Samuel T. Cobb, III, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01A24465 (E.E.O.C. Oct. 27, 2003)

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.