0120151925
05-23-2017
Nenita S.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nenita S.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151925
Agency No. 200P06532013104753
DECISION
On May 15, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 17, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Correspondence Clerk at the Agency's Medical Center in Rosenburg, Oregon.
On January 23, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (gender stereotyping and sexual orientation), disability, and in retaliation when, on September 26, 2013, Complainant was terminated during her probationary period.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested an immediate final decision. Consequently, on November 17, 2014, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant proved that the Agency subjected her to discrimination in violation of Title VII and not based on her disability.
Pursuant to the finding, the Agency ordered Complainant's Attorney (Attorney) to submit a petition for fees and costs. On February 3, 2015, the Attorney submitted a fee petition. The petition requested compensation for 46.3 hours of work at a billable hourly rate of $ 300.00. In addition, the Attorney noted that his paralegal (Paralegal) performed 4.2 hours at an hourly rate of $ 75.00. The Attorney also sought 1.5 hours for the preparation of the fee petition. The Attorney indicated that he used an expert attorney (Expert Attorney) to review the petition and to provide supporting documentation. The Expert Attorney provided that her standard billable rate was $ 275 per hour for the 1.97 hours of her time. As such, the Expert Attorney sought $ 541.75 for her services. Finally, the Attorney sought $ 74.00 in travel expenses and $ 137.50 for fees to obtain Complainant's medical documentation regarding her claim of disability-based discrimination.
The Agency issued its final decision regarding fees and costs. As for the hours expended, the Agency reduced the hours requested by the Attorney for work done prior to the filing of the formal complaint. The Agency noted that based on case precedent, the Commission finds it reasonable to take up to two hours to review a case to determine whether to accept it. In the instant matter, the Agency noted that Complainant retained the Attorney shortly after contacting the EEO Counselor. The Agency noted that the formal complaint was filed on January 23, 2014. The Agency indicated that the Attorney fee petition included 10.4 hours expended by the Attorney and 1.2 hours expended by the Paralegal prior to the filing of the formal complaint. Based on Commission guidance, the Agency allowed 2 hours for the Attorney and reduced the hours expended for the Attorney by 8.4 hours and for the Paralegal by 1.2 hours. The Agency found that Attorney's billable hourly rate of $ 300 was reasonable. The Agency also allowed 1.5 hours for the Attorney's preparation of the fee petition.
Turning to costs, the Agency noted that Complainant did not prevail for on her claim of disability based discrimination. As such, the Agency denied the request for $ 137.50 for her medical records. The Agency allowed for the Attorney's request for $ 74 in transportation fees. As for the Expert Attorney who reviewed the fee petition, the Agency held that it was not customary to compensate other attorneys for such supporting affidavit. As such, the Agency denied the Attorney's request for $ 541.75 for the Expert Attorney. Therefore, the Agency awarded Complainant the following:
Item Hours Expended Hourly Rate Item Total Attorney 36.5 + 1.5 $ 300 $ 11,400 Paralegal 3 $ 75 $ 225 Travel Costs $ 74
Accordingly, the Agency awarded Complainant a total of $ 11,699.00 in Attorney's fees and costs.
This appeal followed. The Attorney argued that the Agency should not have excluded 8.4 hours for him and 1.2 hours for the Paralegal. He indicated that the time expended was time used to help resolve the matter informally through the mediation process prior to filing the formal complaint. The Attorney argued that Complainant should not have to pay for this time. The Attorney also challenged the Agency's denial of the Expert Attorney's fees considering the Attorney was required to obtain the supporting affidavit based on the Agency's order. The Attorney did not challenge the Agency's denial of costs related to the medical documentation.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Attorney's Fees and Costs
The Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing complainant. 29 C.F.R. � 1614.501(e). Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. � 1614.501 (e)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424 (1983). All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant, or otherwise unnecessary hours. A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. An application for attorney's fees must include a verified statement of attorney's fees accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. While the attorney is not required to record in great detail the manner in which each minute of his time was expended, the attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. See Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). The attorney requesting the fee award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003).
Agency's Reduction of Hours
EEOC Regulation 29 C.F.R. � 1614.501(e)(l)(iv) provides that:
Attorney's fees shall be paid for services performed by an attorney after the filing of a written complaint, provided that the attorney provides reasonable notice 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. Agencies are not required to pay attorney's fees for services performed during the pre-complaint process, except that fees are allowable when the Commission affirms on appeal an administrative judge's decision finding discrimination after an agency takes final action by not implementing an administrative judge's decision. Written submissions to the agency that are signed by the representative shall be deemed to constitute notice of representation.
The Agency deducted all pre-complaint services, except two hours expended by Attorney. We agree with the agency's reduction in fees in this regard. See Vincent v. Dep't of the Army, EEOC Request No. 05941012 (Feb. 27, 1996). The Commission has previously found that an attorney may reasonably expend up to two hours to determine whether to represent a complainant. See Walker v. Dep't of Agriculture, EEOC Appeal No. 01944314 (August 4, 1995); Flora v. Department of Agriculture, EEOC Appeal No. 01943058 (May 26, 1995); Floxie v. U.S. Postal Serv., EEOC Appeal No. 01940384 (Oct. 14, 1994); Stauner v. Dep't of Agriculture, EEOC Appeal No. 01890678 (April 13, 1989). As such, we agree with the Agency's exclusion of 8.4 hours for the Attorney and 1.2 hours for the Paralegal. Therefore, the Agency correctly determined that the hours expended by the Attorney was 36.5 hours for representing Complainant in addition to 1.5 hour expended in preparation of the fee petition for a total of 38 hours.
We note that the Agency accepted the hourly rates for the Attorney and the Paralegal. As such, we discern no reason to modify the Agency's finding as to the reasonable hourly rate. Therefore, we find that Complainant is entitled to fees for the Attorney in the amount of $ 11,400 and for the Paralegal in the amount of $ 225.
Agency's Reduction of Cost
The Attorney indicated that the fee petition was reviewed by the Expert Attorney who also provided a supporting affidavit. In that affidavit, she indicated that her normal billable rate is $ 275 an hour and that she expended 1.97 hours on the fee petition. The Agency already provided the Attorney 1.5 hours. We find that the Expert Attorney's review of the fee petition was duplicative of the work performed by the Attorney. As such, we strike 1.5 hours from the hours expended by the Expert Attorney. As such, we find that Complainant should be awarded 0.47 hours for providing an affidavit in support of the reasonableness of the Attorney's hourly rate. Therefore, we award Complainant $ 129.25 in costs in addition to the $ 74 already awarded by the Agency for a total of $ 203.25.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's award of fees to Complainant for the Attorney and the Paralegal and MODIFY the award of costs to Complainant.
ORDER (C0610)
The Agency is ordered to pay Complainant $ 11,625 in fees and $ 203.25 in costs for a total of $ 11,828.25.
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 (K0610)
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 77960, Washington, DC 20013. 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 (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 23, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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