
(ROI) for both complaints to the EEOC for adjudication. Thereafter, the
cases were assigned to an AJ, who consolidated the cases for a hearing.
The record reflects one agency number for the two consolidated cases.
In his Recommended Decision (RD), the AJ made a finding of no
discrimination with respect to Complaint # 1, but made a finding of
reprisal and disability discrimination with respect to complainant's
non-selection for the OAC position challenged in Complaint # 2. The AJ
concluded that the agency was not particularly sensitive to disabilities.
The agency issued a FAD on June 7, 1996, that accepted the AJ's finding
of no discrimination in Complaint # 1 and rejected the AJ's finding of
discrimination in Complaint # 2. On appeal, the Commission reversed the
agency's ruling with respect to Complaint #2, and ordered it among other
things to make an award of reasonable attorney's fees incurred in the
processing of the complaint. See Frances M. Sermeno v. Department of
the Army, EEOC Appeal No. 01965448 (September 24, 1998). This decision
was reaffirmed when the Commission denied the agency's request for
reconsideration. See Frances M. Sermeno v. Department of the Army,
EEOC Request No. 05990051 (January 25, 2001).
On or around February 22, 2001, complainant's attorney submitted a claim
of Attorney's Fees and Cost totaling $9706.80 to the agency. The Attorney
asserted that his hourly fee was $165.00 per hour and he claimed 58 hours
of legal services. The claim also included $136.80 in costs. The agency
did not object to the hourly rate claimed nor did it object to the amount
of legal costs claimed by complainant's attorney. However, in a final
decision dated April 17, 2001, the agency decided that complainant's
attorney was only entitled to $5736.80 in attorney's fees and costs.
In reaching its decision, the agency decided that the billable hours
claimed by the attorney were excessive. Although the agency declined
to engage in a line by line analysis of the attorney's claim, it noted
that the time billed for the various stages of the administrative process
was inconsistent. Specifically, it noted that while the attorney billed
only 17 hours for the time spent up to the EEOC administrative hearing,
he billed 16 hours to prepare and submit a four page double-spaced
appeal brief. Similarly, the agency noted that the attorney billed 23
hours to prepare a response to its request for reconsideration.
According to the agency, neither the appeal brief nor the response to its
request for reconsideration raised any new issues. In fact, the agency
states that these documents merely reiterated what was previously stated
by the Administrative Judge of the EEOC or by it in prior decisions.
Based on these assertions, as well as the fact that complainant only
prevailed in one of the two complaints that she filed, the agency
applied a 40% reduction to the total number of hours claimed by the
attorney for his services. This across the board reduction led to the
agency's decision that the attorney was only entitled to payment for 35
of the hours billed at $160.00 an hour which led to a sub-fee award of
$5600.00.<1> When the agency added the $136.80 in costs to this figure,
it derived its total award of $5736.80.
Complainant's attorney did not raise any arguments or contentions in
filing his appeal from the final agency decision. The agency submitted
a response to the appeal, in which it merely reiterates the grounds set
forth in the final agency decision.
ANALYSIS AND FINDINGS
Complainant, as a prevailing party in a non-selection case, is
entitled to an award of reasonable attorney's fees. EEOC Regulation
29 C.F.R. 1614.501(e)(1)(ii). To determine the proper amount of the
fee, a lodestar amount is reached by calculating the number of hours
reasonably expended by the attorney on the complaint multiplied by a
reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley
v. Eckerhart, 461 U.S. 424 (1983). Reasonable hourly rates are measured
by the prevailing market rates in the relevant community Blum v. Stenson,
465 U.S. at 895; Brent v. Department of the Air Force, EEOC Request
No. 05901175 (January 8, 1991). The best evidence of a reasonable hourly
rate for the community in general is the hourly rate customarily charged
by the attorney or law firm for fee-paying clients. National Association
of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1325
(D.C. Cir. 1982); Cooley v. Department of Veterans Affairs, EEOC Request
No. 05960748 (July 30, 1998); Della v. General Services Administration,
EEOC Request No. 05920094 (April 14, 1992).
In the instant case, we note that the FAD found as reasonable, the hourly
rate requested by the attorney and the legal costs claimed. However,
the FAD determined that the number of hours expended by the attorney
on the case was not reasonable and it also applied an across the board
reduction of the number of hours claimed by the attorney on the grounds
that complainant only prevailed on one of the two complaints filed.
We will examine the propriety of both of these reasons articulated by
the agency for reducing the complainant's attorney fee claim.
Hours Reasonable Expended
In determining the number of hours reasonably 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." 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. National
Association of Concerned Veterans v. Secretary of Defense, supra. 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." Hensley, 461 U.S. at 434.
While we decline to engage in a line by line analysis of the requests,
we make the following general observations: complainant's attorney
billed a total of four hours on March 22, 1996, for �retained and
client conference.� The attorney also claimed 12 hours for research
and preparation of the appeal brief and 15 hours for the research
and preparation of his brief in response to the agency's request for
reconsideration.<2> We find all of these claims to be excessive. First,
we note that complainant's attorney did not submit any documentation
in support of any of his claims. The Commission has previously found
that an attorney may reasonably expend up to two hours to determine
whether to represent a complainant. See Vincent v. Department of the
Army, EEOC Request No. 05941012 (February 27, 1996); see also Walker
v. Department of Agriculture, EEOC Appeal No. 01944314 (August 4, 1995).
As appellant's attorney failed to specify how the time claimed on March
22, 1996, was spent, he is entitled to only two hours. Similarly, we
agree with the agency's finding that given the straightforwardness of this
non-selection case, no more than eight hours each was needed for research
and preparation of the appeal and the request for reconsideration briefs.
Accordingly, we disallow four hours for the time claimed for the appeal
brief, and seven hours for the time claimed for the response to the
agency's request for reconsideration. In conclusion, we disallow 13
hours of the time claimed by complainant's attorney as unreasonable
and excessive.
Across the Board Reduction
As aforementioned, in addition to the disallowances discussed above,
the agency FAD held that because complainant prevailed on only one of
her two complaints, it was appropriate to apply a 40% across the board
reduction of the hours claimed by her attorney. We find that under
the circumstances of this case any such across-the-board reduction is
inappropriate.
The fact that the complainant did not prevail in her first complaint
does not, in itself, justify a reduction in the hours expended where
the claims are intertwined, and it would be impossible to segregate the
hours involved in each claim. It is true that attorney's fees may not
be recovered for work on unsuccessful claims. Hensley, 461 U.S. at 433.
Courts have held that fee applicants should exclude time expended on
"truly fractionable" claims or issues on which they did not prevail. See
National Association of Concerned Veterans (NACV) v. Secretary of Defense,
675 F.2d 1319, 1337 n.13 (D.C. Cir. 1982). Claims are fractionable or
unrelated when they involve "distinctly different claims for relief that
are based on different facts and legal theories." Hensley, 461 U.S. at
434-35. Thus, in cases where claims are distinctly different, "work on an
unsuccessful claim cannot be deemed to have been expended in pursuit of
the ultimate result achieved." Id. at 435 (citation omitted). However, in
cases where a claim for relief involves "a common core of facts or will be
based on related legal theories" a fee award should not be reduced simply
because the plaintiff failed to prevail on every contention raised in the
lawsuit. Id. "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." See EEO
MD-110, Ch. 11, Sect. 6 (A)(7) (citation omitted), see also Lisa K. Layman
v. United States Postal Service, EEOC Appeal No. 01995568 (April 4, 2002).
Here the claims on which complainant did not prevail are not
fractionable. They all relate to her allegation that she was not selected
and referred for any of the subject positions because of her disability
and reprisal. The complaints each arose from this common factual core.
It cannot be said that the claims on which complainant did not prevail are
"distinct in all respects" from the claim on which she was successful. We
conclude that, with the exceptions noted above, complainant should be
fully reimbursed for all reasonable attorneys fees, despite the fact
that she was not successful on all issues.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we modify the FAD to comply
with the order below.
ORDER
The agency is ordered to pay complainant's attorney (counsel), within
30 days after receipt of this decision, his attorney fees of $7425.00
(i.e., 45 hours at $165.00 per hour), and $136.80 in cost for a total
of $7561.80. To the extent the agency has already paid the attorney's
fees and costs awarded in the underlying FAD, the agency shall deduct
that amount.
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 that the
agency paid attorney fees and costs.
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
8/7/02
__________________
Date
1 In its FAD, the agency agreed that the hourly rate of $165.00 claimed
by complainant's attorney was reasonable. However, in computing the fee
due to complainant's attorney for his services, the agency used a hourly
rate of $160.00 instead of $165.00. We conclude that the different hourly
rate figures in the agency's FAD is a mere clerical error, and that the
base rate for calculating the lodestar in this case is $165.00 an hour.
2 We note that our figures of the time claimed by counsel for preparing
the appeal and response to the agency's request for reconsideration
briefs, differ from that cited by the agency in its FAD. We attribute
this difference to the fact that we did not include in our total time
taken to complete the tasks, the time claimed by counsel for client
conferences.