0120054343
11-20-2007
Patricia Pearman, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Patricia Pearman,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200543431
Agency No. 0057095110
DECISION
Pursuant to 29 C.F.R. �1614.405, the Commission accepts complainant's
appeal from the agency's May 6, 2005 final decision in the above-entitled
matter. This appeal concerns only the issue of additional attorney's
fees incurred by complainant in the pursuit of her prior appeal.
(Pearman v. Department of the Navy, EEOC Appeal No. 07A40063 (November
18, 2004)).
As a preliminary matter, the agency contends that complainant's
appeal is untimely in terms of when she submitted her petition for
additional attorney's fees incurred in her partially successful appeal.
The agency argues that the time for complainant to have requested
additional attorney's fees was within thirty days of the Commission's
decision denying reconsideration.2 Complainant, in turn, argues that she
filed a timely appeal from the agency's final order dated May 19, 2003,
denying her request for additional attorney's fees. The Commission finds
that complainant's appeal is timely based on our order which required
complainant to file her request for attorney's fees by submission of a
verified petition to the agency.
Our finding of timeliness is also based on the fact that complainant
was not required to submit her additional petition to the agency until
the Commission's decision became final. Here, the agency challenged
the Commission's order that required it to pay attorney's fees in a
request for reconsideration and thus, our decision was not final until
after the Commission decided the reconsideration request. Complainant
was required to and did make her claim for additional attorney's fees
to the agency within thirty days of April 7, 2005 or by May 6, 2005.
The record revealed that complainant submitted her verified petition to
the agency on April 20, 2005. The agency responded to complainant's
petition by letter dated May 6, 2005 which we construe as its final
decision denying complainant's claim for additional attorney's fees.
We conclude, therefore, that her appeal from the agency's denial on June
1, 2005 is timely.
Turning to the substance of complainant's petition for attorney's fees,
the Commission already awarded attorney's fees for her successful claim of
discrimination based on reprisal. Complainant is also entitled to recover
reasonable attorney's fees for work at the appeal stage provided she is a
prevailing party. Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), ch.11-5. (November 9, 1999). On appeal,
complainant contested the AJ's award of compensatory, non-pecuniary
damages as being too low and the lack of any award for future pecuniary
damages as error. Complainant also claimed that the AJ erred in not
finding that she was sexually harassed. The Commission's decision
determined that the AJ was correct in finding no sexual harassment
because the agency properly responded to her co-worker's actions,
but found error in the AJ's failure to award future pecuniary damages.
The Commission also found that the AJ's award of non-pecuniary damages
was not based on Commission precedent and should be increased.
Under these circumstances, we find that complainant is a prevailing party,
in part, on her appeal and she may recover her attorney's fees expended
for this effort. Buckhannon Bd. and Care Home Inc. v. West Virginia
Dept. of Health and Human Resources, 532 U.S. 598 (2001). A prevailing
party for this purpose 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)).
Additionally, Title VII authorizes the award of reasonable attorney's
fees for an attorney's processing of a compensatory damages claim.
29 C.F.R. � 1614.501(e). The agency has submitted no opposition to the
amounts set forth in complainant's fee petition, nor did it address the
propriety of the charges in its final decision, therefore, we will review
the charges for a determination of reasonableness.
The fee award is ordinarily determined by multiplying a reasonable
number of hours expended on the case by a reasonable hourly rate,
also known as a "lodestar." See 29 C.F.R. � 1614.501(e)(2)(ii)(B);
Hensley v. Eckerhart, 461 U.S.424, 434 (1983). In determining the
number of hours 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." Id. However, the attorney does have
the burden of identifying the subject matters which he spent his time
by submitting sufficiently detailed and contemporaneous time records to
ensure that the time spent was accurately recorded. Id. In this matter,
complainant's attorney represents that he expended 22.39 hours defending
against the agency's appeal as well as pursuing complainant's own appeal.
Complainant stated that her attorney filed a brief in support of her
appeal, an opposition to the agency's brief, and she was required to
defend against the agency's petition for reconsideration. She maintains,
and the agency does not dispute, that these hours already deducted time
spent on unsuccessful claims. Verified Petition at 2. In addition,
complainant's attorney verified that his hourly rate of $250.00 per hour
is the reasonable and customary rate charged in the community in which
he practices.3 We find that these hours and hourly rate are properly
justified and reasonable and the verified petition for attorney's fees
is approved for $5,597.50. We deny complainant's claim for costs as
unsupported by proper documentation.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to reverse in part, the agency's final
order denying attorney's fees. Complainant's petition for attorney's
fees is granted, her request for costs is denied. The agency is directed
to comply with the Order as set forth below.
ORDER (D0900)
Within 45 days of the date this decision becomes final, the agency is
ordered to pay complainant attorney's fees in the amount of $5,597.50.
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 back pay and other benefits due complainant,
including evidence 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 (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
___11/20/07_______________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 Pearman v. Department of the Navy, Request No. 05A50290 (April 7,
2005).
3 The AJ already approved this hourly rate as reasonable in her decision.
Decision at 20.
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0120054343
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120054343