01A24465
10-27-2003
Samuel T. Cobb, III, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Samuel T. Cobb, III v. Department of the Treasury
01A24465
October 27, 2003
.
Samuel T. Cobb, III,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A24465
Agency No. 96-2134
DECISION
INTRODUCTION
On August 23, 2002, Samuel Cobb, III (complainant) timely initiated an
appeal to the Equal Employment Opportunity Commission (EEOC or Commission)
from the final decision (FAD) of the Department of the Treasury (agency),
issued July 2, 2002,<1> concerning a request for attorney's fees in
connection with his equal employment opportunity (EEO) complaint.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission modifies the agency's FAD.
ISSUE PRESENTED
The issue presented on appeal is whether the agency's assessment of
reasonable attorney's fees and costs in the amount of $3,061.00 was
proper.
BACKGROUND
During the relevant time of the complaint, complainant was employed with
the Bureau of Engraving and Printing (BEP) in Forth Worth, Texas as a
Police Officer. Complainant filed his formal complaint on February 2,
1996, in which he alleged discrimination, in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. and Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq., on the bases of disability
(exposure to toxic chemicals) and reprisal, for prior EEO activity when
he received a rating of �Fully Successful� for the period from October 1,
1994 to September 30, 1995.
Complainant requested a FAD, instead of a hearing before an EEOC
Administrative Judge. On December 2, 1999, the agency issued a FAD
finding no discrimination. This finding was reversed by the EEOC on
appeal and such decision was affirmed on request for reconsideration.
See Cobb, III v. Department of Treasury, EEOC Appeal No. 01972195 (July
20, 2001), req. for recon. denied, Cobb, III v. Department of Treasury,
EEOC Request No. 05A11026 (November 28, 2001). In its denial of the
agency's request for reconsideration, the Commission ordered the agency
to, inter alia, award reasonable attorney's fees.
On June 5, 2002, complainant, through his attorney, submitted a request
for attorney's fees and costs in the amount of $38,375.85. The agency
disputed much of the attorney's fees claim as follows:
Pre-Complaint Services
Complainant's attorney billed and requests 148.3 hours of pre-complaint
services from March 15, 1995 to February 1, 1996<2>, which totaled
$17,208.10. The agency deducted all pre-complaint services, except
two hours expended by complainant's attorney to determine whether to
represent complainant. We agree with the agency's reduction in fees
in this regard. See Vincent v. Department of the Army, EEOC Request
No. 05941012 (February 27, 1996). Accordingly, complainant's attorney
is entitled to a fee of $400 for his pre-complaint services.
Reasonable Hourly Rate
Complainant's attorney claimed an hourly rate of $200 for out-of-court
work and $300 for court/administrative hearing activity. While the
agency noted the scant evidence that complainant's attorney provided
in support of his $200 hourly rate, the agency declined to challenge
the reasonableness of the $200 hourly rate. With respect to the $300
hourly rate, the agency stated that complainant's attorney was not
entitled to any claimed �trial� or �hearing� work since the complainant
never requested a hearing. We agree with the agency's exclusion of all
entries related to hearing work.
The agency also disputes the claims for two attorneys (SL and MB).
Complainant's attorney claimed an hourly rate of $200 for these
attorneys without any evidence whatsoever as to the reasonableness of
this rate for these attorneys. The agency point out that there is no
affidavit from these attorneys as to their qualifications, experience,
or reputation in the community. In addition, the agency notes that there
is no explanation by complainant's attorney as to why SL was listed as
�staff� prior to January 16, 1996 and charged at an hourly rate of $45,
but then charged at an hourly rate of $200 and $300 thereafter. We agree
that there is no support in the record as to the reasonable hourly rate
for SL and MB. However, there is evidence in the record to support an
hourly rate of $100 for paralegals in the relevant community. Therefore,
we will apply the paralegal hourly rate to SL and MB. Accordingly,
complainant's attorney is entitled to payment of paralegal services in
the amount of $771 ($100 x 7.71 hours<3>).
Consultant Fees
Complainant's attorney also claims 74 hours after February 1, 1996,
for a consultant (PD) at the hourly rate of $150. The agency
argues that consultants' fees are not reimburseable under 29
C.F.R. 1614.501(e)(1)(iii). In addition, the agency argues that
complainant's attorney has provided no information, whatsoever,
regarding PD. Accordingly, the agency argues that the reasonableness
or necessity of PD has not been established by complainant's counsel.
In addition, the agency notes that complainant's counsel has failed to
explain why PD was originally classified as �staff� and later classified
as a �consultant� with an increase of his hourly rate from $45 to $150.
Accordingly, the agency excluded PD's fees because complainant's attorney
failed to establish that the services were necessary and that such
services are generally recognized by the relevant legal community.
While a prevailing complainant is entitled to expert fees as part of
recoverable attorney's fees, recovery is generally limited to testifying
experts, but fees may be awarded for non-testifying experts if the
complainant can show that the expert's services were reasonably necessary
to the case. See EEOC Management Directive 110, p. 11-4 (November 9,
1999). However, complainant's attorney has failed to meet this burden.
Accordingly, we agree with the agency and exclude all entries of PD from
the attorney's fees petition.
Staff Fees
In the fee petition, complainant's attorney claims 8.16 hours (after
the filing date) for secretarial/staff services, such as typing and
copying for three different employees at a rate of $45.00 per hour.
The agency argues that complainant is not entitled to compensation for
clerical services. We agree. The Commission has long held that clerical
services are not included in attorney's fees awards. See EEOC Management
Directive 110, p. 11-4 (November 9, 1999).
Accordingly, and for the reasons set forth above, we find that complainant
is entitled to $3,705, in attorneys fees<4> and $197.75 in costs.
ORDER
To the extent that the agency has not done so already, the agency is
ordered to take the following remedial action:
1. Within thirty (30) days from the date this decision becomes final,
the agency shall pay complainant attorney's fees of $3,705 and costs
of $197.75.
2. 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 verifying
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
October 27, 2003
__________________
Date
1 While the agency dated its FAD July 2, 2002, there is no evidence to
support the finding that the FAD was mailed on that date. In addition,
complainant asserts that the FAD was mailed on July 22, 2002 and received
on July 25, 2002. Accordingly, we find the appeal was timely filed.
2 Complainant filed his formal complaint on February 2, 1996.
3 The dates for such services include February 5, 23, March 6, April 8,
19, July 17, and October 4, 1996.
4 This amount includes $2,534 or 200 x 12.67 for complainant's attorney's
post-complaint services, $400 for complainant's attorney's pre-complaint
services, and $771 for paralegal services.