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.