[Redacted], Isadora G., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 15, 2023

Appeal No. 2021004291 (E.E.O.C. Mar. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Isadora G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021004291 Agency No. 200P-0605-2019101066 DECISION On July 23, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 17, 2021, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Assistant at the Agency’s Health Administration Service, VA Loma Linda Healthcare System facility in Loma Linda, California. On January 5, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (physical and mental), and reprisal for protected EEO activity under Title VII of the Civil Rights Act of 1964 when, inter alia, she was subjected to sexual harassment by a coworker. 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. 2021004291 2 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant proved that she was subjected to sexual harassment and the Agency was liable for the harassment. The decision also found that Complainant did not establish that she was denied a reasonable accommodation or that she was subjected to reprisal. The decision found Complainant was entitled to relief for the sexual harassment claim in the form of leave restoration and damages, as well as attorney’s fees. Complainant’s representative filed an attorney’s fee petition, seeking a total fee of $23,225.28 representing 66 hours of work at an hourly rate of $350. The Agency issued a final decision concerning Complainant’s attorney’s fee petition. The decision found that the requested hourly rate of $350 was reasonable and commensurate with the usual hourly rate for legal services in the area. The decision excluded 6.1 hours of time expended prior to the official notification of representation but allowed 3.5 hours of time for work done reviewing the case and determining whether to accept it. The decision also excluded an additional .6 hours of time expended on February 25, 2021 researching the appealability of Complainant’s unsuccessful discrimination claims as the appeal was still pending so Complainant was not a prevailing party on those issues. The decision further excluded 9.5 hours of time because the work was not relevant or necessary to the prosecution of Complainant’s successful sexual harassment claim, including 2.3 hours of redundant time spent reviewing Complainant’s interrogatories when the attorney had already noted time spent reviewing the report of investigation and time spent on Complainant’s unsuccessful appeal. The decision also reduced the total fee award by 50% to reflect Complainant’s mixed success on the merits of her complaint, noting that Complainant only succeeded on her sexual harassment claim but did not succeed on her claim of a denial of reasonable accommodation or of reprisal. The decision further awarded costs in the amount of $125.28 comprising 216 miles driven at $0.58 per mile. The decision also awarded travel time, noting that Complainant’s attorney did not specify the number of hours claimed but finding that 4 hours of travel time was reasonable based on a Google Maps estimate that the drive between the two addresses listed in the petition would take about 2 hours each way. The decision therefore awarded a total of $700 for travel, representing 4 hours at half the usual hourly rate, i.e. $175. The decision therefore awarded a total attorney’s fee of $9,540.28. Complainant appealed the Agency’s attorney’s fee decision. Neither Complainant nor the Agency filed a brief on appeal. ANALYSIS AND FINDINGS 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 2021004291 3 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”). By federal regulation, the agency is required to award attorney’s fees and costs for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. EEOC Regulation 29 C.F.R. § 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). There is a strong presumption that the number of hours reasonably expended multiplied by a reasonable hourly rate, 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 MD-110, Ch. 11 § VI.F. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id. In determining the degree of success, the Commission will consider all relief obtained in light of a complainant’s goals, and, if a complainant achieved only limited success, the complainant should recover fees that are reasonable in relation to the results obtained. Hensley, 461 U.S. at 434. While a reasonable fee should not be determined simply by mathematical formula, hours spent on unsuccessful claims should be excluded from the amount of a reasonable fee. Id. Attorney’s fees may not be recovered for work on unsuccessful claims. Id. at 434-35. Courts have held that fee applicants should exclude time expended on “truly fractionable” claims or issues on which they did not prevail. See Nat’l Ass’n of Concerned Veterans v. Sec’y of Defense, 675 F.2d 1319, 1327 n.13 (D.C. Cir. 1932). Claims are fractionable or unrelated when they involve distinctly different claims for relief that are based on different facts and legal theories. Hensley, 461 U.S. at 434-35. In cases where a claim for relief involves “a common core of facts or will be based on related legal theories,” however, a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Id. at 435. In this case, we find that the Agency’s decision properly accounted for Complainant’s degree of success on the merits by reducing the fee by 50%. Complainant’s case involved a sexual harassment claim, a denial of reasonable accommodation claim, as well as a claim of reprisal for making the instant complaint about her coworker’s sexual harassment. Complainant succeeded only on her sexual harassment claim but did not succeed in establishing that she was subjected to reprisal or denied a reasonable accommodation. We find that the Agency properly deemed Complainant’s sexual harassment claim to be more significant than the reprisal and denial of reasonable accommodation claims and therefore properly reduced the fee by 50% to reflect Complainant’s limited success on the merits of all her accepted claims. 2021004291 4 We further find that the Agency properly excluded a total of 10.1 hours as not relevant to the issue of Complainant’s sexual harassment claim. The Agency excluded 0.6 hours of time billed on February 25, 2021 on researching the appealability of the unsuccessful claims. The additional 9.5 hours the Agency excluded also were not relevant to Complainant’s successful claim as they explicitly concerned Complainant’s concerns about ongoing reprisal, medication for a serious illness, and 2.1 hours of work performed after the issuance of the Agency’s compensatory damages decision and therefore related to the unsuccessful claims. Pursuant to 29 C.F.R. 1613.501(e)(1)(iv), attorney’s fees may not be awarded for services performed prior to the filing of the formal complaint, “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.” See Ponce v. Dep’t of the Air Force, EEOC Appeal No. 01903196 (Sept. 14, 1990). In this case, the Agency awarded 3.5 hours of time billed prior to the notification of representation. We find that 3.5 hours is reasonable considering the amount of time necessary to review a complaint before determining whether to accept a case. We therefore affirm the Agency’s award of 3.5 hours prior to June 20, 2019, spent reviewing Complainant’s documentation and interviewing Complainant. See generally McKeel v. Dep’t of Energy, EEOC Appeal No. 01893703 (December 13, 1989). The Commission has held that the rate for an attorney’s travel time should be reduced by 50 percent from the regular rate charge. See Hoy v. Dep’t of the Air Force, EEOC Appeal No. 01951243 (Jan. 26, 1996). We find that the Agency’s estimate of 4 hours of travel time for the attorney’s representative time was reasonable, relying on the addresses provided for the representative’s starting and ending destination and using the approximate driving time given on Google Maps.2 We therefore affirm the Agency’s award of $700 for travel, representing 4 hours of time at an hourly rate of $175. 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 a total attorney’s fee of $9,540.28. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2 We do not address the Agency’s award of $125.28 in costs representing 216 miles driven at a rate of 0.58 per mile as Complainant’s fee petition did not specifically include a calculation of expenses and therefore, the Agency’s award of travel costs was not adverse to Complainant. 2021004291 5 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021004291 6 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 March 15, 2023 Date