01990920_r
04-17-2002
Walter Carroll, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Walter Carroll v. Department of Veterans Affairs
01990920
April 17, 2002
.
Walter Carroll,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01990920
Agency No. 98-0221
Hearing No. 120-98-9285X
DECISION
On November 10, 1998, complainant timely filed an appeal with the
Commission from an agency decision regarding his request for attorney's
fees. The Commission accepts the appeal in accordance with 29 C.F.R. �
1614.405.
Complainant filed a formal EEO complaint, dated October 10, 1997,
claiming that he was the victim of unlawful employment discrimination
on the basis of disability. The agency accepted the complaint for
investigation. Following an investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On July 30, 1998,
the agency filed a Motion for a Decision Without a Hearing, offering
complainant full relief. As requested in complainant's complaint, the
agency specified that it would produce a letter of apology and that it
had permanently moved complainant out of the supervision of Employee A.
In a letter dated August 5, 1998, complainant accepted the offer.
According to complainant, however, he was not officially reassigned
and remained under Employee A's supervision. Complainant's attorney
brought the matter to the agency's attention, and on September 4, 1998 the
agency issued a written clarification. Complainant was offered permanent
reassignment to a comparable payroll position that was not under Employee
A's supervision, at the same pay and grade, with a guarantee that the job
would not be eliminated until January 1, 2000. On September 14, 1998,
the AJ issued a Memorandum and Order setting forth the clarified order,
and provided complainant with ten days to accept or reject. Following
complainant's acceptance, the complaint was dismissed on October 6, 1998.
Thereafter, complainant requested attorney's fees. The agency issued
a decision, dated November 3, 1998, denying complainant's request.
Citing the AJ's Memorandum and Order, the agency stated that �since
the relief offer was made before complainant incurred attorney's fees,
attorney's fees need not be included in a full relief offer in this
case.� Further, the agency concluded that complainant was not entitled
to attorney's fees because there was no finding of discrimination.
The final agency decision also noted that complainant's attorney first
acknowledged that he had been retained by complainant on August 3, 1998,
and that two days later sent the agency a letter accepting the offer
which did not indicate a willingness to pay fees.
On appeal, complainant acknowledges that the parties had previously
stipulated that no fees were incurred at the time the offer was made.
Complainant argues, however, that following the offer, fees were incurred
in an effort to obtain full relief. Specifically, complainant provides
documentation referring to communications with the agency and the AJ
which resulted in the payroll position and guarantee that it would not
be abolished before January 1, 2000.
By federal regulation, an agency shall award attorney's fees and costs
for the successful processing of an EEO complaint in the administrative
process. See 29 C.F.R. � 1614.501(e). A prevailing party for purposes
of entitlement to attorney's fees is one who succeeds on any significant
issue in litigation which achieves some of the benefit the party sought
in bringing the suit. See Nadeau v. Helgemoe, 581 F.2d 275, 278-9
(1st Cir. 1978). The fee awarded is normally determined by multiplying
the number of hours reasonably expended by a reasonable hourly rate.
See Hensley v. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. � 1614.501(e).
The attorney requesting the fee award has the burden of proving, by
specific evidence, his entitlement to the requested award. See Copeland
v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980).
In the instant case, we find that complainant is a "prevailing party" that
is therefore entitled to attorney's fees. A complainant is considered
a prevailing party when he has achieved some of the benefits that he
sought in filing his EEO complaint. See Buckhannon Board and Care Home,
Inc. v. West Virginia Department of Health and Human Services, 2001
WL 567728 (U.S. May 29, 2001); Troie v. United States Postal Service,
EEOC Request No. 05930866 (Sept. 22, 1994); see also, Spreisterbach
v. United States Postal Service, EEOC Request No. 05990158 (Nov. 27,
2001) (considered prevailing party where Commission ordered agency to
change seniority date, which resulted in increased seniority). Here,
after the execution of the settlement agreement, complainant's attorney
informed the agency that complainant was not officially reassigned and
continued to be supervised by Employee A. Consequently, the agency issued
a clarification, providing complainant a permanent reassignment that
was not under Employee A's supervision, with a guarantee that the job
would not be eliminated until January 1, 2000. As a result of the work
done by complainant's attorney in clarifying the agreement, complainant
obtained an increase in benefits. Accordingly, the Commission finds
that complainant is a prevailing party entitled to attorney's fees.
Lastly, we note that the attorney's fees are limited to work done by
complainant's attorney in clarifying and seeking compliance with the
settlement agreement.
In complainant's request for fees, complainant's attorney claimed hourly
rates of $175.00 for the senior attorney and $125.00 for the associate.
They attest that these rates are reasonable and consistent with those
charged by counsel with similar qualifications and experience. A review
of the submitted charges reveals that 7.75 hours were spent in an effort
to obtain clarification and compliance with the settlement agreement
following its initial execution on July 30, 1998. We note that the
agency has presented no arguments regarding the reasonableness of fees
or the time spent. We find that the request for $993.75 was reasonable
and the full amount should be awarded to complainant's attorney.
Accordingly, the agency's 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 will pay complainant a total of $993.75 in attorney's fees.
The agency shall tender such fees no later than thirty (30) calendar
days after the date on which 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
April 17, 2002
__________________
Date