0120093849
08-28-2013
Terry Mason, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Terry Mason,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093849
Agency No. 2004-0517-2007103252
Hearing No. 530-2008-00286X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's September 11, 2009 final order regarding attorney's fees relating to his equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
Complainant, a Registered Nurse, Level Grade Two (2) at the Agency's Beckley VA Medical Center in Beckley, West Virginia, filed a formal EEO complaint on October 16, 2007. Therein, complainant alleged that the agency discriminated against him on the bases of sex (male) and in reprisal for prior EEO activity when:
1. from August 2006 through August 2007, the Nurse Executive, the Nurse Manager and the Chief Human Resource Management Service lost his proficiency report which resulted in him not receiving timely consideration for promotion to Nurse Grade III;
2. on May 25, 2007, the Nurse Executive decided to send Complainant's proficiency review off-site to the VA Central Office Professional Standards Office (Central Office) for that office to perform Complainant's annual review;1 and
3. on or about October 18, 2007, the Nursing Service management failed to promote Complainant to Nurse Grade III.
At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ).
Following a February 27, 2009 hearing, the AJ issued a bench decision dated March 27, 2009 finding that Complainant was not discriminated against on the bases of sex and in reprisal for prior EEO activity when, from August 2006 through August 2007, when his proficiency report was lost and was later discovered to have been inadvertently forwarded to the Human Resources Office instead of the Beckley Nurse Professional Standards Board (NPSB) (claim 1); and when management failed to promote him to Nurse Grade III (claim 3).
However, the AJ found that Complainant was discriminated against in reprisal for prior EEO activity when his proficiency review was forwarded off-site to the Central Office for that office to perform complainant's annual review rather than the local review board (claim 2). Specifically, the AJ found that it was clear from the Chairperson of the Beckley NPSB's memorandum, dated May 1, 2007, and the testimony of a retired Deputy Chief of Nurse Officer (CD) that the only reason that the proficiencies of Complainant and three other named nurses were sent to the Central Office, rather than having been reviewed by a local board, was because they had filed EEO complaints. The AJ further noted in her testimony, DC testified that the Central Office had never before directly boarded medical center people in lieu of a local board.
After a review of the testimony, the AJ ordered the Agency to provide EEO training for all responsible management officials regarding their obligations under Title VII, post a notice on all employee bulletin boards stated that it was found in violation of Title VII, and provide attorney's fees and costs. The AJ directed Complainant to submit a verified statement of attorney's fees and costs within twenty-one calendar days of the date of receipt of his decision. Furthermore, the AJ determined that since Complainant failed to present any evidence at hearing concerning a claim for compensatory damages, no such damages would be awarded.
The record reflects that on April l9, 2009, Complainant's attorney filed "Complainant's Motion for Attorney Fees" with the AJ. In the motion, Complainant's attorney requested $17,454.75 in fees, representing 49.50 hours of legal work billed at his current normal hourly rate of $350.00 per hour, as well as $542.29 for mileage and travel costs.
On April 14, 2009, the Agency filed a response to the motion for attorney's fees. Therein, the Agency did not contest the number of hours claimed or the costs submitted. Rather, the Agency challenged the hourly rate claimed by Complainant's attorney. The Agency argued that Complainant's attorney used hourly rates applicable to the attorneys practicing in Tidewater, Virginia, area where the practice is located, rather than the legal community of Beckley, West Virginia, where the case arose and where the hearing was held. The Agency asserted a determination as to which prevailing market rate should apply requires consideration of whether an employee could have readily found counsel in his or her local area with the requisite skills and experience required for the case. The Agency noted that Raleigh County (Beckley), West Virginia, is where the Agency facility is located, as well as where Complainant resides. It asserts that the 2008 Membership Directory for the West Virginia State Bar indicates that there are over 130 licensed attorneys in the practice of law in Raleigh County, West Virginia, and that there are over 1600 licensed attorneys practicing law in Kanawha County, West Virginia, approximately fifty miles from Raleigh County. The Agency asserted that Complainant could have readily found counsel in his local area with the requisite experience and skill for the instant matter.
On May 21, 2009, the AJ issued an Award of Attorney's Fees and Costs. The AJ first noted that the Agency did not contest the number of hours expended, but instead disputed the hourly rate charged by Complainant's attorney. Turning to what constitutes a reasonable hourly rate in this case, the AJ first determined that the Beckley, West Virginia, rather than Tidewater, Virginia, market rates were the appropriate guide to use in this case. However, the AJ found that neither Complainant nor the Agency presented probative evidence of the Beckley, West Virginia prevailing market rate for an attorney of Complainant's attorney's experience and expertise.
The AJ recognized that the Agency submitted a 2004 survey of the West Virginia State Bar to support its claim, which establishes that only 9.8% of the respondents charged over $200/hour. However, the AJ found that the survey had two deficiencies. First, the survey was five years old, and second, the survey did not account for the fact that Complainant's attorney had eighteen years of experience in the field of employment and labor law with an emphasis on Federal employees. The AJ further noted that Complainant's attorney has appeared many times before other EEOC administrative judges. The AJ determined that there was no showing in the survey referenced by the Agency as to what a comparable attorney in the Beckley, West Virginia, community charges as an hourly rate. Therefore, the AJ determined that Complainant's attorney was most comparably placed at the high end of the survey due to his experience and expertise, and determined the appropriate hourly rate was $240.2
In sum, the AJ awarded Complainant's attorney an hourly fee of $240.00 per hour for the requested 49.50 hours, for a total of $11,880.00. The AJ additionally awarded the attorney $542.29 for mileage and travel costs.
The Agency issued a final order dated September 11, 2009, implementing the AJ's March 27, 2009 decision and Award of Attorney's Fees and Costs. The instant appeal followed.
ANALYSIS AND FINDINGS
Title VII authorizes the award of reasonable attorney's fees, including for an attorney's processing of a compensatory damages claim. 29 C.F.R. � 1614.501(e). To establish entitlement to attorney's fees, complainant must first show that he or she is a prevailing party. Buckhannon Bd. and Care Home Inc. v. West Virginia Dept. of Health and Human Resources, 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. 427, 433 (1983)).
The fee award is ordinarily determined by multiplying a reasonable number or 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). The reasonable hourly fee is the prevailing market rate in the relevant community. Blum v. Stenson, 465 U.S. 886 (1984).
The only issue in dispute in this case is the proper hourly rate to be used in calculating attorney's fees. The AJ determined that Complainant's attorney should be awarded the prevailing rate for attorneys in the Beckley, West Virginia, area where the action arose and Complainant resides. Complainant's attorney argues that he is entitled to his usual and customary hourly rate in the Tidewater, Virginia, area, where his practice is located.
If a party does not find counsel readily available in that locality with the degree of skill that may reasonably be required, it is reasonable that the party go elsewhere to find an attorney. Southerland v. United States Postal Service, EEOC Appeal No. 01A05403 (October 16, 2002) (citation omitted). On the other hand, if a high-priced, out-of-town attorney renders services which local attorneys could do as well, and there is no other reason to have them performed by the former, then it may be appropriate to allow only the hourly rate which local attorneys charge for the same service. Id. The burden is on the Agency to show that Complainant's decision to retain out-of-town counsel was unreasonable. Id.; Jimenez v. Department of Health and Human Services, EEOC Appeal No. 0120083765 (June 12, 2012).
In this case, we find that the Agency has not presented sufficient evidence to meet its burden of proving that Complainant's decision to use out-of-state counsel was unreasonable. In this regard, the Agency failed to provide any evidence that local counsel was available with comparable experience in this area of law or with similar practice experience appearing before the EEOC as Complainant's counsel. The AJ specifically noted that Complainant's attorney had eighteen years of experience in the field of employment and labor law with an emphasis on Federal employees, and had appeared many times before other EEOC administrative judges. The Agency has not established that there were attorneys available with similar experience in the Beckley, West Virginia, area. We also conclude that Complainant's attorney has submitted adequate evidence that $350/hour is the prevailing rate in his legal community for an attorney of his experience. Accordingly, we find that Complainant's attorney is entitled to an upward adjustment in his rate to $350 per hour.
For the reason stated herein, the Commission MODIFIES the Agency's September 11, 2009 final order, which adopted the AJ's March 27, 2009 bench decision and the May 21, 2009 Award of Attorney's Fees and Costs. The matter is REMANDED in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following remedial action:
Within sixty (60) calendar days of the date this decision becomes final, the Agency, to the extent it has not already done so, shall tender to Complainant's attorney $17,325 ($350 x 49.50 hours) in attorney's fees and $542.29 in costs.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington, DC 20013. 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 (M1208)
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 77960, Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 28, 2013
__________________
Date
1 The record reflects that in order for a Registered Nurse to receive a promotion from one grade to the next, the nurse's "proficiencies" must be found to meet the criteria for the next grade by a Nurse Professional Standards Board (NPSB). The Board must consist of at least three members and Board Members must be in the grade at least equal or above the grade of the nurse seeking promotion. The record reflects that NPSB are convened locally at the VA facility where the nurse is employed.
2 To set the rate at $240/hour, the AJ took the high end of the 2004 survey or $200, and adjusted it upwards by 20% to account for the passage of time due to the age of the survey.
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0120093849
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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