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.