Margaret S. Koehler, Complainant,v.Stephen A. Perry, Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionSep 5, 2002
01A02276 (E.E.O.C. Sep. 5, 2002)

01A02276

09-05-2002

Margaret S. Koehler, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.


Margaret S. Koehler v. General Services Administration

01A02276

09-04-02

.

Margaret S. Koehler,

Complainant,

v.

Stephen A. Perry,

Administrator,

General Services Administration,

Agency.

Appeal No. 01A02276

Agency No. 98-R9-PBS-MSK-14

DECISION

On May 19, 1999, the agency issued a final decision in which it found that

complainant's supervisor had subjected her to ongoing sexual harassment

between November 3, 1997, and March 2, 1998.<1> Complainant's counsel

thereafter submitted a request for attorneys fees in the amount of

$31,175.00 and for costs in the amount of $127.35. On December 14,

1999, the agency issued a final decision on the attorneys fee question,

and found that counsel was entitled to attorneys fees in the amount

of $12,456.25, and costs in the amount of $39.25. Counsel appealed,

contending that she was entitled to the full amount of fees and costs

requested. This appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Title VII authorizes the award of reasonable attorneys' fees. 29 C.F.R. �

1614.501(e).<2> The attorney requesting the fee award has the burden

of proving, by specific evidence, his or her entitlement to the requested

fees and costs. Donald v. Department of Labor, EEOC Appeal No.01943425

(August 31, 1995), request for reconsideration denied EEOC Request

No. 05960049 (February 20, 1998). See also Copeland v. Marshall, 641

F.2d 880 (D.C. Cir. 1983).

Counsel requested compensation for 124.7 hours of legal services at the

rate of $250 per hour, which, as previously noted, would result in a fee

award of $31,175. The agency does not challenge the reasonableness of

counsel's hourly rate. Rather, the agency challenges the number of hours

for which counsel claims entitlement to fees and costs. In arriving at

its determination that counsel was entitled only to $12,456.25 in fees

and $39.25 in costs, the agency made the following determinations:

Counsel requested $6,275 for 25.1 hours of work done prior to the

filing of the formal complaint on June 18, 1998. The agency reduced

this amount by 50 percent to $3,137.50 on the ground that much of this

work was unnecessary to make the decision to represent complainant.

The agency deducted $1,025 for 4.1 hours spent on preparing a

Freedom-of-Information-Act (FOIA) request on the ground that it was

separate from and irrelevant to her EEO complaint.

The agency deducted $750 for three hours performed over several days

between March and April 1999 for lack of specificity.

Counsel requested $1,575 for 6.3 hours devoted to a client conference

held on June 15, 1999. The agency deducted $825 for 3.3 hours on the

ground that these hours were excessive.

The agency deducted $525 for 2.1 hours spent leaving telephone messages

on the grounds that counsel did not demonstrate how those messages were

related to the complaint.

After the agency deducted items (1) through (5), it reduced the

remainder of $24,912.50 to arrive at a figure of $12,456.25. It did

so on the ground complainant had prevailed in only one of two issues in

her complaint.

Regarding costs, counsel claimed $127.35, all for telephone calls.

The agency deducted $48.84 on the ground that those calls were associated

with disallowed services. It then reduced the remaining $78.51, for a

total of $39.25.

On appeal, counsel challenges these determinations and raises two

additional issues:

Counsel claims entitlement to interest at an annual rate of 10% on the

amount of attorneys fees that remained unpaid since July 7, 1999.

Last, counsel claims $4,300 for preparation of the instant appeal.

We will address each of these issues, in turn.

Pre-Complaint Services:

Attorneys 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). The formal complaint

and the first page of counsel's fee petition establish that counsel

filed the formal complaint on June 19, 1998. The record does not

contain any other notice of representation issued prior to that date.

We therefore find that the formal complaint itself constituted the notice

of representation in this case. Appeal Brief (AB), Exhibits (Exs.) A, D.

The fee petition indicates that on June 15, 1998, counsel drafted and sent

a client contract and opened a file on complainant. This indicates that

counsel made the decision to represent complainant on June 15, 1998, four

days before filing the formal complaint. Prior to making that decision,

counsel spent 7 hours interviewing complainant, gathering information,

and reviewing documents. Under the circumstances of this case, 7 hours

is a reasonable amount of time to decide whether to take the case.

Accordingly we find that counsel is entitled to fees of $1,750 for

pre-complaint activities, We will therefore disallow $4,525 for the

remaining 18.1 hours for pre-complaint activities.

The FOIA Request:

The regulations pertaining to the award of attorneys fees shall

apply to allegations of discrimination prohibited by Title VII and the

Rehabilitation Act. 29 C.F.R. � 1614.501(e)(1). Counsel's fee petition

includes 5.2 hours for services provided in connection with the FOIA

request. AB, Ex. A, pp. 2-5. In a declaration dated March 13, 2000,

counsel stated that the purpose of the FOIA request was to obtain a

copy of management's inquiry regarding complainant's sexual harassment

complaint, which contained sworn statements from numerous witnesses.

Counsel maintains that she submitted a FOIA request only after the agency

had repeatedly failed to provide the documents in question. AB, Ex. E,

Counsel's Declaration dated March 13, 2000, � 5. This contradicts

the agency's assertion in its final decision that the FOIA request

was not related to complainant's EEO complaint. It clearly was.

Counsel acknowledged in her appeal brief, however, that a reduction of

$500 would be appropriate. In accordance with counsel's own assessment,

we will disallow $500 for 2 hours of work done in connection with the

FOIA request.

Lack of Specificity:

With regard to the specificity required in a fee request, the Commission

has held:

In determining the number of hours reasonably expended, the Commission

recognizes that the attorney is not required to record in great detail

the manner in which each minute of his time was expended. However, the

attorney does have the burden of identifying the subject matters in which

she spent her time, which can be documented by submitting sufficiently

detailed contemporaneous time records to ensure that the time spent was

accurately recorded. Counsel for the prevailing party should make a good

faith effort to exclude from a fee request hours that are excessive,

redundant or otherwise unnecessary.

Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861

(July 17, 1998). Counsel claimed 3 hours for various services rendered

on March 21, April 1, April 5, April 6, April 25, and April 26th, 1999.

AB, Ex. A, p. 5. The agency disallowed these hours on the grounds that

the descriptions of those items were too vague to make a determination

as to their reasonableness or their relationship to the complaint.

We disagree. All seven items in question involve counsel's communication

with her client, complainant. While only two of those items identify what

those calls were about, it is obvious from the context that the substance

of the calls had to do with complainant's sexual harassment complaint.

We find, contrary to the agency, that counsel's descriptions of these

services was sufficient to show that they are neither redundant nor

unnecessary. Accordingly, we find that the agency erred in disallowing

these items.

Client Conference - June 15, 1999:

Counsel claimed $1,575.00 for 6.3 hours of time spent in conference with

complainant on June 15, 1999, regarding the agency's final decision in her

favor, which she had received in late May of 1999. The agency disallowed

$825 for 3.3 hours, which it deemed excessive. In her declaration,

counsel states that at this conference, she was advising complainant

of her legal options and discussing how complainant wished to proceed.

AB, Ex. E, Counsel's Declaration dated March 13, 2000, � 9. She further

stated that complainant was still receiving medical treatment for stress

and extreme emotional trauma, and that the �continuous delays created

by [the agency] have only exacerbated complainant's medical situation.�

This explanation does not address why it would take six hours to discuss

a final decision in complainant's favor. We therefore find that the

agency acted properly in partially disallowing this item.

Telephone Calls:

The agency disallowed $525 for 2.1 hours spent leaving telephone messages.

The fee petition includes approximately twenty items labeled, �client

messages.� AB, Ex. A, pp. 1-5. The agency's rationale for excluding

these items is that counsel could not demonstrate how those messages

were related to the complaint, and that counsel's description of those

services was too vague to be compensable. In support of its position,

the agency cites Malo v. Department of the Navy, EEOC Appeal No. 01956478

(December 22, 1997) for the proposition that the agency should not be

billed for telephone calls that do not reach the intended recipient.

While this case is not Commission precedent, we agree that an attorney

cannot charge a client merely for leaving a message without specific proof

that it was related to and necessary for adjudicating the complaint.

We are not convinced that such proof has been presented in this case.

Accordingly, we find that the agency was correct in disallowing this item.

Fee Reduction:

After the agency deducted $6,262.50 from the gross award, it reduced the

remainder, $24,912.50, by 50 percent to arrive at a figure of $12,456.25.

The agency did so on the fact that complainant prevailed on only one

of two issues raised in her complaint while the fee petition and other

documentation fails to apportion the hours expended between the successful

and unsuccessful claims.

There is a strong presumption that the number of hours reasonably expended

multiplied by a reasonable hourly rate (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 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 Williams v. Department of Veterans Affairs, EEOC Appeal No. 01984753

(July 6, 2001), an earlier case in which the complainant prevailed on

only one of two claims, the Commission upheld the agency's decision to

reduce the attorneys' gross fee awards by 50 percent because the attorneys

expended over half of their claimed hours on the unsuccessful claim.

In this case, however, counsel stated that she spent no more than 5

hours on the unsuccessful claim (see infra note 1), out of a total

of 124 hours. She stated that she spent about twenty minutes to add

allegations regarding her removal from her police officer trainee position

to the complaint, and the rest of the time interviewing a few potential

witnesses on that issue. Counsel's Declaration dated March 13, 2000, � 3.

The investigative record of the case file bears out counsel's argument.

In a six-page formal complaint, counsel devoted only one short paragraph

to the removal issue. The rest of the complaint details complainant's

sexual harassment allegations. AB, Ex. D. Similarly, the investigative

report (IR) and most of the exhibits in the investigative file deal

primarily with the sexual harassment claim. See IR, Exs. 9-27. Contrary

to the agency, we find that it was not necessary for counsel to apportion

her claimed hours between the successful and unsuccessful claims because

there were too few hours expended on the unsuccessful claim to justify

requiring counsel to do so. The more appropriate approach is to disallow

5 hours as that is counsel's estimate of the number of hours expended on

the unsuccessful removal claim. Thus, rather than cut the gross award

in half, the agency need only reduce the gross award by $1,250.

Costs:

Initially, we find that the agency disallowed costs that constituted

legitimate expenses. The only telephone calls that should have been

disallowed were those made between June 15, 1998, when counsel made the

decision to represent complainant, and June 19, 1998, when counsel gave

the agency notice of representation by filing the formal complaint.

Those items are clearly identified on the fee petition, and total up

to $17.30. AB, Ex. A, p. 1. We will therefore deduct this amount from

the $127.35, and award costs of $110.05.

Interest:

Counsel claims that she is entitled to 10 percent interest on any

unpaid fees that has accrued beginning thirty days after she initially

submitted her request for fees, which would be August 6, 1999. However,

interest does not begin to accrue until there is a legal obligation

to award a remedy, either through judicial or administrative order,

or by a settlement agreement. See April v. Department of Agriculture,

EEOC Appeal No. 01963775 (June 5, 1997); Cole v. United States Postal

Service, EEOC Petition No. 04950009 (February 19, 1997). That legal

obligation will be this decision. The agency will be required to award

fees within 30 days after this decision becomes final, in accordance

with our order below. Interest will accrue for everyday thereafter

that the fee award remains unpaid. Allen v. Department of the Interior,

EEOC Request No. 05970352 (August 11, 1999).

The Fee Petition:

Counsel had given birth in January 2000, as this appeal was being

prepared. Consequently, she retained another attorney, who handled

the appeal. According to this second attorney's declaration, he charged

complainant $4,300 for 17.2 hours expended in connection with this appeal.

AB, Ex. E, Declaration of Keven P. Star. This amount will also be added

to the total fees:

Conclusion and Calculation

For the foregoing reasons, we find that the agency did not award

complainant's counsel the full amount of fees and costs to which she

was entitled. The attorneys fees and costs awards shall be determined

as follows:

Number of Hours:

Total number of hours claimed: 124.7

Less: Excessive pre-complaint processing: (18.1)

Excessive time on FOIA request: (2.0)

Excessive time on client conference: (3.3)

Time spent leaving phone messages: (2.1)

Time spent on unsuccessful claim: (5.0) (30.5) = 94.2

Fees:

Gross Award: 94.2 hours @ $250 per hour = $23,550.00

Add: Fees incurred in processing appeal: $4,300.00

Total Fees: $27, 850.00

Add: Costs: $110.05

Total Award Due: $27,960.05

It is unclear from the record whether the agency ever awarded counsel the

fees and costs that it agreed to pay in its December 1999 final decision.

If the agency already awarded counsel the undisputed amount of fees and

costs, the net fees and costs shall be computed as follows:

Total Award Due: $27,960.05

Less: Fees already awarded: ($12,456.25)

Costs already awarded: ($39.25) ($12,495.50)

Net Award Owed: $15,464.55

ORDER

If the agency has not yet awarded complainant attorneys fees and costs,

it shall issue a check to complainant in the amount of $27,960.05.

Alternatively, if the agency has already awarded complainant the

undisputed amount of attorneys fees and costs, it shall issue a check

to complainant in the amount of $15,464.55.

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. 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 (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 (R0900)

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.

"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 (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

_____09-05-02_____________

Date

1Complainant also claimed that the agency

had retaliated against her for filing the sexual harassment complaint

by removing her from her police officer trainee position. However,

the agency did not find discrimination on this issue, and complainant

did not appeal.

2The agency does not dispute the fact that complainant is a prevailing

party. See Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of

Health and Human Resources, 532 U.S. 598 (2001).