01970278
08-04-1999
Loretta Mareno, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Loretta Mareno, )
Appellant, )
) Appeal No. 01970278
v. ) Agency No. 91-033 & 91-224
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
INTRODUCTION
On October 9, 1996, Loretta Mareno (appellant) initiated an appeal to the
Equal Employment Opportunity Commission (EEOC) from the final decision
of the Secretary, Department of Veterans Affairs (agency) concerning a
supplemental petition for attorney fees filed in connection with her equal
employment opportunity (EEO) complaint. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
BACKGROUND
On November 12, 1993, the Commission issued a decision finding that
the agency had discriminated against appellant on the basis of physical
disability (back impairment), in that the agency failed reasonably to
accommodate appellant. Mareno v. Dept. of Veterans Affairs, EEOC Appeal
No. 01930722. As part of the relief ordered, the agency was directed to
pay appellant's reasonable attorney fees and costs incurred in connection
with the successful prosecution of her complaint. Appellant's counsel
timely submitted a fee petition to the agency requesting fees in the
amount of $35,829.50, plus costs in the amount of $685.01; a total
of $36,514.51. By final agency decision (FAD) dated March 21, 1994,
the agency awarded fees in the amount of $29,573.88, plus costs in the
amount of $19.25; a total of $29,593.13.
Appellant appealed the agency's partial denial of her attorney's fees
petition to the Commission. We modified the agency's FAD by increasing
the amount of attorney's fees to be awarded to appellant to $34,194.50.<1>
The Commission also ordered the agency to �pay to appellant reasonable
attorney fees and costs incurred in pursuit of this appeal.� Mareno
v. Dept. of Veterans Affairs, EEOC Appeal No. 01943104 (February 14, 1996)
On April 12, 1996, Appellant's counsel submitted a supplemental fee
petition to the agency requesting fees in the amount of $7,885.50, plus
costs in the amount of $258.02; a total of $8,143.52. By final agency
decision dated September 19, 1996, the agency awarded fees in the amount
of $1,025.84 and disallowed reimbursement of all costs. It is from this
decision on her supplemental fee petition that appellant now appeals.
ANALYSIS AND FINDINGS
The agency objects to appellant's supplemental fee petition on two
grounds: first, that the total fee amount requested exceeds the fixed
percentage limitation the Commission places on �fees for fees� awards.
Second, that �many of the hours [counsel] claimed related to other
matters.� For the reasons set forth below, we find that the agency's
first position is not well taken. However, we agree with the agency
that certain of the services for which appellant seeks reimbursement
are not compensable.
In its statement on appeal, the agency takes the position that any fee
award to be made in connection with a successful appeal from an agency's
decision denying attorney fees �should not exceed 3% of the hours in
the main case when the issue is submitted on the papers without a trial
and should not exceed 5% of the hours in the main case when a trial is
necessary.� In support of this proposition, the agency cites, inter
alia, Coulter v. State of Tennessee, 805 F.2d 146 (6th Cir. 1986); Qazei
v. Department of the Interior, EEOC Appeal No. 01873357 (May 24, 1988).
Applying this rule, the agency limited appellant's supplemental fee award
to $1,025.84 which amount is 3% of the original fee award of $34,194.50.
The Commission has recently addressed the question of whether
the rule of Coulter should be applied to attorney fee awards in
Commission proceedings. In Black v. Department of the Army, EEOC
Request No. 05960390 (December 9, 1998) the Commission rejected the
percentage limitations placed on attorney fee awards by Coulter finding
such limitations to be �arbitrary� and inappropriately �restrictive.�
The Commission determined that �fees for working on attorney's fees
should be based on reasonableness.� Id. In the instant case, in view
of our decision in Black, the FAD must be modified to included the award
of all fees reasonably incurred in obtaining the Commission's favorable
decision in Mareno v. Dept. of Veterans Affairs, EEOC Appeal No. 01943104
(February 14, 1996).
We find, however, that some of the legal services for which appellant
seeks reimbursement were not performed in connection with the attorney's
fee appeal and may properly be excluded from the instant fee award.
The entries for which compensation will be denied are as follows:
2/1/94 0.10 hrs $28.50 Left message for client to call.
2/2/94 0.25 hrs $71.25 Telephone conference with client. The VA at
Sepulveda has been totally destroyed. LM wishes to be detailed to pysch
unit as a Nu [sic]
2/16/94 1.25 hrs $356.25 Telephone conference with Durdin; draft letter
confirming call.
2/22/94 0.25 hrs $71.25 Telephone conference with Al Turner re: agency's
refusal to comply with OFO order.
3/9/94 0.25 hrs $71.25 Read letter from Alvin Turner re: compliance.
3/24/94 0.75 hrs $213.75 Drafted letter to Lawson re: failure to comply
with EEOC Final Decision.
4/7/94 0.25 hrs $71.25 Telephone conference with client re: VA's failure
to provide full relieve [sic] ordered by EEOC. Check sent to her and
will be [mailed].
1/10/95 0.25 hrs $71.25 Attempted to call Mr. Hinch, Dept. of VA; Left
message for Al Turner, EEOC Compliance for VA re: Nov. 29. 1994 letter.
1/10/95 0.50 hrs $142.50 Draft letter to VA in response to letter
from OFO.
2/22/95 0.50 hrs $142.50 Draft letter to OFO.
The legal services reflected in the foregoing entries appear to relate to
counsel's efforts to enforce compliance with the Commission's February 12,
1993 order requiring reasonable accommodation of appellant's disability
and were not undertaken in connection with appellant's attorney's
fees petition. Accordingly, they were not within the scope of our
February 14, 1996 order and are not reimbursable in connection with the
instant fee petition.<2> The remainder of the legal services described
in the petition, are related to the attorney's fee petition and appear
to have been reasonably undertaken. These entries reflect 17.45 hours
for lead counsel (@ $285.00 per hour) and 11.90 hours for her associate
(@ $150.00 per hour). Appellant is entitled to reimbursement for these
services in the amount of $6,758.25.
Appellant has also requested reimbursement for costs in the amount of
$258.02. However, the petition does not contain proper substantiation
for the requested reimbursement. In this respect, the instant petition
suffers from the same shortcomings as we detailed at length in Mareno
v. Dept. of Veterans Affairs, EEOC Appeal No. 01943104 (February 14,
1996).<3> For this reason, appellant is not entitled to reimbursement
of any costs.
CONCLUSION
Accordingly, it is the decision of the Commission to MODIFY the final
agency decision and to award appellant attorney's fees as discussed in
this opinion and as set forth in the ORDER below.
ORDER
The agency is ordered to pay appellant, within thirty (30) calendar
days of the date this decision becomes final, attorney's fees reflecting
payment for 17.45 hours at a rate of $285/hour and 11.90 hours at a rate
of $150/hour for a total of $6,758.25 (minus any amount already paid).
The agency is further ordered to submit a report of compliance, as
referenced below. The report shall include supporting documentation to
verify that the action has been fully implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. ��1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.10.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
August 4, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The Commission awarded
none of the costs claimed by appellant's counsel
because the fee petition contained inadequate
documentation of expenses and lacked specific
descriptions of the nature of the expenditures.
2Our denial of compensation for these services is without prejudice to
any later petition for attorney's fees appellant might make.
3As she did in her earlier attorney's fee petition, here appellant failed
to: supply copies of telephone bills for which reimbursement is sought;
justify photocopy charges by specifying the numbers of photocopies made
or the charge per page for those copies; or substantiate claimed postage
charges by identifying items mailed.