0120160117
01-18-2018
Kristy E.,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kristy E.,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120160117
Agency No. 5V1C040007
DECISION
On September 21, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 14, 2015 final decision concerning her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency erred in determining the amount of attorney's fees and costs to which Complainant is entitled when it did not pay $19,285 requested to address increased hourly rates following a delay in payment.
BACKGROUND
At the time of events giving rise to the matters herein, Complainant worked as a Maintenance Mechanic Supervisor, WS-4749-10, at the Agency's Seymour Johnson Air Force Base in Goldsboro, North Carolina. In June 2004, Complainant filed a formal EEO complaint alleging that, between April 2004 and January 2005, the Agency discriminated against her and subjected her to harassment based on sex (female) and reprisal for prior EEO activity. Complainant's allegations include several complaint amendments.
After a somewhat extensive procedural history, on July 8, 2005, an EEOC Administrative Judge (AJ) issued an Order Granting Complainant's Motion for Sanctions. The Agency opposed the sanctions. On September 19, 2005, the AJ upheld the Order and drew an adverse inference against the Agency regarding the underlying complaint. On September 15, 2008, the assigned AJ issued a Default Judgment in favor of Complainant, finding discrimination based on sex and reprisal. Pursuant to her finding, the AJ awarded remedial relief, including compensatory damages, supervisory training, leave restoration, removal of negative information from Complainant's personnel file, and attorney's fees and costs. In pertinent part, the AJ awarded attorney's fees in the amount of $48,875 and related costs in the amount of 2,206.48, for total attorney's fees and costs of $51,081.48.2 On November 3, 2008, the Agency issued a final order rejecting the AJ's finding of discrimination and ordered relief, and concurrently filing an appeal with the Commission's Office of Federal Operations (OFO). OFO docketed the appeal as Complainant v. Dep't of the Air Force, EEOC Appeal No. 0720090009.
On June 5, 2015, in EEOC Appeal No. 0720090009, OFO found the AJ's default judgment appropriate. OFO modified the AJ's award of compensatory damages and affirmed the AJ's award of $51,081.48 in attorney's fees and costs. Also, OFO found that Complainant was entitled to additional attorney's fees for the work performed for the appeal. The OFO decision provided Complainant a statement of rights, including the right to request reconsideration pursuant to 29 C.F.R. � 1614.405. Complainant did not file a request for reconsideration with OFO for EEOC Appeal No. 0720090009.
On July 15, 2015, Complainant filed a Verified Statement of Costs and Attorney's Fees with the Agency. Complainant requested the $51,081.48 originally awarded by the AJ for attorney's fees and costs, $11,981.25 for fees related to the successful OFO appeal, and $19,285 for an increase in hourly rates for the delay in payment between the AJ's decision and OFO's appellate decision.3 In August 2015, the Agency paid the requested $51,081.48 and $11,981.25, but did not pay the additional $19,285 requested for delay.
On September 14, 2015, the Agency issued a final decision. The Agency stated that reasonable fees should be paid at the prevailing rates at the time of petition. The Agency stated, in OFO's June 5, 2015 Order, it ordered the Agency to pay a "sum certain" of $51,081.48 and reasonable attorney's fees related to the appellate process. The Agency stated that there was no evidence that EEOC failed to consider the rate differential when it awarded the "sum certain." The Agency stated that it paid Complainant's attorney in full in the amount of $63,062.73, to include attorney's fees and costs through OFO appeal.
The instant appeal from Complainant followed. On appeal, Complainant stated that the Agency declined to pay the entire attorney's fees and costs awarded. Complainant stated that attorney's fees should be paid at the current hourly rate of the attorney so as not to dissuade attorneys from accepting civil rights cases and to account for delays. Complainant requested the $19,285 that the Agency did not pay and the right to submit a fee request for pursuing the instant appeal.
ANALYSIS AND FINDINGS
By federal regulation, the agency is required to award attorney's fees and costs for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. 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).
There is a strong presumption that the number of hours reasonably expended multiplied by a reasonable hourly rate, the lodestar, represents a reasonable fee, but this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency. 29 C.F.R. � 1614.501(e)(2)(ii)(B). The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 11 � VI.F. (August 5, 2015). The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id.
Complainant is correct that the Commission has held that delay in payment is properly measured by compensating a complainant's attorney(s) at the current, rather than historical, hourly rates. See Huyck v. Dep't of Defense, EEOC Appeal No. 01952015 (October 31, 1997). However, based on the circumstances herein, the appropriate time to have raised an issue with the amount of attorney's fees awarded (including the hourly rate) would have been as a request for reconsideration consistent with 29 C.F.R. � 1614.405(c). In EEOC Appeal No. 0720090009, the Commission affirmed the AJ's award of $51,081.48 for attorney's fees and costs for August 4, 2004 through October 12, 2007 and awarded additional attorney's fees related to the successful OFO appeal. Subsequently, Complainant submitted a statement requesting $11,981.25 related to the successful appeal. In August 2015, the Agency paid Complainant's attorneys $63,062.73 ($51,081.48 plus $11,981.25) in compliance with Appeal No. 0720090009.
After careful review of the record, including complainant's contentions on appeal, we AFFIRM the Agency's denial of additional attorney's fees for increased hourly rate between the AJ's fee award and OFO's affirmance of the fee award, i.e., $19,285.
Further, attorney's fees for the instant appeal are not in order. Attorney's fees may not be recovered for work on unsuccessful claims. Hensley, 461 U.S. at 434-35.
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 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 (S0610)
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 (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 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
January 18, 2018
__________________
Date
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.
2 We note that, in October 2007, Complainant filed a fee petition for $61,375. The AJ found the fee petition "unclear, inconsistent, and redundant" for the proceedings and subject matter at issue, and made an across-the-board reduction of $12,500. For Attorney One, the AJ awarded $250 per hour for August 4, 2004 through October 31, 2005, and $300 per hour for November 1, 2005 through October 12, 2007. For Attorney Two, for the same respective time periods, the AJ awarded $125 per hour and $225 per hour.
3 Complainant's attorneys requested $19,285, citing $400 per hour for Attorney One and $375 per hour for Attorney Two. The attorneys stated that $19,285 is the difference between their hourly rate in 2008 when the AJ awarded their fees and 2015 when OFO affirmed their fees.
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