0120103783
03-01-2011
Richard R. DiGloria, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.
Richard R. DiGloria,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120103783
Agency No. E040048
DECISION
Following the Agency's August 20, 2010, final order concerning
compensatory damages, attorney's fees, and other associated costs,
Complainant filed a timely appeal which the Commission accepts pursuant to
29 C.F.R. � 1614.405(a). The Agency had previously found discrimination
regarding Complainant's denial of a reasonable accommodation in connection
with Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The Agency determined that because
Complainant had been denied an accommodation for morning tardiness caused
by medication, the Agency was in violation of the Rehabilitation Act.
The Agency awarded $5,000 in compensatory damages to Complainant.
Additionally, the Agency awarded $5,000 in attorney's fees and denied
$144.93 in claimed costs to Complainant. For the following reasons,
the Commission AFFIRMS the Agency's final order.
BACKGROUND
The record reflects that Complainant worked as a secretary in ATF's
Atlanta field office since 1988. Complainant had pre-existing medical
conditions from his military service and had a 70% disability rating
from the Department of Veterans Affairs. Complainant stated that he was
diagnosed with clinical depression in 1981 and was hospitalized at least
five times for major depression. Complainant was hospitalized in July
2001 for ten days and again in September/October 2004. Complainant was
often late to work. Complainant claimed his depression and insomnia
medications caused him to oversleep some mornings. Complainant's
supervisor required Complainant to provide medical documentation
whenever he was late for work. Complainant made a number of reasonable
accommodation requests to address the morning drowsiness he felt from
medications.
In his EEO complaint, Complainant claimed that he was denied reasonable
accommodation when the Agency: (1) did not change his work schedule, and
(2) failed to waive the medical documentation requirement. Additionally,
Complainant claimed that he was subjected to a hostile work environment
and discrimination based on sex, disability (physical and mental)
and reprisal for EEO claims filed in 1984 and 1988 when he was: (1)
issued leave restrictions; (2) charged AWOL on two occasions; (3)
reprimanded for failing to follow leave procedures; and (4) denied
reasonable accommodation.
The Agency found that its management had denied Complainant a reasonable
accommodation by not waiving the medical documentation requirement when
he was late for work. The Agency further found that the record did
not support Complainant's claims of a hostile work environment based
on sex, disability or retaliation, or Complainant's other reasonable
accommodation claim. Accordingly, the Agency awarded Complainant
attorney's fees and proven compensatory damages in connection with the
single violation. The Agency FAD also ordered management to remove
some AWOL charges from Complainant's record and compensate him for
these incidents. Finally the Agency concluded that Complainant was
eligible to request proven compensatory damages causally connected to
the discrimination and reasonable attorney's fees for work on the issues
for which Complainant prevailed.
The Agency requested that the parties reach resolution as to the amount
of compensatory damages and reasonable attorney's fees. The parties were
unable to arrive at an agreement. On March 3, 2010, the Agency invited
the parties to provide submissions supporting their positions and each
party submitted briefs. On August 20, 2010, the Agency issued its final
order awarding Complainant $5,000 in compensatory damages for emotional
and physical harm and $5,000 for reasonable attorney's fees. No other
relief was awarded.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission increase the Agency's
award of attorney's fees in this matter. Complainant is seeking an
additional $4,715 in attorney's fees. Complainant also requests that the
Commission reverse the Agency's decision to award no administrative costs
in this case.1 Complainant asserts that his "former counsel withdrew as
my counsel on April 26, 2010; therefore I am providing this supporting
statement without benefit of counsel." Complainant mainly reargues his
case for attorney's fees and costs.
The Agency determined that because Complainant had failed to provide,
inter alia, a detailed account of legal fees and associated costs
incurred in this matter, Complainant is not entitled to those fees
and costs that cannot be substantiated. The Agency requests that the
Commission affirm its attorney's fees award of $5,000 and denial of
associated costs to Complainant.
ANALYSIS AND FINDINGS
Title VII authorizes the award of reasonable attorney's fees, including
for an attorney's processing of a compensatory damages claim. 29 C.F.R. �
1614.501(e). To establish entitlement to attorney's fees, Complainant
must first show that he or she is a prevailing party. Buckhannon Bd. and
Care Home Inc. v. W. Va. 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. Dep't of Transp., EEOC Request No. 05970101 (Feb. 4,
1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)).
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); Bernard
v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998).
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.
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.
See Cerny v. Dep't of the Army, EEOC Request No. 05930899 (Oct. 19, 1994).
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. Elvin v. Dep't of Labor,
EEOC Request No. 01943425 (Aug. 31, 1995). 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
an agency pursuant to a successful EEO claim. Id. 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 Bernard, EEOC Appeal No. 01966861.
In its decision, the Agency explained that concerning attorney's fees
awarded, Complainant's attorney provided an affidavit, dated April 14,
2008, stating that Complainant had retained her on May 10, 2004, to
represent him in this complaint. Complainant's attorney stated that
she charged complainant an hourly rate of $150 per hour and an hourly
rate of $85 for her paralegal. She claimed that she worked a total of
76.2 hours on Complainant's case, and that 85% of the work she performed
"was based upon Complainant's prevailing claim. Complainant's attorney
claimed attorney's fees of $9,715.50 (which is approximately 64.77
hours at $150 p/hour). She also claimed costs for copying, postage
and overnight express mailing costs of $144.93. Complainant's attorney
did not submit a detailed affidavit explaining the basis for her hourly
rates or the prevailing rates in the community, a resume detailing her
experience and expertise in employment law cases, or anything showing
that the hourly rates charged in this case are comparable to attorneys
with similar experience in cases compared to this one. Complainant's
attorney did submit a billing record showing the dates she worked on
Complainant's case, as well as the amount of time worked and a brief
description of the work performed. Her record shows that she worked
for Complainant beginning on May 10, 2004, until April 11, 2008.
Another problem is that the billing record fails to describe or identify
the issues Complainant's attorney addressed. Therefore, it is difficult
to determine from the brief narrative description of work performed
what portion of the billing record was actually spent on the prevailing
issue, as opposed to the issues for which Complainant did not prevail.
In all fairness to Complainant's attorney, her billing record also fails
to include work she performed after April 11, 2008, in connection with
prosecuting the relief and attorney's fees in this case. Ordinarily,
the lack of a verified statement of rates and an affidavit could very
well cause the request for attorney's fees to be rejected. Inasmuch as
there is no evidence showing that Complainant's attorney spent 85% of
her time working on the prevailing claims, it is appropriate to reduce
her fee request because it is highly unlikely that she spent 85% of her
time working solely on the claim involving the medical documentation
requirement. And, even though Complainant's attorney did not verify
that she spent even half of her time working on the prevailing issue,
she also did not bill for the time she spent trying to resolve the relief,
and these negotiations apparently lasted until March 2010. Therefore, to
be fair, Complainant's attorney deserves some compensation for her time,
and $5,000 fairly compensates her under the circumstances of this case.
With respect to the request for $144.93 in costs, Complainant's attorney
provided no receipts or any other documentary evidence supporting these
costs. Adequate documentation of the expense incurred and the nature
of the expense is required in order to receive reimbursement of costs.
Since there is no way to verify the costs requested, the request for
costs is denied.
In sum, we find that the Agency's award of $5,000 in attorney's fees
in this matter to be appropriate. Complainant has submitted nothing on
appeal and there is nothing in the record which supports a higher award.
Further, the evidence of record is devoid of needed verification in
order to establish administrative costs.
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 affirm the Agency's final decision
because the evidence of record does not establish that Complainant is
entitled to any additional attorney's fees or administrative costs.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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
77960, Washington, DC 20013. 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 (Z0610)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
March 1, 2011
__________________
Date
1 Complainant is not challenging the Agency's compensatory damages award.
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0120103783
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103783