0520140531
07-26-2016
Lionel A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lionel A.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Request No. 0520140531
Appeal No. 0120131576
Agency No. 4K-200-0020-06
DECISION ON REQUEST FOR RECONSIDERATION
On September 3, 2014, Complainant, by and through his attorney, timely filed a request for reconsideration with the Equal Employment Opportunity Commission (EEOC or Commission) of the decision in EEOC Appeal No. 0120131576 (August 1, 2014). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
BACKGROUND
In EEOC Appeal No. 0720090024 (Jan. 22, 2010), the Commission dismissed the Agency's appeal from the decision of an Equal Employment Opportunity Commission Administrative Judge. We reversed Complainant's notice of removal which was effective February 21, 2006, ordered in part that the Agency offer to reinstate him to his position with the Potomac Substation of the Rockville Post Office in Maryland with backpay, benefits, and interest, and pay attorney's fees of $102,926.60 and costs of $2,727.27. This covered attorney fees from June 15, 2006 through March 27, 2008.2 We also ordered that Complainant was entitled to reasonable attorney fees incurred in the processing of the complaint, that the attorney may submit a verified statement of fees to the Agency, and it shall process the claim for fees in accordance with 29 C.F.R. � 1614.501.
Thereafter, by and through his attorney, Complainant made a request to the Agency for attorney fees and costs for the period of April 1, 2008 through September 2, 2011 - $133,494.50 in fees, and $1,275.71 in costs. In September 2011, this matter was settled by the parties, resulting in a total payment by the Agency of $128,095.48 in fees and costs for this period.
Nevertheless, on January 30, 2013, the Agency issued a FAD on attorney fees. In the FAD, the Agency wrote that it was ruling on Complainant's fee requests dated February 19, 2010 and September 2, 2011 (for the same above period of April 1, 2008 through September 2, 2011). The Agency awarded Complainant less than the settlement amount in the FAD, and wrote therein that this was its final decision regarding Complainant's fee request.
On February 6, 2013, shortly after the FAD was issued, Complainant's attorney emailed the Agency's counsel that he believed the FAD was issued in error - the fee requests covered by the FAD were previously settled by him and the Agency's prior counsel and already paid. He wrote that the FAD did not address attorney fees incurred after September 2, 2011, on enforcement matters (to obtain compliance with the remedies ordered in EEOC Appeal No. 0720090024).
In his March 27, 2013, appeal brief, Complainant, by and through his attorney, recounted the above and wrote that the only remaining issue on attorney fees were for those incurred on enforcement matters after September 2, 2011. He included a copy of a new fee petition dated February 27, 2013, which he submitted to the Agency's counsel, with copies to its Regional Manager, EEO Compliance & Appeals in Memphis, Tennessee, its Manager, National EEO Compliance & Appeals Program in Washington, DC, and its NEEOISO in Tampa, Florida. He also submitted itemized billing for fees incurred thereafter - up through writing the appeal brief. In the fee petition, Complainant's counsel wrote that since the FAD triggered deadlines, it appeared necessary for Complainant to file an appeal to preserve the remaining claims regarding relief and attorney fees, and asked for the Agency's counsel's thoughts. The March 27, 2013 appeal brief was styled as an appeal brief, and petition for enforcement on the order in EEOC Appeal No. 0720090024. It included argument regarding calculations of backpay, benefits, including reimbursement of COBRA payments, interest, and reimbursement for increased tax liability. The brief was copied to the Agency's counsel and the Agency's Regional Manager, EEO Compliance and Appeals in Memphis, Tennessee.
On appeal, in a letter dated February 26, 2014, the Agency Manager of EEO Compliance & Appeals in Memphis, Tennessee wrote that the Agency did not issue the check for the amount of attorney fees awarded in the FAD because Complainant's attorney informed the Agency that the fees addressed therein were already settled and paid. He wrote that since the fees addressed in the FAD were previously settled, the appeal should be dismissed.
In our previous decision, we dismissed the appeal. We reasoned that the fees covered in the FAD were resolved via settlement. We noted that in his brief, Complainant directed the Commission's attention to certain other matters related to the Agency's noncompliance with the Commission's order in EEOC Appeal No. 0720090024, but they were not properly the subject of this appeal. We advised that if the parties are unable to resolve those issues, Complainant should avail himself of his right under 29 C.F.R. � 1614.503(a) to file a petition for enforcement.
On request for reconsideration, Complainant, by and through his attorney, writes that he never received the Agency's letter dated February 26, 2014, and does not know the content thereof. He writes that the final issue remaining is the attorney fee claim for enforcement efforts after September 2, 2011. He writes that on March 18, 2013, the Agency finally issued a check for $5,567.88 to Complainant for his COBRA payments, and he was required to persistently press forward with enforcement efforts at least through this time.
Complainant's attorney submits emails he sent to Agency counsel attempting to resolve the remaining attorney fees claim. These include one sent on February 27, 2013, with his February 27, 2013 fee request attached and a discussion thereof, one sent on June 5, 2013, reiterating the amount requested in response to an Agency counsel's email to him on June 4, 2013, asking about the amount, and an email dated January 21, 2014, again seeking to resolve the fee claim.
In his request, Complainant's counsel writes that the Agency's counsel never communicated with him after June 4, 2013. He argues that he is entitled additional attorney fees. He submits documentation of the current reasonable hourly rate for attorney fees, and sets forth the time he worked on Complainant's case up through the request for reconsideration. He expresses great concern that our prior decision will be read to resolve all attorney fees matters.
Complainant sent copies of his request to the Agency's Counsel, the Agency Regional Manager of EEO Compliance and Appeals in Memphis, Tennessee, and the Agency's NEEOISO - Appeals in Tampa, Florida. The Agency does not respond to Complainant's request.
ANALYSIS AND FINDINGS
We exercise our discretion to vacate our previous decision to address the remaining issue in Complainant's case - attorney fees. Complainant submitted his most recent formal fee request to Agency counsel, with copies to three Agency EEO units on February 27, 2013. EEOC Regulation 29 C.F.R. � 1614.501(e)(2)(ii)(A) requires the Agency to issue a decision determining the amount of attorney fees or costs due within 60 days of receipt of the fee request. Complainant's attorney put the Agency on notice of this fee request again when he filed his appeal - styling it in part as a petition for enforcement, and on request for reconsideration, with updates of his additional time expended on appeal and request. He indicates that the Agency has not acted on his fee request, and the Agency does not respond. Because the Agency is on notice of Complainant's attorney fee request, there is no indication it issued a decision thereon, and we have sufficient information in the record to rule on attorney fees, we will do so here.
In his February 27, 2013, fee petition affidavit, Complainant's attorney wrote that the current hourly rate he charged to paying clients for the type of work he did for Complainant was $505 hourly, consistent with the "Laffey Matrix." On request, he writes that since then, the Laffey Matrix increased the reasonable hourly rate for his services to $520, and submits a copy of the Laffey Matrix verifying this. As part of his February 27, 2013 fee request, Complainant's attorney submitted itemized billing for time he worked from September 8, 2011 through February 27, 2013 - 19 hours. With his appeal and petition for enforcement brief, he submitted itemized billing up through the time of his brief - an additional 11.80 hours. On request, he writes that he expended an additional six hours preparing the request for reconsideration.
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. 29 C.F.R. � 1614.501(e)(2)(ii)(B); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-13. (Aug. 5, 2015). Based on our review of record, we find that the reasonably hourly rate for Complainant attorney's services is $520, and the hours reasonably expended were 36.80. Accordingly, we award Complainant attorney fees of $19,136 - which is $520 X 36.80.3
CONCLUSION
Our decision in EEOC Appeal No. 0120131576 is VACATED. Complainant is awarded $19,136 in attorney fees.
ORDER
To the extent it has not done so already, the Agency shall make payment to Complainant's law firm in the amount of $19,136 in attorney fees for the period covering September 8, 2011 through the instant request for reconsideration.4
The Agency shall complete this action within 60 calendar days after this decision becomes final.5
Proof of Compliance with this Order must be sent to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0416)6
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), 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. The requests 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 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
July 26, 2016
__________________
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 In a January 30, 2013, final Agency decision (FAD), the Agency represented that pursuant to our order in EEOC Appeal No. 0720090024, on February 26, 2010, it issued a check to Complainant's attorney in the amount of $105,653.87 for attorney fees and costs. This is uncontested. The FAD regarded a petition, which was supplemented, for attorney fees incurred after March 27, 2008.
3 As an adjustment for delay in payment, the hourly rate is properly measured by compensating Complainant's attorney at his current, rather than historical hourly rate. Mareno v. Department of Veterans Affairs, EEOC Appeal No. 01943104 (Feb. 14, 1996).
4 If the parties have previously settled the period of September 8, 2011 though the instant request for reconsideration, that would preempt this order.
5 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed.
6 While this decision was written in response to a request for reconsideration, since we vacated our prior decision and this is the first time we addressed the merits of Complainant's attorney fee request, either party may request reconsideration of this decision.
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