Glenda Wynn, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 8, 2007
0120063627 (E.E.O.C. Feb. 8, 2007)

0120063627

02-08-2007

Glenda Wynn, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.


Glenda Wynn,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01200636271

Agency No. TD 02-1207

DECISION

Complainant filed an appeal from the agency's final decision relating

to her equal employment opportunity (EEO) complaint claiming 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(a).

During the relevant time, complainant was employed as a Bankruptcy

Specialist, GS-1101-09, at the agency's Small Business/Self-Employed

Division in Atlanta, Georgia. Complainant's attorney filed a formal

complaint on complainant's behalf on June 18, 2002, claiming that

complainant was the victim of unlawful employment discrimination on the

bases of race, disability and in reprisal for prior EEO activity when

management denied her request to work flexiplace three days per week.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). The record reflects that the EEOC Atlanta District Office

received complainant's request for a hearing on January 14, 2003.

On January 21, 2003, the agency was ordered to produce complainant's file

within fifteen days or explain why it could not do so. Without receiving

a response from the agency, the AJ assigned to the case issued a February

5, 2003 Notice and Order to Show Cause for the agency to respond within

fifteen days regarding why it should not be sanctioned for its failure to

produce the complaint file or Report of Investigation (ROI). The Order

stated that sanctions, including a decision in complainant's favor,

could be issued if good cause was not shown. When the agency did not

respond, the AJ issued a decision on March 13, 2003, in complainant's

favor as a sanction for the agency's failure to obey the two orders

to produce the complaint file and ROI. The AJ scheduled a hearing to

determine relief on April 9, 2003, which was rescheduled to July 2, 2003.

Complainant's attorney did not appear at the July 2, 2003 hearing, but

instead submitted a "List of Harm." Complainant was the sole witness

at the hearing on relief. The AJ issued a bench decision awarding

complainant $1,000.00 in compensatory damages. The AJ found complainant

was not entitled to back pay or front pay and did not award attorney's

fees. The AJ's decision was mailed to the parties on August 27, 2003.

On October 14, 2003, the agency issued a final order implementing the AJ's

decision on compensatory damages. On appeal, the Commission affirmed the

agency's final order concerning compensatory damages. The Commission,

however, modified the agency's final order concerning attorney's fees

and other relief. On remand, the agency was ordered to pay complainant

$1,000.00 for compensatory damages; restore all leave used by complainant

as a result of its denial of her request for reasonable accommodation;

reimburse complainant for all Leave Without Pay taken by complainant as

a result of its denial of her request for a reasonable accommodation;

provide complainant an opportunity to submit a verified statement of

attorney's fees and costs, and issue a decision on attorney's fees;

post a copy of posting order in its facility; and provide appropriate

EEO training to all agency officials responsible for the discriminatory

action in the instant matter. Wynn v. Department of the Treasury,

EEOC Appeal No. 01A40791 (March 28, 2005).

On April 28, 2006, the agency issued the instant final decision on the

issue of attorney's fees. The agency stated that on May 14 and 23, 2005,

complainant's attorney submitted two affidavits concerning attorney's

fees and costs. The agency stated that in his May 14, 2005 affidavit,

the attorney stated that he had represented complainant in her formal

complaint since June 1, 2002, and that he was admitted to practice law

in all courts of the State of Mississippi. The agency stated that in his

May 23, 2005 affidavit, the attorney requested $4,225.12 for 32.99 hours

of work on complainant's case from May 25, 2002 to November 10, 2003.

The agency stated that the attorney claimed that his hourly rate was

$125.00 per hour, less than half of the usual and prevailing rate for

such representation by licensed attorneys in the metropolitan Atlanta,

Georgia area.

In its final decision on the fee request, the agency found that

complainant's attorney's hourly rate of $125.00 was reasonable.

The agency, however, determined that the Mississippi Bar Association

Directory indicated that complainant's attorney was admitted to the bar

on August 12, 1968, but that he is currently in an "inactive" status,

a status he held while representing complainant. Therefore, the agency

concluded that he was not entitled to collect on his claim for attorney's

fees and costs. In the alternative, assuming complainant's attorney

could collect attorney's fees, the agency determined that the fees to

be awarded should be reduced by $228.75 [March 4, 2005 ($125.00), March

5, 2005 ($31.25) March 18, 2005 ($31.25) and March 20, 2005 ($41.25)]

because this amount represented work charged that was unrelated to

the instant EEO complaint, but rather was incurred while working on

complainant's bankruptcy case.

Title VII authorizes the award of reasonable attorney's fees, including

for an attorney's processing of a compensatory damages claim. 29 C.F.R. �

1614.501(e). To establish entitlement to attorney's fees, complainant

must first show that he or she is a prevailing party. Buckhannon Bd. and

Care Home Inc. v. West Virginia Dept. of Health and Human Resources, 532

U.S. 598 (2001). The fee award is ordinarily determined by multiplying

a reasonable number of hours expended on the case by a reasonable hourly

rate, also known as a "lodestar." See 29 C.F.R. � 1614.501(e)(2)(ii)(B);

Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861

(July 17, 1998). Complainant is only entitled to an award for time

reasonably expended. It does not always follow that the amount actually

expended is the amount of time reasonably expended. Elvin v. Department

of Labor, EEOC Request No. 01943425 (August 31, 1995). 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, EEOC Appeal No. 01966861.

In the instant case, we are unpersuaded by the agency's argument that

complainant was not entitled to recover attorney's fees based on his

status as an "inactive" member of the Mississippi Bar Association.

There is a strong presumption of entitlement to attorney's fees for the

party prevailing in an EEO case. The agency has provided no support for

the proposition that bar status (active or inactive) has an effect on

entitlement to attorney's fees. We find, after a review of the record,

it is undisputed that complainant's attorney is a member in good standing

of the Mississippi bar. Moreover, the agency's argument in this regard

is somewhat disingenuous as it conceded in its brief that he was employed

by the agency for 30 years practicing law as an "Attorney (Estate Tax)"

in inactive bar status, which was fully allowable by the agency.

Regarding the issue of the fee amount, we note that the agency does

not dispute the hourly rate charged by complainant's attorney ($125.00

per hour). A review of the record reflects that complainant's attorney

requested compensation for a total of 32.99 hours of work at $125/hour,

for a total of $4,225.12. We grant, however, the agency's request of a

reduction of $228.75 charged for services more related to complainant's

bankruptcy action than the instant EEO complaint. Therefore, we find

that complainant is entitled to $3,996.37 in attorney's fees.

For the reasons set forth above, we REVERSE the agency's final order

denying complainant's request to recover attorney's fees and costs and

award complainant $3,996.37 in attorney's fees. We REMAND this case

to the agency to undertake these remedial measures as set forth in the

ORDER below.

ORDER

The agency is ORDERED to take the following remedial action:

Within thirty (30) calendar days of the date that this decision becomes

final, the agency shall pay complainant the amount of $3,996.37 in

attorney's fees.

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 of the

agency's payment of the attorney's fees.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

February 8, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

??

??

??

??

2

0120063627

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

6

0120063627

7

0120063627