0120062867
05-02-2008
Jeffrey T. Hunter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jeffrey T. Hunter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200628671
Hearing No. 160-2001-08120X
Agency No. 1B-012-0028-00
DECISION
On March 24, 2006, complainant filed an appeal from the agency's
March 1, 2006 final order concerning his equal employment opportunity
(EEO) complaint. This appeal concerns only the issue of additional
attorney's fees incurred by complainant in the pursuit of his petition
for enforcement in Jeffrey T. Hunter v. United States Postal Service,
EEOC Petition No. 04A60007 (January 13, 2006). For the following reasons,
the Commission MODIFIES the agency's final order.
Previously, in Jeffrey T. Hunter v. United States Postal Service,
EEOC Appeal No. 07A40073 (September 9, 2004), request to reconsider
denied, EEOC Request No. 05A50058 (November 8, 2004), the agency was
ordered to provide relief to complainant which included, among other
relief, the payment of appropriate back pay for overtime opportunities
discriminatorily denied him, based on his disability and retaliation
for prior protected activity arising under the Rehabilitation Act,
between March 2000 and March 2002. Complainant filed a petition for
enforcement with the Commission alleging that the agency failed to
properly calculate and pay the overtime ordered. In Jeffrey T. Hunter
v. United States Postal Service, EEOC Petition No. 04A60007 (January
13, 2006), we clarified the order for calculation of the back pay due
complainant, found the agency had not complied with our order in EEOC
Appeal No. 07A40073, and ordered the agency to comply. We further ordered
the agency to pay attorney's fees and costs incurred in pursuit of the
enforcement action.
Complainant submitted a petition to the agency for attorney's fees in
the amount of $7,080.00 which represented 47.2 hours at an hourly rate
of $150.00.2 The agency's final decision found that the rate of $150.00
per hour represented a reasonable rate. However, the agency determined
that in a prior submission to the Commission, dated November 10, 20053,
complainant had requested a total of 27 hours at the same rate, for a
total attorney's fee award of $4,050.00. The agency found that the
$4,050.00 request was determined at a point in time closer to when the
work was actually performed and before complainant prevailed in his
petition for enforcement. Moreover, the agency found that some fees
in the petition appeared vaguely described, redundant, and excessive.
Accordingly, the agency found that this figure of $4,050.00 represented
a reasonable award of attorney's fees.
On appeal, complainant states that he did not submit a fully documented
and verified fee petition during the enforcement action. The figure
stated in the petition for enforcement was an estimate of the fees
complainant had incurred up to that time. When complainant's fees were
actually broken down into the separate tasks performed, and the time for
each task tallied as required for the verified fee petition submitted
to the agency, the total number of hours came to 47.2 hours.
With respect to the specific fees that the agency found vaguely described,
redundant, or excessive, complainant explains, among other arguments, two
of the petition submissions. The first example provided by complainant
is:
February 13-14: Review of approximately 14 lbs. of supporting documents
supplied by the compliance officer to support its alleged compliance;
discussion with client concerning submitted documents; submission of
response to the compliance officer. (9.2 hours)
Complainant states that the agency's documents were composed of cryptic
agency jargon and codes, the purpose of which was to establish that
complainant had been paid overtime comparable to other employees.
The documents, complainant states, were accompanied by an attestation of
the responsible management official found to have discriminated against
complainant. Complainant states that both the records and the attestation
required close scrutiny to determine whether the agency's representative
had committed perjury and to determine whether the records were correct.
The second example provided by complainant is:
July 5-6: Review of Agency's Third Report of Alleged Compliance;
comparison with reference to previously submitted agency documents and
notes. (4.5 hours)
Complainant comments that these documents, again, permeated with agency
time-keeping codes, required close scrutiny and comparison with the
previous 14 pounds of documents, to determine whether these documents
supported the agency's alleged compliance or showed the agency had not
complied with the prior order. The hours expended, complainant states,
were both reasonable and essential for complainant to prevail in the
enforcement action. The additional 1.5 hours of consultation with
complainant and another agency employee, complainant adds, were spent
confirming the conclusions suggested by the close review of the agency's
overtime records.
Additionally, complainant notes that the case file, at the time of the
filing of the petition for enforcement, contained over 80 pounds of
documents and represented six years' work to finally achieve payment of
the pay complainant had been denied due to discrimination. Complainant
argues that the total sum requested, $7,080.00, represents both reasonable
hours expended and a reasonable hourly rate, given the attorney's skill
and experience. Accordingly, complainant requests payment for the
verified attorney's fees in the amount of $7,080.00.
ANALYSIS AND FINDINGS
The agency is required to award attorney's fees for the successful
processing of an EEO complaint in accordance with existing case law and
regulatory standards. Bernard v. Department of Veterans Affairs, EEOC
Appeal No. 01966861 (July 17, 1998). Attorney's fees are computed by
determining the lodestar, i.e., the number of hours reasonably expended
multiplied by a reasonable hourly rate. 29 C.F.R. � 1614.501(e)(2)(ii)(B);
Equal Employment Opportunity Commission Management Directive (MD) 110 at
11-5 (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). All hours
reasonably spent in processing the complaint are compensable, and the
number of hours should not include excessive, redundant or otherwise
unnecessary hours. MD 110 at 11-5 (citing Hensley, 461 U.S. at 434; and
Bernard, EEOC Appeal No. 01966861). A reasonable hourly rate is based on
prevailing market rates in the relevant community for attorneys of similar
experience in similar cases. MD-110 at 11-6 (citing Cooley v. Department
of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998)).
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. MD-110
at 11-9. A verified statement of fees must include a list of services
rendered itemized by date, number of hours, detailed summary of the task,
rate, and attorney's name; documentary evidence of the reasonableness
of hours, such as contemporaneous time records, billing records or
a reasonably accurate substantial reconstruction of time records;
and documentary evidence of the reasonableness of the rate, such as
an affidavit stating that the requested rate is the attorney's normal
billing rate, a detailed affidavit of another attorney in the community
familiar with the prevailing community rates for attorneys of comparable
experience and expertise, a resume, a list of cases handled, or a list
of comparable cases where a similar rate was accepted. Id. While the
attorney is not required to record in great detail the manner in which
each minute of his time was expended, the attorney does have the burden of
identifying the subject matters on which he spent his time by submitting
sufficiently detailed and contemporaneous time records to ensure that
the time spent was accurately recorded. Bernard, EEOC Appeal No. 01966861
(citations omitted).
We note that the agency specifically questions the additional of 20.5
hours billed in complainant's verified fee petition that apparently were
not included when complainant requested attorney's fees at the end of his
brief in support of his Petition for Enforcement. Accordingly, the agency
identified several charges that appear vague, redundant, or excessive.
We consider complainant's explanation for the difference in total hours
and note that the request for attorney's fees in November 2005, while
not identified as an estimate, was not made by verified fee petition and
did not include an itemized list of services rendered together with the
hours expended for each task as required by the Commission.
We find complainant's verified fee petition adequately describes the
tasks performed and complainant has provided reasonable explanations
for the time expended. We concur with complainant that the manner in
which time records are kept by the agency can require extensive review
by anyone untrained in the agency's style of timekeeping. We thus find
the hours expended by complainant's attorney in review and comparison
of the agency's evidence to be reasonable under the circumstances.
Reasonable attorney's fees for the work performed regarding the petition
for enforcement is $7,080.00. Complainant admits on appeal that he
has received $4,050.00 in attorney's fees from the agency for the
work performed regarding the petition for enforcement. Therefore, we
shall order the agency to pay complainant $3,030.00 in attorney's fees
($7,080.00 - $4,050.00).
CONCLUSION
We MODIFY the agency's final order and direct the agency to pay
complainant $3,030.00 in additional attorney's fees.
ORDER
Within 30 days of the date this decision becomes final, the agency shall
pay complainant $3,030.00 for attorney's fees. Evidence showing such
payment has been made shall be sent to the Compliance Officer referenced
herein.
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 (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
May 2, 2008
__________________
Date
1Due to a new data system, the Commission has re-designated the instant
case with the above- referenced appeal number.
2 Complainant's fee petition did not include any requests for costs.
3 This figure comes from complainant's prayer for relief filed in
connection with his Petition for Enforcement (dated November 10, 2005)
in which he also requests reasonable attorney's fees, which he states,
total $4,050.00 to date.
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0120062867
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062867