Goldie S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 20, 2019

0120181594 (E.E.O.C. Sep. 20, 2019)

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

Goldie S.,1
Complainant,

v.

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

Appeal No. 0120181594

Agency No. 4G350007916

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the Agency’s March 6, 2018, final decision concerning attorney’s
fees for a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. § 2000e et seq. The Agency’s decision awarding attorney’s fees is MODIFIED.

BACKGROUND

During the period at issue, Complainant worked as a Lead Sales Service Associate at the
Agency's facility in Birmingham, Alabama.

Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process and on
June 8, 2016, Complainant and the Agency entered into a settlement agreement to resolve the
matter. The settlement agreement provided, in pertinent part, that:

[Complainant] agrees with management that she will be given help on the front
window on the first [and] third of the month and on holidays as warranted. Both
parties agree that this resolves the issues of this dispute.

Complainant alleged that the Agency was in breach of the settlement agreement, and requested

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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that the Agency reinstate her underlying complaint. Specifically, Complainant alleged that the
Agency failed to provide her help on various dates such as August 1, August 3, and September 1,
2016. Complainant stated that she requested help the day after the holiday and not on the holiday
itself because the post office was closed. Complainant stated that she had requested help on
Mondays and Fridays. Finally, Complainant stated that the agreement read by the mediator was
different than the settlement agreement she signed.

In its decision dated December 15, 2016, the Agency concluded that it was not in breach of the
agreement. The Agency stated that "although [Complainant] and the management officials are
not in agreement that [Complainant was] provided assistance on July 1, August 1, or August 3,
2016, all agree that [Complainant has] consistently received window assistance after [she]
emailed [a named Manager] on August 29, 2016." Based on the foregoing, the Agency, in its
final decision, found that any alleged breach had been cured.

Complainant appealed to this Commission. In EEOC Appeal No. 0120171073 (April 17, 2017),
this Commission found that the settlement agreement was too vague to determine if the Agency
complied with its terms and that the agreement was devoid of any substantive, specific benefit to
Complainant. As such, the decision held that the settlement agreement was void for lack of
consideration and reversed the Agency’s final decision. Susan S. v. United States Postal Serv.,
EEOC Appeal No. 0120171073. The decision ordered the Agency to reinstate the underlying
complaint from the point processing ceased. Id. Additionally, the decision noted that if
Complainant was represented by an attorney, she was entitled to an award of reasonable
attorney's fees incurred in the processing of the instant complaint. Id. This Commission
instructed the Agency to process the claim for attorney's fees in accordance with 29 C.F.R.
§1614.501. Id.

Complainant’s attorney submitted a fee petition to the Agency on May 22, 2017. The fee petition
consisted of an affidavit from Complainant’s attorney, two affidavits from attorneys licensed to
practice in Alabama, and a billing statement. The petition requested $12,600.00 for 36 hours of
work performed at the rate of $350 per hour incurred since July 6, 2016. The petition stated
Complainant’s attorney did not incur costs as a result of his representation of Complainant.

Thereafter, on September 20, 2017, Complainant appealed to this Commission regarding the
Agency's failure to provide fees and costs for her attorney as ordered in the Commission's
decision in EEOC Appeal No. 0120171073. This Commission found that it could not determine
from the record if the Agency had processed Complainant's claim for fees. Goldie S. v. United
States Postal Serv., EEOC Appeal No. 0120180128 (February 9, 2018). Therefore, we
remanded the matter and ordered the Agency to process the claim for attorney's fees in
accordance with 29 C.F.R. § 1614.501. Id. We instructed the Agency to provide Complainant
with a final decision regarding her claim for attorney's fees within 45 calendar days from the date
our decision was issued. Id.
On March 6, 2018, the Agency issued a final decision concerning Complainant’s entitlement to
attorney’s fees. Upon review of Complainant’s fee petition, the Agency disallowed 20 hours of
legal work which it determined either occurred before counsel’s notification of representation
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was submitted to the Agency or unrelated to this appeal (Agency found it was related to
Complainant’s representation on another EEO case). For the remainder of the 16 hours, the
Agency applied reductions to individual entries instead of applying an across-the-board
reduction. The Agency allowed 12 hours billed as reasonable. Additionally, the Agency reduced
the hourly rate from $350 to $275, finding that the two affidavits in support of his hourly rate
were insufficient and $350 per hour was excessive. Additionally, the Agency stated that while
the Alabama Bar does not publish hourly fact sheets, a review of the Mississippi Bar 2016
Economic Survey indicates that only 4.5% of the respondents charged $350 per hour and that the
greatest majority (17.6%) charged $200 per hour. In total, the Agency awarded $3,300 (12 hours
at $275 per hour) in attorney’s fees.

Complainant filed the instant appeal regarding the Agency’s decision on attorney’s fees. On
appeal, Complainant’s counsel challenged the Agency’s final decision as an arbitrary and
capricious reduction to the affidavit for attorney’s fees by over eight thousand dollars based on
erroneous premises and mistaken interpretations of law. Complainant’s counsel admitted that he
represents her in her current and ongoing EEO complaints against the Agency which involve two
or more active, ongoing claims for discrimination. Furthermore, Complainant’s counsel also
argued that, contrary to the Agency’s report of compliance submitted to this Commission, as of
the date of his appellate brief, he had yet to receive any payment for the undisputed amount
awarded by the Agency in their final decision despite his submission of a W-9 form.

In response, the Agency argues that the fees awarded by the Agency were appropriate and just in
light of Complainant’s failure to prove by specific evidence his entitlement to his requested fees.
Additionally, the Agency countered that on May 21, 2018, a check in the amount of $3,300,
which was his total fee entitlement, was delivered to the address of record for Complainant’s
counsel. The Agency supplied a copy of the letter sent with the check as well as the tracking
information for the delivery.

ANALYSIS AND FINDINGS

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 EEO Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 11-1 (Aug. 5, 2015). Fee awards are typically
calculated by multiplying the number of hours reasonably expended times a reasonable hourly
rate, an amount also known as a lodestar. See 29 C.F.R. §1614.501(e)(ii)(B); Blum v. Stenson,
465 U.S. 886, 899 (1984); Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).

All hours reasonably spent in processing the complaint are compensable, but the number of
hours should not include excessive, redundant or otherwise unnecessary hours. EEO MD-110 at
11-15. A reasonable hourly rate is based on prevailing market rates in the relevant community
for attorneys of similar experience in similar cases. Id. at 11-6. An application for attorney’s fees
must include a verified statement of attorney’s fees accompanied by an affidavit executed by the
attorney of record itemizing the attorney’s charges for legal services. Id. at 11-9.

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While an attorney is not required to record in detail the way each minute of his or her time was
expended, the attorney does have the burden of identifying the subject matters on which he or
she spent his or her time by submitting sufficiently detailed and contemporaneous time records to
ensure that the time spent was accurately recorded. See Complainant v. Dep’t of the Treasury,
EEOC Appeal No. 07A10035 (May 6, 2003). The attorney requesting the fee award has the
burden of proving, by specific evidence, entitlement to the requested fees and costs. Complainant
v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003).

We find that Complainant prevailed in EEOC Appeal No. 0120171073, in which we found the
settlement agreement was void, and therefore, she is entitled to attorney’s fees. Based on the
success of Complainant’s attorney in this matter, Complainant should only receive the amount of
fees that is reasonable in relation to the results obtained. Hensley, at 435.

First, we address the hourly rate which the Agency reduced from $350 to $275. A reasonable
hourly rate is a rate based on “prevailing market rates in the relevant community” for attorneys
of similar experience in similar cases. Complainant v. Dep't. of Veterans Affairs, EEOC Request
No. 05960748 (July 30, 1998) (quoting Blum v. Stenson, 465 U.S. 886 (1984)). In his fee
petition, Complainant’s counsel argued $350 per hour is customary for an attorney before the
EEOC in the Birmingham, Alabama area, practicing for sixteen years. To support the fee
petition, counsel provided affidavits of two attorneys licensed to practice law in Alabama and
with experience in employment discrimination cases. Both attorneys attested that $350 per hour
is a reasonable rate for an attorney in Alabama in that practice field. Moreover, one affidavit
from a retired federal judge stated he had previously awarded that rate to similarly-qualified
counsel for prevailing parties in Title VII cases. The Agency discounted counsel’s rate and,
mysteriously, compares the hourly rate noted in the Mississippi Bar 2016 Economic Survey for
all Mississippi attorneys, regardless of experience or area of practice, to Complainant’s fees
arising from work done in Birmingham, Alabama. We note that this Commission has previously
awarded hourly rates above Complainant’s hourly rate ($400/hour) to an attorney practicing in
Birmingham, Alabama with a few more years in the employment law field based on an affidavit
of an employment law attorney. See Janel B. v. Dep’t of Justice, EEOC Appeal No. 0120132683
(Nov. 4, 2015). Accordingly, in this case, we find that Complainant’s attorney’s reasonable
hourly rate is $350, and award that rate.

Next, we address the billable hours awarded by the Agency. Complainant billed a total of 36
hours and the Agency awarded 12 hours.

The Agency disallowed 8.50 hours because they occurred prior to the first notice to the Agency
by Complainant that he was represented. EEOC Regulation 29 C.F.R. §1614.501(e)(1)(iv)
provides in part that attorney's fees shall be paid for services performed by an attorney, provided
that the attorney provides reasonable notice of representation to the Agency, Administrative
Judge, or Commission, except that fees are allowable for a reasonable period of time prior to the
notification of representation for any services performed in reaching a determination to represent
a complainant. Here, we find 2 hours for initial consultation and records review on October 10,
2016, prior to the notification of representation on October 11, 2016, is reasonable. We agree
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with the Agency’s finding to disallow an additional 8.50 hours which was performed prior to the
notification of representation.

The Agency also disallowed 11.50 hours as unrelated to Complainant’s settlement breach. In a
review of Complainant’s fee petition and the Agency’s final decision, we agree these three
entries totaling 11.50 hours are unrelated and should not be awarded to counsel.

Additionally, the Agency reduced the remaining billable hours from 14 hours to 12 hours. We
find no reduction of these 14 hours to be appropriate. The Agency apportioned amounts it
determined were reasonable expenditures based on the length of the documents noted in the
billing statement and based on an estimate of the time counsel consulted with Complainant on
each matter. For instance, one entry on February 10, 2017, was listed as one billable hour for
“Consult w/Client/docketing statement”. The Agency did not presume as to how long
Complainant and counsel consulted; rather, it reduced the one hour to .75 hour noting that the
docketing statement was just over a page in length.

Thus, we find that reasonable attorney’s fees in this matter are $5,600 (16 hours x $350/hour).

CONCLUSION

Accordingly, it is the decision of the Commission to MODIFY the Agency’s final decision
addressing the amount of attorney’s fees. We conclude that Complainant is entitled to attorney’s
fees in the amount of $5,600. The Agency shall comply with the Order herein.

ORDER

To the extent it has not already done so, within 60 days of the date this decision is issued, the
Agency shall pay Complainant $5,600 in attorney’s fees.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission’s Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The report
shall include supporting documentation verifying that the corrective action has been
implemented.

ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), 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)
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calendar days of the date this decision was issued. 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 (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
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shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (T0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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
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the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

__________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 20, 2019
Date