01972841
03-28-2000
Patricia Rychlik, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency
Patricia Rychlik v. Department of the Navy
01972841
March 28, 2000
Patricia Rychlik, )
Complainant, )
) Appeal No. 01972841
v. ) Agency No. 96-67004-009
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency )
)
DECISION
INTRODUCTION
On February 13, 1997, Patricia Rychlik (complainant) initiated an appeal
to the Equal Employment Opportunity Commission (EEOC) from the final
decision of the Department of the Navy (agency), issued on January 28,
1997, concerning a request for attorney's fees in connection with her
equal employment opportunity (EEO) complaint.<1> The appeal is accepted
by the Commission in accordance with the provisions of EEOC Order
No. 960.001.<2>
ISSUE PRESENTED
The issue presented is whether the agency correctly calculated the amount
of attorney's fees and costs to which complainant is entitled.
BACKGROUND
On July 2, 1996, complainant filed a formal complaint with the agency
alleging discrimination due to sex (female) and retaliation (prior
EEO activity), as well as sexual harassment based on a hostile work
environment, when she was not promoted to a WG-08 position. On December
20, 1996, the agency made a certified Offer of Full Relief (OFR) to settle
complainant's complaint, and included in the OFR was an offer to pay
reasonable attorney's fees and costs from the date the formal complaint
was filed. Complainant's representative (CR) advised the agency by letter
dated January 16, 1997, that complainant agreed to accept the OFR and
that a request for attorney's fees would be submitted in accordance with
29 C.F.R. �1614.501(e)(2). Subsequently, CR submitted a fee petition to
the agency requesting attorney's fees totaling $9,190.71 for 61 hours of
services rendered during the period March 11, 1996, through January 6,
1997, at an hourly rate of $150.00, plus costs incurred of $40.71.
On January 28, 1997, the agency issued a final agency decision (FAD),
in which it granted CR attorney's fees in the amount of $2,929.50,
for 17.7 hours of work at an hourly rate of $150.00, and including
fees incurred preparing the fee petition. The agency did not dispute
the hourly rate requested by CR, but disallowed the 43.2 hours claimed
by CR for work performed prior to filing the formal complaint, on the
ground that attorney's fees are only authorized for services performed
after the filing of the formal complaint. The FAD also disallowed CR's
request for reimbursement of $40.71 in costs incurred, pursuant to 29
C.F.R. �1614.501. It is from this decision that complainant now appeals.
ANALYSIS AND FINDINGS
By federal regulation, an agency may award the applicant reasonable
attorney's fees, in accordance with existing case law and regulatory
standards, incurred in the processing of an EEO complaint. 64
Fed. Reg. 37644, 37659, (1999)(to be codified and hereinafter referred
to as 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).
Statutory attorney's fees may be recovered only for services rendered
after complainant has notified the agency that she is represented
by an attorney and has filed her formal complaint in the matter.
29 C.F.R. � 1614.501(e)(1)(iv); Clark v. Department of the Navy, EEOC
Appeal No. 01956234 (October 25, 1996); Erickson v. Department of the
Army, EEOC Appeal No. 01944011 (March 12, 1996). The Commission has held
that attorney's fees are not awardable for services rendered between the
time of notice and the time the complaint is filed. McKeel v. Dept. of
Energy, EEOC Appeal No. 01893703 (December 12, 1989). However,
fees may be paid for time expended by counsel to determine whether to
represent the complainant. Stauner v. Department of Agriculture, EEOC
Appeal No. 01890678 (April 13, 1989). The Commission has found that an
attorney may reasonably expend up to two hours for such determination.
Vincent v. Department of the Army, EEOC Request No. 05941012 (February
27, 1996).
In the instant case, complainant as a matter of record did not file
her formal complaint until July 2, 1996. As such, the agency properly
disallowed the 43.2 hours requested by CR for services performed on
behalf of complainant's claim beginning in March of 1996 and continuing
until the filing of the formal complaint. In so finding, we note that
agencies are not required to pay attorney fees for services performed
during the pre-complaint process, unless the Commission affirms on
appeal an Administrative Judge's decision finding of discrimination
after an agency takes final action by not implementing that decision,
which did not occur in the instant case. 64 Fed. Reg. 37,660 (1999) (to
be codified as 29 C.F.R. �1614.501(e)(1)(iv)); Clark, supra. However,
as the Commission allows an attorney fee up to two hours for time prior
to filing the formal complaint while the attorney determines whether
to accept the case, we award CR an additional two hours in compensable
attorney fees beyond the agency's determination, for time expended prior
to July 2, 1996. Vincent, supra.
The Commission notes that the agency awarded the full 17.7 hours of time
requested by CR after the filing of the formal complaint, from July
3, 1996 through January 6, 1997, but disallowed costs. An agency may
make payment of costs contingent on the provision of documentation to
support a claim for costs, such as bills for copying, telephone bills,
or receipts for mailings. Bernard v. Department of Veterans Affairs,
EEOC Appeal No. 01966861 (July 17, 1998). The record herein contains
insufficient documentation to support CR's claim for mileage, postage,
and photocopying costs claimed herein, and thus the agency properly
denied CR's request.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
MODIFY the final agency decision awarding attorney's fees as set forth
in the Order of the Commission, below.
ORDER (C1199)
The agency is ordered to take the following remedial actions:
(1) Pay to the complainant attorney's fees in the amount of $300.00,
that is, an additional two (2) hours at $150 per hour, in addition
to attorney's fees which may already have been paid to complainant.
The agency shall tender such payment in full to complainant no later
than thirty (30) calendar days after the date on which this decision
becomes final.
(2) The agency shall also pay to complainant reasonable attorney's
fees and costs incurred in pursuit of this appeal. Complainant's
representative shall provide the agency with all necessary documentation
of services rendered and costs incurred in connection with this appeal
within twenty (20) calendar days of the date on which this decision
becomes final. The agency may tender this payment separately, or together
with the payment specified in paragraph (1) of this Order. If this payment
is tendered separately, the agency shall tender it to complainant no
later than forty-five (45) calendar days after the date on which this
decision becomes final.
(3) 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 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
___________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
2 The Commission notes that complainant's representative has not made
specific contentions on appeal, while the agency requests that the appeal
be denied.