Leticia W.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 9, 2020

2019002510 (E.E.O.C. Jun. 9, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leticia W.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019002510 Hearing No. 451-2014-00220X Agency No. 2003-0116-2013104197 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 8, 2019 final decision2 concerning her award of attorney’s fees regarding her equal employment opportunity (EEO) complaint alleging discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-11, in the Office of Information and Technology at the Agency’s National Service Desk in Austin, Texas. The record indicates that on November 25, 2013, Complainant filed her complaint alleging discrimination based on sex (female) and in reprisal for prior EEO activity when: 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 The record reveals the Agency issued an errata on January 17, 2019, correcting a typographical error in its January 8, 2019 final decision. 2019002510 2 1. From September 2012 through May 28, 2013, her first-level supervisor subjected her to sexual harassment; and 2. On August 6, 2013, her second-level supervisor informed her that she was not going to be promoted to GS-12, as part of her career ladder. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew her request. On November 18, 2014, the Agency issued its final agency decision finding no discrimination as alleged. Complainant previously appealed the Agency’s decision. In EEOC Appeal No. 0120150825 (March 9, 2018), the Commission reversed the Agency’s finding of no discrimination regarding claim 1. The Commission affirmed the Agency’s finding of no discrimination regarding claim 2. Regarding claim 1, the Commission found that Complainant was subjected to sexual harassment by her first-level supervisor and that the Agency was liable for the harassment. The Commission thus ordered the Agency, in relevant part, to pay Complainant attorney’s fees and compensatory damages; to restore any leave used for the discrimination; and to provide eight hours of training to management staff with a focus on preventing sexual harassment in the workplace and management’s obligation after receiving a complaint of sexual harassment. The Agency requested that the Commission reconsider its decision in EEOC Appeal No. 0120150825. In EEOC Request No. 0520180337 (August 2, 2018), the Commission denied the Agency’s request and ordered the Agency to comply with the relief in its prior appellate decision. On September 4, 2018, Complainant submitted her request her attorney’s fees and costs, including a declaration from Senior Attorney 1 and a verified billing statement. Complainant requested $202,969.20 in attorney’s fees for a total of 413.45 hours of work performed by three senior attorneys, two associate attorneys, and two paralegals. Senior Attorney 1 stated that the billing statement reflected the reduction of $7,000.00 for time he spent on claim 2, which was less than 5% of the total amount of time spent as of March 18, 2018 (the date he received the Commission’s prior appeal decision). The attorney indicated that he logged no time in connection with claim 2 thereafter. On January 8, 2019, the Agency issued its final decision awarding $136,471.62 in attorney’s fees.3 The Agency noted 50.55 hours were billed for pre-complaint work for representation prior to November 25, 2013, the date Complainant filed her formal complaint, totaling $22,232.90. 3 The Agency issued a separate final Agency decision, dated December 20, 2018, concerning Complainant’s entitlement of compensatory damages. Complainant appealed the Agency’s determination of compensatory damages, and this matter is currently pending before the Commission under EEOC Appeal No. 2019001896. 2019002510 3 The Agency awarded Complainant 2.0 hours of attorney’s fees in the amount of $1,226.00 (2.0 hours x $613.00 hourly rate = $1,226.00) incurred by Senior Attorney 1 on August 20, 2013, for the purposes of reviewing the case and determining whether to accept it. Thus, the Agency determined Complainant’s pre-complaint attorney’s fees totaling 50.55 hours should be reduced by 48.55 hours resulting in a reduction of: $21,006.90 = $22,232.90 - $1,226.00. This reduction would result in attorney’s fees of: $181,962.30 =$202,969.20 - $21,006.90. The Agency further indicated that Complainant’s billing statement showed that the hours billed by multiple attorneys and paralegals were excessive, redundant, and unnecessary. The Agency did not any specific examples of excessive, redundant, or unnecessary billing. The Agency stated that an across-the-board 25% reduction of the remaining attorney’s fees was appropriate. This would result in a further reduction of: $45,490.58 = 25% x $181,962.30. Thus, the Agency determined that Complainant was entitled to attorney’s fees totaling: $136,471.724 = $202,969.20 - $45,490.58. Complainant files the instant appeal from the Agency’s decision indicating she is entitled to the full amount requested of $202,969.20 in attorney’s fees. Alternatively, Complainant argues that if fees are subject to reduction because they were incurred prior to the formal complaint, she requests no reduction for 7.5 hours totaling $4,597.50 for Senior Attorney 1’s time expended prior to submitting a formal designation of representation form and 2.0 hours totaling $1,226.00 for pre-complaint work devoted to mediation efforts. This would result in the reduction in pre- complaint fees in the following amount: $16,409.40 = $22,232.90 - $4,597.50 - $1,226.00. Thus, Complainant states that at a minimum, she is entitled to attorney’s fees of: $186,559.80 = $202,969.20 - $16,409.40. 4 It is noted that the Agency’s decision indicates a typographical error by stating $136,471.62, instead of $136,471.72. 2019002510 4 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. §1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 29 C.F.R. § 1614.107(a)(1) (EEO MD-110) at 9-16 (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). By federal regulation, 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. 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. Eckhart, 461 U.S. 424 (1983). Hourly Rate Reasonable hourly rates are measured by the prevailing market rates in the relevant community. EEO MD-110, 11-13; Cooley v. Dep’t of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998) (quoting Blum v. Stenson, 465 U.S. 886 (1984)); Brent v. Dep’t of the Air Force, EEOC Request No. 05901175 (Jan. 8, 1991). In the instant case, the Agency does not contest the hourly rates charged by Complainant’s attorneys, which was supported by the Laffey Matrix, of $166.00/hour for paralegal, $351.00/hour for Associate Attorney 1, $340.00/hour for Associate Attorney 2, $613.00/hour for Senior Attorney 1; $491.00/hour for Senior Attorney 2, and $572/hour for Senior Attorney 3. Hours Expended 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 EEO MD-110 at 11-9. A fee award may be reduced: in cases of limited success; where the quality of representation was poor; the attorney’s conduct resulted in undue delay or obstruction of the process; or where settlement likely could have been reached much earlier, but for the attorney’s conduct. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id. at 11-13. 2019002510 5 All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant or otherwise unnecessary hours. A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. Id. at 11-14. 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 11-17. 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. See Spencer 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. Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003). Attorney’s fees shall be paid for services performed by an attorney after the filing of a written complaint, provided that the attorney provides reasonable notification 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 the complainant. 29 C.F.R. § 1614.501(e)(1)(iv). Complainant requested payment for a total of 50.55 hours ($22,232.90) for the legal work performed prior to the filing of the formal complaint. Alternatively, Complainant argues that if fees are subject to reduction because they were incurred prior to the filing of her formal complaint, she requests no reduction for 7.5 hours totaling $4,597.50 for Senior Attorney 1’s time expended prior to submitting a formal designation of representation form and 2.0 hours totaling $1,226.00 for Senior Attorney 1’s pre-complaint work devoted to mediation efforts. Complainant argues that it was reasonable for her attorney to incur the requested 7.5 hours because she initiated her sexual harassment complaint in May 2013 and in July 2013, she spoke with a representative of the Agency’s Office of Resolution Management (ORM). She states the ORM representative indicated to her that she could not pursue a claim of sexual harassment because her accused harasser had retired. She stated ORM also indicated that her sexual harassment claim was untimely. Complainant claims that the foregoing information from ORM created confusion regarding the validity and timeliness of her sexual harassment claim, and thus, it was proper for her attorney to expend a reasonable amount of time to assess whether these issues undermined Complainant’s legal recourse. The record supports Complainant’s assertions and thus, we find that Complainant is entitled to 7.5 hours for pre-complaint work performed by Senior Attorney 1 as a result of ORM’s actions. However, we find Complainant is not entitled to reimbursement for the requested 2.0 hours of time spent by Senior Attorney 1 in November 2013 seeking mediation. We note Complainant cited to Marvella B. v. Dep’t of Justice, EEOC Appeal No. 0720170027 (December 14, 2017) which permitted 3.5 hours of pre-complaint work for mediation efforts. 2019002510 6 The Commission’s complaint processing regulations explicitly provide that fees for legal services performed prior to the filing of the complaint are allowable when the Commission affirms on appeal an administrative judge’s decision finding discrimination after an agency takes final action by not implementing that decision. 29 C.F.R. § 1614.501(e)(1)(iv). In Marvella B., following an appeal by the Agency, the Commission affirmed the AJ’s decision finding discrimination and found Complainant was entitled to claim the full expenses incurred during pre-complaint stage, which were not excessive, including mediation efforts. However, the present case does not involve an appeal following an AJ’s finding of discrimination. Thus, we find Complainant is not entitled to reimbursement for 2.0 hours of pre-complaint time spent pursuing mediation. Based on the foregoing, we find that Complainant is entitled to 7.5 hours for pre-complaint fees incurred by Senior Attorney 1. See Koehler v. General Services Administration, EEOC Appeal No. 01A02276 (September 4, 2002); Hedgepeth v. Dep’t of Interior, EEOC Appeal No. 01A52869 (September 7, 2006), req. for recon. den., EEOC Appeal No. 0520070022 (December 7, 2006). Thus, we find the total requested attorney’s fees for the legal work performed prior to the filing of the formal complaint should be reduced by 43.05 hours (= 50.55 - 7.5) which results in the reduction of: $17,635.40 = $22,232.90 - $4,597.50. The Agency further reduced the total remaining attorney’s fees by 25% across-the-board for excessive, redundant, and unnecessary expenditure of hours. Specifically, the Agency indicated that the billing statement showed an excessive amount of time spent researching damages or settlement amounts, preparing for settlement negotiations and mediation. The Commission has ruled that, when reviewing fee petitions which contain many excessive, redundant, unnecessary or inadequately documented expenditures of time, in lieu of engaging in a line-by-line analysis of each charge claimed, the Commission may calculate the number of hours compensable by applying an across-the-board reduction to the number of hours requested. See Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). After a review of the billing statement, we disagree with the Agency’s across-the-board 25% reduction. The billing statement does not reflect that the attorneys’ services were redundant or excessive. Senior Attorney 1, with his paralegal, worked on the complaint up until the Commission’s prior decision finding discrimination regarding claim 1. Thereafter, mostly Associate Attorney 2 worked on remedies and appeals. The record reveals that Senior Attorney 2 spent a small amount of time assisting with the appeal brief (1.1 hours in 2015) and Senior Attorney 3 spent a small amount of time assisting with the attorney’s fee petition (3.0 hours in 2018). The only work done by Associate Attorney 1 occurred prior to the filing of the formal complaint (.4 hours in September 2013). Further, we do not find an excessive amount of time was spent on settlement negotiations or discovery for a hearing. 2019002510 7 Complainant’s attorney worked on discovery and obtained witness testimony preparing for the hearing. However, Complainant, upon the attorney’s advice, decided to withdraw her hearing request only after the Agency argued, before the AJ, to exclude sex videos and sexual images (of which Complainant’s first-level supervisor sent to her). Complainant decided not to further pursue the hearing due to a tactical reason that she might not get a favorable AJ’s ruling if the AJ decided to exclude the sex videos and sexual images which were critical to her case. Thus, we do not find legal work preparing for the hearing unnecessary because Complainant withdrew the hearing request. Senior Attorney 1 indicated that he spent less than 5% of the total amount of time on claim 2 since it comprised a minor aspect of Complainant’s overall legal claim against the Agency. He further indicated that he already reduced $7,000.00 which represented approximately 5% of his fee billing total as of March 18, 2018, when he received the Commission’s prior decision finding discrimination regarding claim 1 and no discrimination regarding claim 2. Senior Attorney 1 stated that thereafter, he logged no time in connection claim 2. He further stated that the billing statement reflected the time spent only in connection with claim 1. After a review of the record, we find that the Agency’s across-the-board 25% reduction was unwarranted. We do not see any excessive or unnecessary expenditure of hours or any hours Complainant’s attorneys or paralegals spent relating to claim 2 in the billing statement. We note that Complainant did not seek reimbursement of costs. Based on the foregoing, we find that Complainant is entitled to $185,333.80 ($202,969.20 minus $17,635.40) attorney’s fees. CONCLUSION Accordingly, we MODIFY the Agency’s final decision and REMAND the matter for further action in accordance with the ORDER below. ORDER The Agency, within 30 days of the date this decision is issued, to the extent it has not already done so, shall pay Complainant $185,333.80 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). Further, the report must include supporting documentation that the corrective action has been implemented. 2019002510 8 ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. §1614.501(e)(1)(iii)), she/he 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 receipt of this decision. 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 C.F.R. § 1614.503(f) for enforcement by that agency. 2019002510 9 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 (R0610) 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. 2019002510 10 “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 (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 June 9, 2020 Date