Sheila Hendley, Complainant,v.Alberto Gonzales, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 30, 2005
01a43034 (E.E.O.C. Mar. 30, 2005)

01a43034

03-30-2005

Sheila Hendley, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.


Sheila Hendley v. Department of Justice

01A43034

03-30-05

.

Sheila Hendley,

Complainant,

v.

Alberto Gonzales,

Attorney General,

Department of Justice,

Agency.

Appeal No. 01A43034

Agency No. P958649

DECISION

Complainant, by and through counsel, initiated an appeal to the Equal

Employment Opportunity Commission from a final agency decision<1>, dated

February 25, 2004, concerning an award of attorney's fees and costs.

This appeal is accepted by the Commission in accordance with 29 C.F.R. �

1614.405.

On January 31, 2004, complainant filed a petition with the agency seeking

$25,532.50 in attorney's fees for the expenditure of 134 hours of service

and $523.53 in costs for appeal work performed for the period July 16,

2001 to January 29, 2003.<2> However, in a FAD dated February 25,

2004, the agency determined that complainant's attorney was entitled to

only $4,137.60 in fees for the expenditure of 17 hours of service and

not entitled to any costs. The agency reasoned that fees claimed were

duplicative, excessive and �too sketchy� to justify the amount claimed

and costs were not documented by receipts.<3>

Complainant, through her attorney, appealed the FAD. In support

of this appeal, complainant's attorney submitted to the Commission a

detailed brief explaining and substantiating his request for $25,532.50

in attorney's fees and $523.53 in costs. Complainant's attorney argued

that he is entitled to the full amount of fees and costs set forth in

the fee petition as these fees and costs were reasonably incurred in

the damages appeal in the case and that the agency's cursory opposition

and across the board reduction of more than 80% of claimed fees and

denial of all claimed costs were unjustified. Furthermore, complainant's

attorney requested an upward adjustment of his hourly rate from $240.00 to

$250.00 to reflect his current customary billing rate and he requested a

supplement award of $1125.00 in attorney's fees for 4.5 hours of services

@ $250.00 per/hour in preparing the brief in the instant appeal.

In opposition to complainant's appeal, the agency argues that its decision

on complainant's petition for attorney's fees and costs was proper and

should be affirmed.

It is clear that this Commission may award complainant reasonable

attorney's fees and other costs incurred in the processing of a

complaint regarding allegations of discrimination in violation of Title

VII. See 29 C.F.R. �1614.501(e). Indeed, a finding of discrimination

raises a presumption of entitlement to an award of attorney's fees,

and any such award of attorney's fees or costs must be paid by the

agency that committed the unlawful discrimination. See 29 C.F.R. �

1614.501(e)(1)(i), (ii). The precise amount of attorney's fees due

is typically determined by multiplying the number of hours reasonably

expended by the attorney in question by a reasonable hourly rate. See

29 C.F.R. � 1614.501(e)(2)(ii)(B). See also, Hensley v. Eckerhart,

461 U.S. 424, 434 (1983). This amount is often referred to as the

�lodestar.� There is a strong presumption that this amount represents

the reasonable fee, though in limited circumstances, 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(a)(2)(ii)(B). However, any party seeking to deviate

from the lodestar has the burden of justifying the propriety of such a

deviation. See EEO Management Directive-110, at 11-8. In this case,

the agency would have us reduce the lodestar, and thus bears the burden

of showing why the decrease is appropriate. EEO MD-110, at 11-1.

The agency attempts to do so by claiming that: (1) complainant's attorney

requests fees for pleadings that were untimely and/or duplicative of

earlier filings and such requests are not compensable; (2) complainant's

attorney was unsuccessful on his cross request for reconsideration and

thus fees for this cross petition should be subject to a pro rata cut;

(3) complainant's attorney has failed to show that a second attorney

was necessary for the damages portion of the case and as such the

second attorney should not be approved; and (4) complainant's attorney

failed to submit receipts for costs and thus, costs claimed are not

reimbursable. See Agency's Brief Responding to Complainant's Fee Petition,

dated June 2, 2004.

After a careful review of the fee petition and the statements on appeal,

the Commission finds that the billable hours claimed by complainant's

attorney were not excessive or duplicative but rather, were reasonable

in view of the complexity of the factual and legal matters at issue,

the extent and intensity of the litigation efforts on the part of both

parties, and the voluminous record generated by this case on appeal.<4>

With regard to complainant's brief in opposition to the agency's request

for reconsideration, we find that the 18.5 hours billed by complainant's

lead counsel and 1.9 hours billed by complainant's second counsel was

reasonable and necessary to respond to the substantive arguments raised

by the agency in its request for reconsideration. That the agency's

RTR was subsequently denied by the Commission as untimely, does not

mean the complainant's opposition brief was futile. To the contrary,

until the Commission rendered a decision on the matter, it was incumbent

on complainant's counsel to vigorously advocate on behalf of his client

in anticipation of a number of potential outcomes. That complainant's

counsel included several paragraphs in a 16 page brief identifying areas

the Commission could consider improvements favoring complainant does

not warrant a �pro rata cut� for an unsuccessful cross RTR. We further

find that the itemized fee statement and sworn affidavit submitted by

complainant's lead counsel adequately substantiated the 5.3 hours billed

(at a reduced hourly rate of $150.00) for the second attorney and the

nature of the services rendered by the second attorney were not shown

to be duplicative, excessive or unnecessary.

The record evidence shows that complainant sought reimbursement of $523.53

in costs for: photocopy charges ($272.50); postage expenses ($91.62);

overnight delivery of documents and courier services ($121.50); long

distance telephone charges ($8.02); and computerized legal research

($29.89). Commission precedent requires that a petition seeking

reimbursement of costs be supported by detailed documentation, including

receipts. See Canady v. Department of the Army, EEOC Request No. 05890226

(December 27, 1989). While complainant's attorney provided an affidavit

detailing the specific costs incurred in connection with the appeal

work performed, the record is void of receipts or bills documenting such

costs. As such, we find that the agency properly denied the attorney's

request for costs for failure to provide adequate documentation.

Complainant's counsel requests compensation at his current customary

hourly rate of $250.00 instead of the then-hourly rate of $240.00,

which was awarded by the Commission in its 2003 Order. See Hendley

v. Ashcroft, EEOC Appeal No. 01A20977 (May 15, 2003). The agency

argues that the $240.00 rate should apply. The Commission has held

that consistent with prevailing case law, an adjustment for delay due

to the length of litigation justifies granting a request for current

rather than historic hourly rates. Moreno v. Department of Veterans

Affairs, EEOC Appeal No. 10943104 (February 14, 1996). Here, the

attorney requested a modest upward adjustment of his historic hourly

rate of $240.00 to his current customary hourly rate of $250.00. The

rate is based on the attorney's affidavit attesting to his more than

fourteen years of experience in employment litigation including serving

as a partner in a law firm since 1997; the prevailing market rate for

partners at similar firms with similar skill, experience and knowledge;

and the rate he routinely and customarily charges the firm's paying

clients since January 1, 2004. The Commission views the attorney's own

customary billing rate as the most reliable evidence of prevailing rates,

therefore, we accept the attorney's representation of his customary

billing rate of $250.00 per/hour. See Neves v. Department of Veterans

Affairs, EEOC Appeal No. 01974717 (January 14, 2000).

Finally, complainant's attorney submitted to the Commission a supplemental

affidavit requesting a fee award of $1125.00 for 4.5 hours of services

@ $250.00 per/hour for preparation of the brief in connection with

the instant appeal. We find that this fee is reasonable and that the

affidavit contained sufficient detail to support the request. As such,

we order the agency to award complainant attorney's fees in the amount

of $1125.00 for services rendered in connection with this appeal.

Accordingly, it is the decision of the Commission to modify the final

agency decision and to award complainant attorney's fees as discussed

in this decision and as set forth in the ORDER below.

ORDER (D0403)

The agency is ordered to take the following remedial action:

1. Within thirty (30) calendar days of the date this decision becomes

final and, to the extent that it has not already done so, the agency

shall pay $25,532.50 in attorney's fees for services rendered for the

period July 16, 2001 to January 29, 2003, and pay an additional $1125.00

in attorney's fees for services rendered in connection with the instant

appeal, for a total award of $26,657.50 in attorney's fees.

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 evidence that the remedial 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 (OF) 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

____03-30-05_________________

Date

1 We will treat the agency's correspondence dated February 25, 2004,

as a FAD as it makes a determination regarding the award of attorney's

fees and costs. We note however, that this FAD does not comply with the

Commission regulations in that it fails to include a notice of right to

appeal to the EEOC along with EEOC Form 573, Notice of Appeal/Petition.

See 29 C.F.R. � 1614.501(e)(2)(ii)(A). We hereby direct the agency to

abide by the Commission's regulations in the issuance of a FAD and in

all other matters.

2 In a previous decision, the Commission awarded attorneys fees and costs

for the period ending June 28, 2001. See Sheila Hendley v. John Ashcroft,

EEOC Appeal No. 01A20977 (May 15, 2003).

3 Specifically, the agency denied the 5.3 hours claimed by JW as an

attorney and the 42.50 hours claimed by JW as a paralegal, arguing that

appropriate documentation was not provided and the work claimed was

duplicative and excessive. The agency reduced the 86.20 hours claimed

by complainant's lead attorney, DW, by 60%, asserting that the work was

redundant, repetitive and untimely, and then reduced the hours claimed

an additional 50% arguing that the attorney was unsuccessful in his

cross request for reconsideration.

4 We note that this was a protracted case which originated in 1995 with

complainant's counsel assuming the case in 1997, after which he has

expended considerable time and effort and obtained excellent results

including a compensatory damage award in excess of $145,000. See Hendley

v. Ashcroft, EEOC Appeal No. 01A20977 (May 15, 2003). Given the extent

and intensity of the litigation efforts, we find the numbers of hours

claimed by counsel in the instant petition for services rendered to

be reasonable. Specifically, complainant's counsel requests a total of

91.50 attorney hours and 42.50 paralegal hours for the period July 16,

2001 to January 19, 2003, for services which included: researching,

preparing and filing a petition for enforcement; appealing the FAD on

compensatory damages; preparing an opposition brief to the agency's

request for reconsideration; drafting a petition for attorney's fees

and costs; and conducting other functions as set forth in the fee

petition. Given the extent and duration of the litigation, it is not

unusual that some of the pleadings contain overlapping facts or argument.