01a52553
11-29-2005
June Hironaka, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
June Hironaka v. United States Postal Service
01A52553
November 29, 2005
.
June Hironaka,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52553
Agency Nos. 4E-890-2117-93; 4E-890-1104-94
Hearing Nos. 340-95-3590X; 340-95-3906X
DECISION
Complainant timely initiated an appeal to the Commission from the agency's
final decision concerning the agency's award of attorney's fees.
During the relevant period, complainant was employed as a City Carrier at
the agency's North Las Vegas, Nevada facility. Complainant filed formal
EEO complaints with the agency on September 12, 1993, March 8, 1994,
June 17, 1994, and October 25, 1994, alleging that she was subjected to
unlawful 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 the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. After the agency completed its investigation of the
complaints, complainant requested a hearing before an EEOC Administrative
Judge (AJ).
Following a hearing on her complaints, the AJ issued a recommended
decision finding no discrimination. The agency adopted the recommended
decision of the AJ. Thereafter, complainant filed an appeal with the
Commission.
On March 27, 2001, the Commission issued a decision in the case of
Hironaka v. United States Postal Service, EEOC Appeal No. 01976665.
The Commission found that the agency had violated Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
when it retaliated against complainant for engaging in previous protected
EEO activity. As relief for her complaint, the Commission ordered the
agency to: (1) conduct sensitivity training for management officials
who had engaged in the retaliatory activity; (2) post a notice at the
relevant agency facility alerting the work force that unlawful employment
discrimination had occurred there; and (3) pay complainant attorney's
fees if appropriate.
Thereafter, in April of 2001, complainant's attorney filed a petition
with the agency requesting $56,250.00 in fees (calculated by multiplying
the attorney's then-current rate of $225.00 per billable hour by the
250 hours the attorney claimed to have spent representing complainant
on the matter) and $1,422.87 in costs (comprised of postage, telephone,
fax, travel, copying, research, and other miscellaneous expenses) for
work done in prosecution of her complaint.<1> In a July 3, 2001 final
decision, the agency agreed to pay the attorney only $1,585.72 in fees
and $116.57 in costs, for a total of $1,704.29. Complainant appealed
the agency's final decision to the Commission.
On March 29, 2002, the Commission issued a decision in the case of
Hironaka v. United States Postal Service, EEOC Appeal No. 01A14926.
The Commission noted complainant was successful in securing only
equitable relief in the form of training and notice-posting. In weighing
the ultimate remedial outcome against the relief originally sought
by complainant, the Commission concluded that the lodestar amount
for attorney's fees should be reduced by 40 percent. However, the
Commission determined a reduction in costs was not warranted. Thus, the
Commission ordered the agency, to the extent it had not already done so,
to pay complainant $35,172.87 ($56,250.00 x .60 in fees plus $1,422.87 in
costs), representing allowable attorney's fees and costs associated with
complainant's prosecution of her complaint. Further, in footnote six of
its decision, the Commission noted that complainant's attorney was also
entitled to recover fees and costs incurred in prosecuting the appeal.
Subsequently, on April 24, 2002, complainant submitted a timely fee
petition with the agency seeking $8,887.31 in attorney's fees and costs
associated with the April 2001 fee petition and the resulting March
29, 2002 Commission decision in EEOC Appeal No. 01A14926 which awarded
complainant the bulk of her attorney's fees claim.<2> The agency received
complainant's fee petition
on April 30, 2002, and failed to issue a final decision on the request
for attorney's fees and costs within sixty days of its receipt of the fee
petition as specified in 29 C.F.R. � 1614.501(e)(2)(ii)(A). Complainant
filed an appeal with the Commission on July 31, 2002, seeking attorney's
fees related to her previous appeal under EEOC Appeal No. 01A14926.
On November 12, 2003, the Commission issued a decision in the case of
Hironaka v. United States Postal Service, EEOC Appeal No. 01A24238.
The Commission noted that as complainant was the prevailing party in
the previous March 29, 2002 Commission decision, she is presumptively
entitled to attorney's fees associated with the litigation of that appeal.
See Hironaka v. United States Postal Service, EEOC Appeal No. 01A14926.
However, the Commission found the appeal was prematurely filed because
the record did not contain any evidence that the agency issued a final
decision on the issue of attorney's fees. The Commission ordered the
agency to issue a final decision in response to complainant's April 24,
2002 fee petition within 30 days from the date the Commission's decision
becomes final.
On February 2, 2004, the agency issued a final decision awarding
all costs requested in complainant's April 24, 2002 fee petition.
Complainant acknowledges that on March 31, 2004, the agency issued a
check in the amount of $8,887.31 for payment of all attorney's fees and
costs submitted in her April 24, 2002 fee petition.
The record reveals that on September 1, 2004, complainant submitted a
fee petition to the agency requesting attorney's fees in the amount of
$3,600.00 and costs in the amount of $230.64 for work done from April
2002, through September 1, 2004.
On November 22, 2004, the agency issued a letter stating that complainant
is not entitled to additional fees in this case. The agency noted
that in a September 22, 2004 letter, it advised that its February 2,
2004 final decision, awarding complainant $8,887.31 constituted her full
entitlement in this matter.
Complainant then filed the present appeal on December 29, 2004,
regarding the agency's November 22, 2004 denial of her September 1, 2004
fee petition. On appeal, complainant seeks a total award of $4,456.89,
comprised of (a) $3,600.00 in fees and $230.64 in costs for work performed
from April 2002, through September 1, 2004; and (b) $549.00 in fees and
$77.25 for work performed on the subject appeal from September 1, 2004,
through December 29, 2004. In her appeal brief, complainant claims
she is a prevailing party because her July 31, 2002 appeal resulted
in a November 12, 2003 Commission decision that directed the agency to
issue a final decision on her April 24, 2002 fee petition. Complainant
requests all attorney's fees and costs for the enforcement, compliance,
and appellate work performed from April 1, 2002, to the present.
Complainant notes the fee petition contains: (1) information about
her attorney's education and work experience; (2) contemporaneous and
detailed worksheets showing the dates and nature of the work performed,
as well as the time spent on each matter; (3) copies of receipts and
other documents pertaining to expenses; (4) statements regarding the
reasonableness of the attorney's hourly rate of $225.00 per hour; and
(5) statements about the prevailing market rate in the community.
The Commission has held that a prevailing party is entitled to an award
of fees for the time spent on a fee claim, including the time spent
defending the award on appeal. Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 11, Sec. VIII (B)
(November 9, 1999) (citing Southeast Legal Defense Group v. Adams,
657 F.2d 1118 (9th Cir. 1981); Lund v. Affleck, 587 F.2d 75 (1st
Cir. 1978)). In addressing a claim for fees incurred in connection with
the preparation and litigation of a fee petition, the Commission has held
a reasonableness standard applies. See Gray v. United States Postal
Serv., EEOC Request No. 05981074 (Oct. 4, 2001); Black v. Department of
the Army, EEOC Request No. 05960390 (December 9, 1998).
Upon review, we note that our previous decision, EEOC Appeal No. 01A14926,
stated that as a prevailing party, complainant was entitled to attorney's
fees and costs for her successful appeal in which she obtained the bulk
of her attorney's fee claim. As specified in our order, complainant
submitted an April 24, 2002 fee petition seeking $8,887.31 in fees and
costs, which was received by the agency on April 30, 2002. According to
the Commission's regulations, the agency was to issue its final decision
on complainant's request within 60 days from the date it received
complainant's fee petition. See 29 C.F.R. � 1614.501(e)(2)(ii)(A).
In the present case, the agency did not issue a final decision within the
specified time frame. As a result, complainant filed an appeal with the
Commission seeking her requested amount of attorney's fees. The record
reveals that although the agency ultimately awarded complainant the
full amount requested in her April 24, 2002 fee petition, the agency did
not issue a final decision on the fee petition until February 2, 2004,
and did not issue complainant payment of the full amount until March
31, 2004. Based on the facts of the present case, we find complainant
is entitled to an award of fees for the time spent on her fee claim,
including the time spent defending the award on appeal.
In her September 1, 2004 fee petition, complainant requested a rate
of $225.00 per hour for work performed from April 1, 2002, through
August 31, 2004. In support of her fee petition, complainant's attorney
submitted a declaration of her education and experience and demonstrating
that the prevailing market rate for attorneys of similar experience
in her geographical practice area was at or around $225.00 per hour.
Complainant's attorney submitted the August 5, 2004 decision issued by
an EEOC AJ in the Boston Area Office (EEOC Hearing No. 160-A2-8362X)
in which she represented another complainant in an EEO complaint and was
awarded $225.00 per hour for work done in that case. Complainant also
submitted an affidavit dated February 2001, from another well-respected
practitioner in her community, who also verified the reasonableness
of her claimed rate. Finally, we note that the Commission previously
upheld the same rate of $225.00 per hour as a reasonable rate for the same
attorney in complainant's previous case under EEOC Appeal No. 01A14926.
Upon review, we find that complainant's claimed rate of $225.00 per hour
is a reasonable rate.
In her September 1, 2004 fee petition, complainant requested reimbursement
for 16 hours of work performed in support of the April 2002 fee petition
and the September 1, 2004 fee petition. In support of her fee petition,
complainant's attorney submitted a detailed contemporaneous accounting
showing the dates and nature of the work performed, as well as the
time spent on each matter. We note that the first two entries on the
contemporaneous accounting are entries for 0:12:09 (twelve minutes, nine
seconds) on April 1, 2002, for �[r]eview decision- calendar litigation
deadlines� and for 0:59.36 on April 24, 2002, for �draft & revise
fee petition & affidavit - calculate fees & costs - attach supporting
documents.� We note that the record reveals that in an April 24, 2002
affidavit submitted by complainant's attorney in support of her April
24, 2002 fee petition, she notes that in the April 24, 2002 petition
she is billing for reviewing the Commission's March 29, 2002 decision
and for work done on preparing the April 24, 2002 fee petition and its
accompanying affidavits and exhibits. As we find complainant's attorney
previously billed for the April 1, 2002 and April 24, 2002 entries listed
on her September 1, 2004 fee petition, we are excluding those charges from
the current petition. Additionally, upon further review of the hours
listed on the accounting, we note that it contained a double entry of
0:15:09 on June 14, 2002, and a double entry of 1:09:51 on January 27,
2004, and we find these entries are not recoverable. Thus, we find
complainant not entitled to recovery for 0:12:09, 0:59:36, 0:15:09,
and 1:09:51. Upon review, we find the rest of the claimed time was
reasonably expended. Thus, for the September 1, 2004 fee petition we
find that complainant should be awarded fees in the amount of $3,176.25
(14.05 hours x $225/hour).
Further, we note that in her September 1, 2004 fee petition, complainant
claimed reimbursement for costs in the amount of $230.64. We note
in support of this request, complainant's attorney submits detailed
postage receipts, bills charged for Lexis research, and logs of photocopy
requests for the relevant period. We note that complainant requested
reimbursement for a total of 55 photocopies on April 1, 2002, and April
23, 2002, at fifteen cents a copy for a total of $8.25. Further, we note
that complainant requested reimbursement for postage on April 24, 2002,
in the amount of $5.66. We find that the requested costs for April 1,
2002, April 23, 2002, and April 24, 2002, are connected to work done
on complainant's April 2002 fee petition and are not recoverable.
Upon review, we find the remaining costs claimed by complainant are
reasonable and find she is entitled to reimbursement for costs in the
amount of $216.73.
In order to avoid more administrative processing of the protracted
issue of fees and costs, we find complainant's appeal brief contains a
petition for fees and attached documentation sufficient to determine the
reasonableness of the requested fees in support of the subject appeal.
See Gray, EEOC Appeal No. 05981074. We find the petition for these
fees and costs expended in the processing of the instant appeal to be
reasonable. We therefore award complainant's attorney a total of 2.44
hours multiplied by her prevailing rate of $225.00 an hour, totaling
$549.00 in additional fees. Finally, we award the requested $77.25 in
additional costs.
CONCLUSION
Accordingly, the agency's decision denying complainant additional
attorney's fees and costs is REVERSED and the matter is REMANDED for
further processing in accordance with the Order listed below.
ORDER
The agency is ordered to take the following remedial action:
Within 30 days from the date this decision becomes final, the agency
shall pay complainant $3,725.25 ($3,176.25 + $549.00) in attorneys fees
and $293.98 ($216.73 + $77.25) in costs.
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.
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
November 29, 2005
__________________
Date
1In her April 25, 2001 fee petition,
complainant requested attorney's fees and costs for the period of
September 1994, through April 2001.
2In her April 24, 2002 fee petition, complainant requested attorney's
fees and costs for the period of April 2001, through April 2002.