01a05712
01-30-2003
Stan Laber, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Stan Laber v. Department of the Army
01A05712
January 30, 2003
.
Stan Laber,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A05712
Agency No. BXJC9211C2610
Hearing No. 100-94-7118X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his formal complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. The sole issue on appeal is whether the
agency properly awarded only a portion of the amount of attorney's
fees requested. In the underlying complaint, complainant alleged that
he was discriminated against on the basis religion (Jewish) and reprisal
(prior EEO activity) when he was not selected for an Industrial Specialist
position in Israel. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, an Operations Research Analyst
in Illinois at the time the matter arose, filed a formal complaint in
which he alleged that he was discriminated against as referenced above.
After an investigation, an administrative hearing was held before an
EEOC Administrative Judge (AJ). At the conclusion of the hearing,
the AJ issued a decision in which a finding of discrimination was
recommended. In its final decision, the agency did not accept the AJ's
recommendation, and therefore issued a finding of no discrimination.
Complainant appealed the agency's finding to this Commission, which agreed
with the AJ's recommendation. Consequently, the agency, inter alia,
was ordered to pay complainant a reasonable amount of attorney's fees.
Complainant's attorney was ordered to submit to the agency a verified
statement of fees. This statement was provided to the agency on November
11, 1999. Specifically, the statement indicated that complainant was
owed an amount of $37,383.00 in attorney's fees and amount of $2,721.77
in costs for a total of $40,104.77.
The agency rejected those amounts, and instead awarded complainant
$14,040.00 in attorney's fees and $1,763.42 in costs for a total of
$15,803.42. Regarding attorney's fees, the agency's rejection of the
amount claimed by complainant was based on the fact that the relevant
hourly rates included billing statements for five attorneys who billed
at hourly rates of $305.00, $250.00, $160.00, and $115.00 (2), but did
not contain any description of the experience of the various attorneys or
any verification of the rates charged by similar attorneys in the local
community. Since more than 215 of the nearly 250 hours were billed at
the $115.00 rate, that is the rate the agency presumed was reasonable.
The agency also took issue with the number of hours complainant's
attorneys claimed to have spent on complainant's case. The statement
of fees indicates that five attorneys spent a total of 250.30 hours
on the case at issue. The agency noted that 26.50 of those hours were
billed before the agency was notified that complainant was represented
by legal counsel. The agency further noted that once those 26.50 hours
were disregarded, 223.80 hours remained. Finally, the agency noted that
of those 223.80 hours, complainant's attorneys claim to have spent 123
hours drafting and submitting an appeal brief. In so doing, the agency
pointed out that the issue involved in this case was narrowly tailored
to a non-selection, and was not novel or difficult. In response to the
number of hours complainant's attorneys claimed to have spent on legal
research, the agency pointed out that complainant did not attain the
services of an attorney until his appeal to the Commission, and therefore
his attorney's had copies of the AJ's decision, which contained the
relevant laws, policies, and regulations. Also, the agency noted that
many of the itemized fees contained vague and redundant charges like
�consulting with other attorneys,� �assigning work to law clerk and
paralegal,� and �writing a Congressional inquiry.� Rather than look
at each itemization, the agency, using Commission precedent set out in
Abbate v. Department of the Navy, EEOC Appeal No. 01971418 (March 24,
2000), declined to do a line-by-line analysis of complainant's request,
but instead chose to do an across the board reduction as provided for
in Finch v. United States Postal Service, EEOC Request No. 05880051
(July 15, 1988), which resulted in a fifty percent reduction of the
number of hours expended from 223.80 to 112.
The agency then turned its attention to the paralegal costs included
in the attorneys' statement of fees. Firstly, the agency noted that
the paralegal allegedly expended 31.80 hours on complainant's case at a
rate of $100.00 per hour. Secondly, the agency noted that 19.40 hours
were billed for abstracting the hearing transcript, which was deemed
to be unnecessary because the attorneys claimed to have spent 20 hours
reviewing the transcript after the abstract was completed. Finally,
the agency subtracted the hours spent on the abstract from 31.80,
and concluded that the total number of hours expended by the paralegal
was 12.40. Moreover, the agency concluded that the reasonable hourly
rate in the community for a paralegal was $75.00 per hour. The findings
resulted in an award of $930.00 for paralegal expenses. The reduction
in hours plus the reduction in reasonable rates for the attorneys and
the paralegal resulted in an award of $14,040.00 in attorney's fees.
Finally, the agency examined the amount of costs, i.e., $2,721.77,
requested by complainant's counsel. Of the amount of costs requested,
$1,916.71 was attributed to computerized legal research. The agency
noted that because the case at issue contained a narrowly tailored
issue, which was not novel or complex, the amount of legal research
was not justified. In making this determination, the agency added that
complainant's attorneys were armed with a favorable AJ decision and a
decision from the agency, both of which contained relevant case law.
Based on this argument, the agency reduced the amount of requested
costs by fifty percent, and awarded complainant $1,763.42 instead.
After combining this figure with the amount of attorney's fee awarded,
the agency concluded that complainant was only entitled to an award
of $15,803.42.
After a careful review of the record in its entirety, including statements
submitted on appeal, the Commission finds that the agency's decision
properly referenced the relevant facts and analyzed the appropriate
regulations, policies, and laws. Accordingly, it is our decision to
affirm the final agency decision.
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
January 30, 2003
__________________
Date