01A02439
08-15-2002
Michael C. Coard, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Michael C. Coard v. Department of Justice
01A02439
August 15, 2002
.
Michael C. Coard,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A02439
Agency Nos. P-96-8876 and P-96-8974
Hearing Nos. 170-97-8321X and 170-97-8322X
DECISION
INTRODUCTION
Following his successful prosecution of two consolidated complaints of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. complainant submitted a petition for an award of attorney's
fees and costs to the agency. When the agency failed to award the
fees requested, complainant initiated an appeal to this Commission.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
BACKGROUND
Following an investigation of his complaints, complainant requested a
hearing before an EEOC Administrative Judge (AJ). According to the AJ,
the issues to be addressed at the hearing were:
1. Did the Agency unlawfully discriminate against Complainant based on
his race (African American/Carribean), sex (male) and or national origin
(West Indian) when he was harassed by [a supervisor, (S1)] who allegedly
encouraged staff and inmates to file complaints about him; and
2. Did the Agency unlawfully discriminate against Complainant based on
his race (African American/Carribean), sex (male) and or national origin
(West Indian) and/or in reprisal for his prior EEO activity when, on
April 23, 1996, he received a 10-day suspension?
Following a hearing, the AJ found that complainant had failed to
prove discrimination on the basis of race, sex or national origin.
With respect to retaliation, the AJ found that complainant had failed to
prove discrimination as alleged in Issue 1 but had done so with regard to
Issue 2. The AJ awarded relief for the discrimination, including back
pay, $2418.11 in pecuniary damages; $10,000 in nonpecuniary damages,
and reasonable attorney's fees.
In its final agency decision, the agency implemented the AJ's decision
and informed complainant of his right to an award of attorney's fees.
On September 10, 1999, Complainant's attorney submitted a petition for
attorney's fees and costs in the amount of $134,859.54 to the agency.
The agency took no action with respect to that petition prior to
February 14, 2000 when complainant filed the instant appeal. On March
17, 2000, the agency issued a document entitled �Bureau of Prisons'
Response Regarding Fees & Costs (�the Response�) which it submitted to
the Commission in connection with the instant appeal. In the Response,
the agency determined that complainant was entitled to reimbursement of
attorney's fees and costs in the amount of $36,842.82.
LEGAL STANDARD
The Commission may award complainant reasonable attorney's fees and other
costs incurred in the processing of a complaint regarding allegations
of discrimination in violation of Title VII. 29 C.F.R. � 1614.501(e).
A finding of discrimination raises a presumption of entitlement to an
award of attorney's fees. Id. Attorney's fees shall be paid for services
performed by an attorney after the filing of a written complaint. Id.
An award of attorney's fees is determined by calculating the lodestar,
i.e., by multiplying a reasonable hourly fee times a reasonable number of
hours expended. Hensley v. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. �
1614.501(e)(2)(ii)(B). �There is a strong presumption that this amount
represents the reasonable fee.� 29 C.F.R. � 1614.501(e)(2)(ii)(B).
A reasonable hourly fee is the prevailing market rate in the relevant
community. Blum v. Stenson, 465 U.S. 886 (1984). A petition for fees
and costs must take the form of the verified statement required by the
Commission's regulations at 29 C.F.R. � 1614.501(e)(2)(i).
ANALYSIS AND FINDINGS
Counsel Hourly Rate
The agency argues that the reasonable hourly rate should be determined
by reference to the rates charged at the time the services were
rendered. The agency's position is not well taken. The appropriate rate
was the prevailing rate in 1999, at the time of the submission of the
fee petition. See Missouri v. Jenkins, 491 U.S. 274, 283 n.6 (1989).
Affidavits contained in the record indicate that, in 1999, complainant
was being billed at the rate of $275 per hour for lead counsel, $200
per hour for associate counsel and $70 per hour for paralegals. We will
use the same rates in determining the appropriate fee award.
Out-of-Pocket Expenses
Complainant seeks reimbursement of $5583.01 in litigation costs.
Commission precedent requires that a petition seeking reimbursement of
costs be supported by detailed documentation, including receipts. See,
e.g., Canady v. Department of the Army, EEOC Request No. 05890226
(December 27, 1989). Complainant's counsel submitted no such documentation
with the fee petition. That failure necessitates the denial of
reimbursement for all litigation costs.
�Pre-notification� Services
In reliance on 29 C.F.R. � 1614.501(e)(iv), the agency disallowed
reimbursement for certain services rendered by lead counsel on the
ground that they were performed prior to the agency having received
notice that complainant was represented by an attorney, which occurred
on March 12, 1996. We agree that reimbursement should be disallowed for
certain of these services. Any legal services in excess of two hours
rendered prior to the March 12, 1996 will be disallowed. This amounts
to a disallowance of 6.749 hours of lead counsel's services.
�Excessive� Services
The agency disallowed reimbursement for a variety of legal services as
�redundant,� �duplicative,� �unnecessary� or �excessive.� The agency
offers very little by way of explanation for the disallowances it has
made on these ground. For example, it disallows as �unnecessary�.5
hours billed on October 9, 1996 for a conference between lead counsel and
complainant because lead counsel had a conference with complainant on the
previous day. This is ignores the realities of the practice of law which
may require daily or even hourly contact between an attorney and his or
her client. The agency's other disallowances for such activities as
�correspondence review,� �hearing preparation,� and �discussed case with
legal assistant� are similarly unsupported. We conclude that none of the
legal services the agency has characterized as redundant, duplicative,
unnecessary or excessive will be disallowed.
Services That Do Not �Correspond to Any Case Activity of Record�
The agency disallowed numerous entries in the fee petition on the ground
that the services described did not �correspond to any case activity
of record.� This is not a proper basis for disallowing reimbursement.
If the services were rendered in furtherance of the ultimate goal of
proving complainant's case, and are reasonable in amount, they are
properly reimburseable. The authority upon which the agency relies,
Safford v. United States Postal Service, EEOC Appeal No. 01952348 is
distinguishable. In that case, the Commission approved disallowance
of certain services rendered during the pendency of an appeal to the
Commission because the matter had been briefed and there was no occasion
for the attorney to render any legal services. Here, the agency seeks to
disallow reimbursement for services rendered in advance of the convening
of the AJ hearing. We have no basis for concluding that the services
rendered by counsel were not reasonably related to the prosecution
of the complainant's complaints. The fact that the services did not
�correspond� to �case activities� of which the agency was aware does
not preclude reimbursement.
Travel Time
The agency correctly points out that the Commission precedent requires
that travel time be reimbursed at an hourly rate that is 50% of the
rate awarded for the rendering of legal services. See Doyle v. Frost
et al., EEOC Appeal No. 11980023 (June 28, 2001). Here lead counsel and
associate counsel each billed for 9 hours of travel time. Accordingly,
to compensate for the lower reimbursement rate for travel time, 4.5
hours will be disallowed for each attorney.
Investigator Services
Complainant seeks reimbursement for fees he incurred in retaining
an investigator in the amount of $5242.80. There is no legal basis
for awarding such fees. The Commission's regulations providing for
reimbursement for legal services explicitly limits the categories of
professionals and paraprofessionals whose services may be reimbursed to
the following: �members of the Bar and law clerks, paralegals or law
students under the supervision of members of the Bar.� 29 C.F.R. �
1614.501(e)(iii) Complainant cites no authority that would permit
reimbursement of investigator's fees. The decision on which complainant
relies, Chris v. Central Intelligence Agency, EEOC Appeal No. 01956844
(July 19, 1996) authorized reimbursement for time spent by an attorney
meeting with an investigator not, as is claimed here, for the time of
the investigator himself. Reimbursement will be denied.
Disallowance Of Time Spent On Issues On Which Complainant Did Not Prevail
In addition to the disallowances discussed above, the agency decided that
because complainant prevailed on only one of the two complaints he filed,
the amount of fees to be reimbursed should be reduced by 50%. We find
that under the circumstances of this case any such across-the-board
reduction is inappropriate.
The fact that complainant did not prevail on every aspect of his
complaints does not, in itself, justify a reduction in the hours
reasonably expended where the claims are intertwined, and it would be
impossible to segregate the hours involved in each claim. It is true that
attorney's fees may not be recovered for work on unsuccessful claims.
Hensley, 461 U.S. at 433. Courts have held that fee applicants should
exclude time expended on "truly fractionable" claims or issues on which
they did not prevail. See National Association of Concerned Veterans
(NACV) v. Secretary of Defense, 675 F.2d 1319, 1337 n.13 (D.C. Cir. 1982).
Claims are fractionable or unrelated when they involve "distinctly
different claims for relief that are based on different facts and legal
theories." Hensley, 461 U.S. at 434-35. Thus, in cases where claims are
distinctly different, "work on an unsuccessful claim cannot be deemed
to have been expended in pursuit of the ultimate result achieved."
Id. at 435 (citation omitted). However, in cases where a claim for
relief involves "a common core of facts or will be based on related legal
theories" a fee award should not be reduced simply because the plaintiff
failed to prevail on every contention raised in the lawsuit. Id.
"The hours spent on unsuccessful claims should be excluded in considering
the amount of a reasonable fee only where the unsuccessful claims are
distinct in all respects from the successful claims." See EEO MD-110,
Ch. 11, Sect. 6 (A)(7) (citation omitted).
Here the unsuccessful claim is not fractionable. Both of complainant's
claims are based, at least in part, on a theory of race-, sex- or
national origin-based discrimination. Many of the same individuals were
involved in the events giving rise to both claims. Several witnesses
testified concerning both claims. Perhaps most significantly, as the AJ
concluded, complainant was retaliated against, as alleged in the second
complaint, because he had complained about the events giving rise to the
first complaint. It cannot be said that the claim on which complainant
did not prevail is �distinct in all respects� from the claim on which
he was successful. We conclude that no reimbursement will be disallowed
because complainant was not successful on all issues.
Adjustment of Lodestar
While there is a strong presumption that the lodestar represents
the reasonable fee, it "may be adjusted upward or downward, taking
into account [among other factors] the degree of success" achieved by
complainant. See EEO MD-110, at 11-7. In reducing the lodestar in the
past, we have rejected efforts -- like the agency's attempt here -- to
decrease fees using arbitrary mathematical formulas or inflexible ratios
comparing claims litigated to claims won. See, e.g., Cook v. United
States Postal Service, EEOC Appeal Nos. 01A02390 and 01A03897 (Mar. 13,
2001); cf. EEO MD-110, at 11-7 (explicitly stating that "a reasonable
fee may not be determined by mathematical formula based on monetary
relief obtained"). Instead, in cases like these where the complainant
failed on certain claims but prevailed on others, we have weighed the
overall degree of success against complainant's original goals. "Where
the complainant achieved only limited success, the complainant should
receive only the amount of fees that is reasonable in relation to the
results obtained .... Th[is] determination of the degree of success
should be made on a case-by-case basis." Id.
Here complainant failed to establish harassment on any basis or that
he was discriminated against on the basis of race, sex or national
origin when he was suspended. Nor was the amount of damages recovered,
$12481.11, large compared to the amount complainant attempted to prove.
According to complainant's attorney in his closing argument to the AJ,
complainant sought pecuniary damages in the amount of $18,886.36 and
non-pecuniary damages in the amount of $100,000. Weighing the ultimate
remedial outcome against the relief originally sought by complainant, we
conclude that the lodestar here should be reduced by 30 percent. Cf. EEO
MD-110, at 11-8 (indicating that a fee award may be adjusted upward or
downward, in appropriate circumstances, up to 75 percent of the original
lodestar).
SUMMARY
After making adjustment for the disallowances noted above, we find that
the hours reasonably expended and the corresponding hourly rates are
as follows:
Hours Rate Total
Lead Counsel 329.724 $275 $90,674.10
Associate Counsel 119.747 $200 $23,949.40
Paralegal 82.25 $70 $ 5757.50
__________
$120,381.00
30% Lodestar Reduction $ 36,114.30
Total $ 84,266.70
CONCLUSION
For the foregoing reasons, we find that Complainant is entitled to an
award of $84,266.70 in attorney's fees. No costs will be awarded.<1>
ORDER
Within thirty days from the date this decision becomes final, to the
extent it has not already done so, the agency shall tender to complainant
Eighty four thousand two hundred sixty six dollars and 70 cents
($84,266.70) in attorney's fees and costs.
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 payments to complainant.
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
August 15, 2002
__________________
Date
1Complainant has also submitted to the
Commission a supplemental fee petition on March 27, 2000, in which
he seeks reimbursement for legal fees incurred since the original
petition was submitted. We will not address the merits of that petition
in this decision. Having prevailed in this appeal, Complainant is
entitled to seek reimbursement for fees incurred in pursuing the appeal.
In connection with petitioning for an award of those fees, complainant
may petition for reimbursement of the fees sought in the March 27,
2000 fee petition.