01a45584
07-22-2005
Shelly Henson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shelly Henson v. United States Postal Service
01A45584
July 22, 2005
.
Shelly Henson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45584
Agency No. 4J-630-0097-03
DECISION
Complainant, by and through counsel, timely initiated an appeal from a
final agency decision (FAD) dated June 21, 2004 regarding complainant's
entitlement to attorney's fees. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission REVERSES
the agency's final decision.
The record reveals that complainant and the agency entered into a
settlement agreement on June 18, 2003 which provided, in relevant
part, that �Management Official agrees to permit Counselee to resign
her position as mail processing clerk and to review Counselee's OPF
file.� In July 2003, complainant alleged that the agency breached the
settlement by issuing her a Form SF-50 indicating that she was terminated
from agency employment and preventing her from reviewing her OPF file.
The agency issued a final decision dated September 19, 2003, finding
that it was in compliance with the June 18, 2003 settlement agreement.
The Commission affirmed the agency's final decision with respect to
the resignation provision of the agreement but reversed with respect
to the provision concerning the review of complainant's OPF file.
Shelly Henson v. United States Postal Service, EEOC Appeal No. 01A40819
(May 14, 2004). The Commission ordered the agency to allow complainant
to view her OPF file.
On May 20, 2004, complainant's counsel requested that the agency pay
attorney's fees associated with the above referenced complaint. In a
decision dated June 21, 2004, that is the subject of the instant appeal,
the agency determined that complainant was not entitled to attorney's
fees. Specifically, the FAD found that the complainant was not entitled
to attorney's fees because the Commission's May 14, 2004 decision did not
include attorney's fees as part of the order and that attorney's fees are
unavailable unless a settlement agreement specifically provides for them.
On appeal, complainant's counsel contends that he is entitled to $3,237.50
in attorney's fees for representing the complainant on this matter.
The 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). To establish entitlement to attorney's fees, a complainant
must first show that she is a prevailing party. Buckhannon Bd. and Care
Inc. v. West Virginia Dep't of Health and Human Res., 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. Department of Transportation, EEOC Request No. 05970101 (February
4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
The Commission has held that a complainant who receives some benefit
due to a judgement in favor of her settlement agreement breach claim is
considered a prevailing party under Buckhannon. Frances L. Spriesterbach
v. United States Postal Service, EEOC Request No. 05990158 (November
23, 2001). Consequently, the Commission finds that complainant is a
prevailing party entitled to attorney's fees related to the adjudication
of her breach claim.
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. Department
of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998) (citing
Blum v. Stenson, 465 U.S. 886 (1984)). While counsel need not provide
great detail, the Commission has held that the attorney should attempt to
identify the subject matter involved, in accord with the obligations to
make a good faith effort to exclude hours that are excessive, redundant
or otherwise unnecessary. Bernard, EEOC Appeal No. 01966861.
In complainant's request for fees, complainant's attorney claimed an
hourly rate of $175.00, attesting that this rate is reasonable and
consistent with those charged by counsel with similar qualifications
and experience. A review of the submitted charges reveals that 18.5
hours<1> were spent in an effort to obtain compliance with the settlement
agreement. We note that the agency has presented no arguments regarding
the reasonableness of fees or the time spent. We find that the request
for $3,237.50 was reasonable, and the full amount should be awarded to
complainant's attorney.
Accordingly, the agency's final decision denying complainant's request for
attorney's fees is REVERSED. The agency is ordered to award attorney's
fees as set forth in the Order below.
ORDER
The agency is ordered to take the following remedial action:
The agency shall pay complainant attorney's fees in the amount of
$3,237.50. The agency shall tender payment within thirty (30) calendar
days after the date this decision becomes final.
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 (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
July 22, 2005
__________________
Date
1This time period includes time spent preparing the instant appeal.