01A01715
03-19-2003
Peter N. Elaiho, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Army & Air Force Exchange Service (AAFES), Agency.
Peter N. Elaiho v. Department of Defense, Army & Air Force Exchange
Service
01A01715
03-19-03
.
Peter N. Elaiho,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Army & Air Force Exchange Service (AAFES),
Agency.
Appeal No. 01A01715
Agency No. 97-115
Hearing No. 310-98-5260X
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) concerning his claim for attorney's fees and costs as the
prevailing party in his complaint of unlawful employment discrimination
on the bases of race, national origin and reprisal in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant filed a formal complaint claiming
that he was discriminated against based on his race (Black), national
origin (Nigerian) and reprisal for prior EEO complaint activity when:
(1) he was subjected to hostile treatment by his supervisor; (2) he was
denied training; (3) his position was deleted; (4) he was downgraded
to a maintenance worker; and (5) his EEO complaints were deleted from
his e-mail files. After conducting a hearing, an EEOC Administrative
Judge (AJ) issued a decision on May 26, 1999, finding that complainant
prevailed on this complaint. The AJ noted that as the prevailing party,
it was recommended that complainant receive a reasonable amount of
attorney's fees. The agency adopted the AJ's decision and requested
that complainant's attorney submit his fees.
The record reflects that complainant's attorney submitted a fee petition
on August 2, 1999, requesting $9,898.00. Complainant's petition indicated
that the fee was based on 47.24 hours service rendered to the client
at an hourly rate of $200.00 per hour, which equaled $9448.00, plus 1.5
hours for preparation of the fee statement and declaration on August 1,
1999, which equaled $300.00, plus his initial consultation fee of $150.00
on July 21, 1997, for a grand total of $9,898.00. In a September 24,
1999, letter the agency offered to pay complainant's attorney $6,598.50
for his services. Complainant's attorney refused the agency's offer.
In its December 2, 1999, final decision, the agency determined that
complainant's attorney was not entitled to his full fee request. The
agency explained that it reduced the hours expended by a total of 5.75
hours as the entry dated 7/30/97 �to meet with your client, the union,
and a supervisor for one hour�, did not appear to be related to the
client's EEO case. Additionally, the entries dated 4/19/97, 4/20/97,
and 4/21/97 for a total of 9.5 hours in order to prepare and complete
the hearing closing argument appeared to the agency to be excessive
for a nine page brief with no legal research. The agency maintained
that it offered to pay one half of the 9.5 hours. The agency's offer
also reduced complainant's attorney's rate from $200.000 to $150.00,
which was the fixed fee rate on the agreement signed by the complainant.
On appeal, complainant's attorney maintains that the 7/30/97, meeting was
directly related to the case, as it was an attempt to have the action,
(complainant's demotion), later found to be discriminatory, modified.
He also indicated that possible alternatives to the downgrade were
discussed. Complainant's attorney also maintained that the 9.5 hours
to prepare and complete the closing argument was reasonable as the AJ's
recommended decision came directly from key points made in his closing
argument. With respect to the reduction in fee, complainant's attorney
indicated that $200.00 is the prevailing community rate and while he
agreed to charge complainant and, all federal clients for that matter,
$150.00, it was agreed that should he prevail, the prevailing rate of
$200.00 would be requested.
By regulation, a federal agency must award attorney's fees, in accordance
with existing law, for the successful processing of an EEO complaint.
29 C.F.R. � 1614.501(e). 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). 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 or her time was
expended.� See Colwell v. United States Postal Service, EEOC Appeal
No. 01A20930 (November 26, 2002). However, 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 Bernard
v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17,
1998). A reasonable hourly rate is a rate based on "prevailing market
rates in the relevant community" for attorneys of similar experience in
similar cases. Cooley v. Department of Veterans Affairs, EEOC Request
No. 05960748 (July 30, 1998) (quoting Blum v. Stenson, 465 U.S. 886
(1984)).
Further, a reasonable fee award may be assessed in light of factors such
as: (1) the time required (versus time expended) to complete the legal
work; (2) novelty or difficulty of the issues; (3) the requisite skill to
properly handle the case; (4) the degree to which counsel is precluded
from taking other cases; (5) the relief sought and results obtained;
and (6) the nature and length of the attorney-client relationship.
Complainant is only entitled to an award for time reasonably expended.
It does not always follow that the amount of time actually expended is
the amount of time reasonably expended. Rather, �billing judgment� is an
important component in fee setting, and hours that would not be properly
billed to a private client are also not properly billed to the agency
pursuant to a successful EEO claim. Counsel for the prevailing party
should make a �good faith effort� to exclude from a fee request hours that
are excessive, redundant or otherwise unnecessary. See Colwell, supra.
Based on a thorough review of the record, the Commission finds that
complainant's attorney's fees petition in the amount of $9,898.00 should
have been approved. We find that the agency erred when it reduced the
allowable attorney's fees. We find that more likely than not the 7/30/97
meeting was related to complainant's EEO complaint since the fact that he
was downgraded from the professional craft to a maintenance worker is one
of the issues in the complaint. With respect to the 9.5 hours expended
for the closing brief and argument, the Commission finds this reasonable.
Complainant's attorney maintains that the time was needed in order to
�pull together the testimony in a coherent fashion for the AJ.� We find
this argument valid, as the record shows that the responsible management
official (RMO)denied all claims so therefore complainant's attorney was
forced to call several witnesses to refute the accusations involved in
the complaint point by point. Finally, with respect to the hourly rate,
we find that the $200.00 per hour rate should prevail. We note that
even though complainant's attorney agreed to charge complainant a fixed
fee rate of $150.00, the agreement also included the provision that
the attorney's usual and customary fee was $200.00 per hour and should
they be successful in their complaint, a $200.00 per hour fee would be
charged to the agency. Notwithstanding the agreement, complainant's
attorney has shown that the $200.00 rate is the prevailing market rate
in his community for attorneys of similar experience for similar cases
and the agency has not shown anything to the contrary.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the
agency's response, and arguments and evidence not specifically addressed
in this decision, we modify
the FAD to comply with the order below.
ORDER
The agency shall take the following actions within 30 calendar days of
the date of receipt of this decision:
1. The agency shall issue a check representing payment of attorney's
fees and costs for $9,898.00.
2. The agency shall calculate and pay attorney's fees for the instant
complaint as directed in the �Attorney's Fees� section below.
3. The agency shall submit a report of compliance, as provided in the
section entitled �Implementation of the Commission's Decision� below.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
_____03-19-03_____________
Date