Myron R. Garrett, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 5, 2002
01A03891 (E.E.O.C. Sep. 5, 2002)

01A03891

09-05-2002

Myron R. Garrett, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Myron R. Garrett v. Department of Veterans Affairs

01A03891

09-05-02

.

Myron R. Garrett,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A03891

Agency Nos. 96-2189 & 97-1374

DECISION

On April 10, 2000, Myron R. Garrett (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 March 8, 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 $10,088.53 was proper.

BACKGROUND

On August 27, 1996 and April 9, 1997, complainant filed formal complaints

with the agency claiming (1) he was subjected to sexual and non-sexual

harassment and reprisal (prior EEO activity) from April through June

1996; and (2) he was discriminated against on the bases of sex, age, and

reprisal when he was assigned to a double shift in May 1996, reprimanded

in November 1996, was issued a letter of counseling in February 1997;

and, in April 1997, was assigned to the same shift as his supervisor,

against whom he had previously filed complaints of harassment and

sexual harassment. The complaints were consolidated for a hearing and

subsequent processing. Following the hearing, the Administrative Judge

(AJ) found that the incidents complainant described in Claim 1 were not

sufficiently severe or pervasive to constitute harassment, and as such,

could not constitute reprisal or discrimination on any basis. In Claim

2, the AJ found, in relevant part, that complainant was subjected to

reprisal when complainant was reprimanded and later received a letter

of counseling. The AJ found that complainant was entitled to equitable

relief, including having the letter of counseling removed and expunged

from his file, compensatory damages totaling $139.08, and attorney fees.

The parties attempted to settle the attorney's fee claim, but these

efforts were unsuccessful. Subsequently, complainant's attorney (CA)

submitted a fee petition to the agency requesting attorney's fees totaling

$22,546.53 for 73.7 hours of work performed at the rate of $200 per hour,

34 hours of work performed at $225 per hour,<1> and $156.53 in costs, for

services rendered to complainant between November 1996, and June 23, 1998.

On March 8, 2000, the agency issued a final agency decision awarding

CA $7,392.00 for 36.96 hours billed to complainant at $200 per hour,

$600.00 for six hours of travel time, which was calculated at one half

CA's hourly rate, $2,000.00 for ten hours to prepare and support the fee

petition, and $96.53 in costs for a total of $10,088.53. The agency

determined that CA submitted insufficient documentation to support an

hourly rate above $200 per hour, and reasoned that during a previous

conference on attorney fees, CA indicated that he would accept $200

per hour for the 7 hours spent on the fee petition after July 1, 1998.

The agency excluded 9.6 hours which CA claimed for client contact, but for

which the purpose of the call was not stated or implied in the petition,

and 2 hours spent reviewing the AJ and agency decisions on October 4,

1999, and November 18, 1999 as unnecessary work. The agency also denied

complainant 18.5 hours for preparing the fee petition, indicating that

CA spent 9 hours to research and prepare a brief on attorney's fee for

the AJ, but that there was no evidence that the AJ received or relied on

the brief. The agency reduced the remaining 61.6 hours of attorney time

by an additional 40% or 24.64 hours, thereby awarding CA 36.96 hours.

In reducing the fees, the agency reasoned that complainant did not

prevail on the first complaint, prevailed on only two of four accepted

issues in the second complaint, and prevailed on only one of the three

alleged bases in the second complaint. The agency also denied $60.00

in costs because CA provided insufficient documentation to support the

costs claimed. It is from this decision that complainant 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).

Title VII authorizes the award of reasonable attorneys' fees. 29

C.F.R. � 1614.501(e). To establish entitlement to fees, complainant

must first show that he is a prevailing party. Buckhannon Bd. and

Care Home, Inc. v. West Virginia Dept. of Health and Human Resources,

532 U.S. 598 (2001). A prevailing party for purposes of obtaining

attorney's fees is one who succeeds on any significant issue, and

achieves some of the benefit sought in bringing the action. Davis

v. Department of Transportation, EEOC Request No. 05970101 (February

4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)).

The starting point in calculating attorneys fees shall be the number

of hours reasonably expended multiplied by a reasonable hourly rate.

29 C.F.R. � 1614.501(e)(2)(ii)(B). Where a complainant does not prevail

on every issue, fees are only available for the work that was performed

with regard to the issue on which the complainant prevailed. The hours

spent on unsuccessful claims should be excluded in considering the amount

of a reasonable fee where the unsuccessful claims are distinct from the

successful claims. Hensley, 461 U.S. at 433.

ANALYSIS AND FINDINGS

Hourly Rate

CA sought to be compensated at a rate of $200 per hour for all work

performed prior to July 1, 1998, and $225 thereafter. However, as the

agency indicated, CA previously averred that he would accept $200 per hour

for the time he had spent on the fee petition. Hearing Transcript (HT),

vol. II, p. 381. Further, we note that other than his own assertions,

CA introduced no evidence, such as affidavits from other attorneys,

indicating the prevailing rates for attorneys in the geographic area

with the same length of experience and expertise as this attorney, to

support his claim for a higher hourly rate. Therefore, we concur with

the agency's determination that CA was reasonably entitled to $200 per

hour for all the hours claimed.

Reduction in Hours for Client Contact

CA contends that the agency improperly disallowed 9.6 hours of client

contact between November 18, 1996 and June 22, 1998, and that his

petition was not more detailed on these hours because he sought

to protect privileged communications with his client. However, as

the agency indicated, the requirement to describe the nature of the

contacts and their subject matter is limited and does not infringe on

the attorney-client privilege. Further, as complainant only received a

partial finding of discrimination, it was appropriate for the agency

to determine whether the hours spent were reasonably expended in

successfully representing complainant. Therefore, we find that the

deduction was proper.

Time Spent Reviewing AJ and Agency Decisions

CA contends that the agency improperly disallowed 2 hours spent

reviewing the revised recommended AJ decision and the agency's

final decision. The agency reasoned that this time was unnecessary

because it did nothing to advance the processing of the complaints.

We disagree. Specifically, CA indicated that he was required to read

both decisions so as to ascertain that the interests that he needed to

protect were protected, i.e., deadlines for appeals and for submitting

information for determination of attorney fees and costs. Therefore,

we find that the two hours were reasonably expended, and we order the

agency to pay complainant $400.00 accordingly.

Reduction for Unsuccessful Claims

There is a strong presumption that the 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. MD 110,

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.

CA contends that the agency should not have reduced the remaining 61.6

hours by 40% since the second complaint arose from the first complaint.

The records indicate that complainant was unsuccessful in Claim 1 and

prevailed on only two of four accepted issues in Claim 2, which was

related to only one of the three alleged bases in the second complaint.

Further, the record shows that the parties disagreed as to exactly how

successful complainant was in determining the appropriate percentage of

attorney fees to award. Complainant believed that he was only successful

on one-third of his claims. CA initially claimed that he was entitled to

full fees because all of his work was necessary to show the underlying

EEO activity in order to prevail on the basis of reprisal. However, CA

later averred that he was more than 50% successful. The AJ concluded

that CA was entitled to considerably more than 50%, but that a figure

between 33% and 100% would be reasonable. In light of this discussion

and later unsuccessful settlement efforts, the agency applied a 40%

reduction to the total hours billed in an effort to reflect a proper

estimate of the hours billed toward the issues on which complainant did

not prevail. A review of the record does not support CA's contention

that all the work performed on the unsuccessful claims was necessary to

prove reprisal, especially in light of the direct evidence of reprisal

in the record. As such, we find that the FAD's reduction of 40% is

appropriately reflective of the harm suffered and the relief received

by complainant. Therefore, complainant is entitled to an attorney's

fee award equivalent to 36.96 hours or 60% of the total hours claimed,

and we order the agency to pay complainant $7,392.00 accordingly.

Fees Incurred in Supporting the Fee Petition

CA contends that he was entitled to the full 28.5 hours he requested

as that time was reasonably spent in preparing and litigating the fee

petition. The agency did not dispute the 7 hours CA originally spent

to prepare the fee petition. However, the agency contended that the 9

hours spent researching and preparing the brief on attorney's fees for

the AJ, were not compensable because the brief was not in the record

and the AJ did not appear to rely on it in his decision. The agency

also questioned whether complainant needed to spend 4 hours researching

contemporaneous billing records. The agency did not explain with any

specificity why the remaining 8.5 hours were excluded.

A review of the record indicates that CA and the agency attorney agreed

that they would submit briefs on attorney's fees to the AJ if they

were unable to settle on an amount for the fees. HT, vol 2. p. 392.

The record shows that as of December 9, 1999, the parties were still

attempting to reach a settlement on fees. CA avers that he forwarded the

brief in question to the AJ and agency attorney on February 17, 1999;

CA included a copy of the brief on appeal. In reviewing the record,

we find that it would have been reasonable for CA to prepare and submit

a brief to the AJ in February 1999, even though agency was later unable

to locate the document, and the AJ did not specifically reference the

brief in his July 15, 1999 decision. Therefore, we find that complainant

is entitled to the 9 hours. As for the 4 hours spent on contemporaneous

billing records and attorney client-privileges, these were not matters

on which complainant prevailed on appeal, therefore complainant is not

entitled to the hours claimed. We note however, that while the agency

claimed that complainant spent four hours on research, the record shows

that CA spent a portion of that time, on December 13, 1999, discussing

settling attorney fees with the agency. Therefore, we find that CA

reasonably expended .5 hours during that time on settlement discussions.

We also find that CA reasonably expended .5 hours on December 9, 1999 in

settlement discussions with the agency. We find that complainant is only

entitled to 4 hours of the 8 requested for time spent gathering documents

in support of the fee petition in light of the fact that he had already

reasonably expended 7 hours to prepare the fee petition and 9 hours to

research and brief the issue before the AJ. In summary, CA reasonably

expended 11 additional hours over and above the 10 hours awarded by

the agency, for a total of 21 hours. This total represents, 7 hours

spent preparing the initial fee petition, 9 hours for researching and

preparing the brief on attorney fees, 1 hour for settlement discussions

with agency attorneys, and 4 hours for gathering documents in support

of the attorney's fee request. Accordingly, we order the agency to pay

complainant an additional $2,200 for work on the fee petition, plus the

$2,000.00 already awarded by the agency, for a total of $4,200.

Fees Incurred in Connection With Appeal

Having prevailed in substantial part on this appeal, CA is entitled to

an award of attorney's fees and costs associated with the prosecution

of this appeal. Here CA requested five additional hours for time he

spent defending the fee petition on appeal. We note that CA prepared a

four-page brief in support of his appeal, as such, the time requested

was reasonable. Therefore, we award CA an additional $1000.00 for the

five hours expended in appealing the FAD on attorney's fees.

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

$13,688.53, representing the $10,088.53 already calculated as reasonable

by the agency, plus an additional $3,600<2> for 18 hours calculated at

$200 per hour, which were 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 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

_____09-05-02_____________

Date

1This time was primarily spent preparing

the fee petition.

2This includes the $2,200 for the 11 additional hours awarded for

supporting the fee petition, $400 for the 2 hours spent reviewing the

AJ's revised decision and the agency FAD, and $1000.00 for the 5 hours

claimed for appealing the FAD on attorney's fees.