01A02915
08-29-2002
Longino Chavarria, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Longino Chavarria v. Department of Veterans Affairs
01A02915
08-29-02
.
Longino Chavarria,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02915
Agency No. 98-0237
Hearing Nos. 320-98-8402X; 320-98-8403X
DECISION
INTRODUCTION
On March 13, 2000, Longino Chavarria (Complainant) timely initiated an
appeal to the Equal Employment Opportunity Commission (EEOC or Commission)
from the final decision of the Department of Veterans Affairs (Agency),
issued February 17, 2000, concerning a request for attorney's fees
in connection with his equal employment opportunity (EEO) complaint.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission MODIFIES the agency's final decision
(FAD).
ISSUE PRESENTED
The issue presented on appeal is whether the agency's assessment of
reasonable attorney fees and costs in the amount of $18,120.85 was proper.
BACKGROUND
On September 17, 1997, Complainant filed a formal complaint with the
agency claiming discrimination due to disability (hand injury) and
national origin (Native American/Hispanic) when the agency failed to
provide him with a position within his medical restrictions from January
1997 to February 1998. Following a hearing before an EEOC Administrative
Judge (AJ), the AJ issued a bench decision finding that Complainant
was not disabled with the meaning of the Rehabilitation Act, but that
the agency discriminated against Complainant based on his national
origin. The AJ awarded full make whole relief, including $25,000 in
compensatory damages, and attorney fees. The agency's final order fully
implemented the AJ's decision and requested that Complainant submit an
attorney's fee petition in accordance with 29 C.F.R. � 1614.501(e)(2).
Subsequently Complainant's attorney (CA) submitted a fee petition to the
agency requesting attorney's fees totaling $25,285.00 for 146.95 hours
of services rendered between July 15, 1997, and December 27, 1999, and
costs incurred of $202.53. Specifically, CA requested his hourly rate
of $200 for 112.35 hours for services rendered by CA, $125 per hour
for 4.8 hours of work performed by his associate; $75 per hour for 29
hours or work performed by a paralegal; and $40 for .80 hours of work
performed by another employee.
On February 17, 2000, the agency issued a final agency decision awarding
CA $18,120.85 for 93.9 billable hours for services rendered, including
$60.85 in costs. The agency granted CA attorney fees in the amount
of $17,640 for 82.2 hours (including 4 hours for CA's response to the
agency's comment on the fee petition) at $200 per hour, and 9.6 associate
hours at $125 per hour. The agency also awarded an additional $420 for
2.10 hours billed for preparing the fee petition, which resulted in a
total 93.9 hours. The agency did not dispute the hourly rate requested
by CA, but, disallowed .25 hours billed on November 24, 1998, as related
to reviewing Complainant's Office of Workers' Compensation (OWCP)
claim decision, and 8.25 hours billed from July 15 through September
16, 1997, as these hours preceded the filing of the formal complaint.
Finding the hours to be excessive, the agency also made a 33% across the
board reduction of the 69.3 hours CA charged for representing Complainant
from August 31, 1999 through September 16, 1999, reflecting a deduction of
23.3 hours. The agency excluded 29 hours billed for the services of CA's
paralegal (PL) finding that PL was not working under CA's supervision,
but was instead a second non-legal representative for Complainant.
The agency also disallowed $140.68 in costs, which were identified
as duplicative. It is from this decision that Complainant now appeals.
LEGAL STANDARD
By federal regulation, an agency shall award the applicant reasonable
attorney's fees, in accordance with existing case law and regulatory
standards, incurred in the processing of an EEO complaint. 29 C.F.R. �
1614.501(e). The fee awarded is normally determined by multiplying the
number of hours reasonably expended on the case by a reasonable hourly
rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart,
461 U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B). The attorney
requesting the fee award has the burden of proving, by specific
evidence, his or her entitlement to the requested amount of attorney's
fees and costs in the matter. Copeland v. Marshal, 641 F.2d 880, 892
(D.C. Cir. 1983).
Statutory attorney's fees may be recovered only for services rendered
after the complainant has notified the agency that he is represented
by an attorney and has filed his formal complaint in the matter. 29
C.F.R. � 1614.501(e)(1)(iv); Clark v. Department of the Navy, EEOC Appeal
No. 01956234 (October 25, 1996); Erickson v. Department of the Army,
EEOC Appeal No. 01944011 (March 12, 1996). The Commission has held that
attorney's fees are not awarded for services rendered between the time of
notice and the time the formal complaint is filed. McKeel v. Dept. of
Energy, EEOC Appeal No. 01893703 (December 12, 1989). However,
fees may be paid for time expended by counsel to determine whether to
represent the Complainant. Stauner v. Department of Agriculture, EEOC
Appeal No. 01890678 (April 13, 1989). The Commission has found that an
attorney may reasonably expend up to two hours for such determination.
Vincent v. Department of the Army, EEOC Request No. 05941012 (February
27, 1996).
ANALYSIS AND FINDINGS
Initially, we note that while the agency calculated 9.6 hours for CA's
associate attorney, the records reflect only 4.8 hours for this associate.
A review of the records shows that CA correctly calculated the hours
billed; therefore, we will use CA's calculation of 146.95 hours, plus
the four additional hours that the agency awarded CA for his response
to its comments on the fee petition, for a total of 150.95 hours,
in determining the amount of fees to award CA. We also note that CA
did not contest the $60.85 in costs awarded by the agency, nor did the
agency contest the hourly rates requested by CA, therefore these issues
will not be addressed herein.
Pre-Complaint and Paralegal Services
CA sought to be compensated for 8.25 hours of work he performed,
and 22 hours<1> performed by his paralegal (PL) between July 15, 1997
and September 16, 1997, prior to the filing of the formal complaint.
The agency excluded the hours billed for PL contending that PL was not a
paralegal under CA's supervision, as PL held himself out as an independent
EEO representative and had represented numerous complainants without
CA's involvement. In response, CA averred that he had employed PL as a
paralegal. CA also provided payroll and tax records for PL for 1996 and
1997, including the time periods relevant to this petition. Therefore, we
find that PL was employed and supervised by CA for purposes of calculating
the hours billed. In relation to the 30.25 billed during the time period
above, we note that, as a matter of record, Complainant did not file his
formal complaint until September 17, 1997. As such, the agency properly
disallowed these hours on the grounds that pre-complaint services are
generally non-compensable. Nevertheless, as the Commission has allowed
an attorney up to two hours for time prior to filing the formal complaint
while the attorney determines whether to accept the case, we award CA two
(2) hours for time expended prior to filing the formal complaint.
Excessive Services
The agency refused compensation for 7 hours of services performed by
PL from September 19, 1997 to September 30, 1997, and 23.3 hours of
services CA performed between August 31, through September 16, 1999 on the
grounds that the work performed was either unrelated to Complainant's
claims or excessive. We disagree. There is a strong presumption
that the reasonable hourly rate 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
Management Directive 110 (November 9, 1999). 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 MD110, at p. 11-7. The party seeking
to adjust the lodestar, either up or down, has the burden of justifying
the deviation. Id. at p. 11-8. In light of the substantial recovery
on the claims asserted and the results actually achieved after the AJ
finding of discrimination, it appears that these services, as described
in the fee petition were reasonably necessary for the prosecution of
Complainant's claims. We also agree with CA that the .25 hours for
reviewing the OWCP decision was necessary as it had a direct impact on
Complainant's damages. Accordingly, we order the agency to pay CA an
additional 30.55 hours, including the 7 hours for work performed by PL.
Fees Incurred in Connection With Appeal
Having prevailed in substantial part on this appeal, CA will be entitled
to an award of attorney's fees and costs associated with the prosecution
of this appeal. The petition should be submitted in accordance with the
order below. The parties' attention is directed to Black v. Department
of the Army, EEOC Request No. 05960390 (December 9, 1998) which modified
the Commission's approach to "fees on fees" awards.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Commission to MODIFY the FAD awarding attorney's
fees as set forth in the Order of the Commission below.
ORDER (C0900)
To the extent it has not already done so, the agency is ordered to take
the following remedial action:
(1) Pay to Complainant's counsel attorney's fees in the amount of
$23,155.85, representing the $17,520.85<2> already calculated as
reasonable by the agency, plus $5,110 for the additional 25.55 hours at
$200.00 per hour, and $525 for 7 hours at $75 per hour awarded in this
decision. The agency shall tender such payment in full to Complainant's
counsel no later than thirty (30) calendar days after the date on which
this decision becomes final.
(2) The agency shall also pay to Complainant reasonable attorney's fees
and costs incurred in pursuit of this appeal. Complainant's counsel
shall provide the agency with all necessary documentation of services
rendered and costs incurred in connection with this appeal within twenty
(20) calendar days of the date on which this decision becomes final. The
agency may tender this payment separately, or together with the payment
specified in paragraph (1) of this Order. If this payment is tendered
separately, the agency shall tender it to Complainant's counsel no later
than forty-five (45) calendar days after the date on which this decision
becomes final.
(3) 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 of the
agency's calculation of interest due on the award of attorney's fees and
costs, and evidence that the corrective action has been implemented. The
report shall be submitted no later than thirty (30) calendar days after
the date on which the corrective action has been completed.
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. V 2000). 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 (S0900)
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 (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
___08-29-02_______________
Date
1We note that the 29 hours billed for PL's services have been divided
to reflect the work performed prior to (22 hours), and after filing of
the formal complaint (7 hours).
2This amount deducted $600 for the 4.8 additional hours at $125 per hour
credited to CA's associate in error by the agency.