Lusterv.Sec'y, Dept. of Defense

Equal Employment Opportunity CommissionOct 14, 1999
01974044 (E.E.O.C. Oct. 14, 1999)

01974044

10-14-1999

Elizabeth Luster and Brenda Brooks, Appellants, v. William S. Cohen, Secretary, Department of Defense (Defense Commissary Agency)


Elizabeth Luster and Brenda Brooks

01974044

October 14, 1999

Elizabeth Luster and )

Brenda Brooks, )

Appellants, )

)

v. ) Appeal No. 01974044

) Agency No. CE-94-CEC43-06

William S. Cohen, )

Secretary, )

Department of Defense )

(Defense Commissary Agency), )

Agency. )

)

DECISION

On April 14, 1997, Elizabeth Luster (A1) and Brenda Brooks (A2)

(hereinafter referred to as appellants), through their attorney, filed a

timely appeal from the March 26, 1997, final decision of the Department

of Defense (Defense Commissary Agency) (hereinafter referred to as the

agency) concerning an award of attorney's fees. The appeal is timely

filed (see 29 C.F.R. �1614.402(a)) and is accepted in accordance with

EEOC Order No. 960, as amended. For the reasons that follow, the agency's

decision is MODIFIED.

ISSUE PRESENTED

The issue presented in this appeal is whether the agency properly

awarded appellants attorney's fees in the amount of $2,584.00 pursuant

to settlement agreements signed by A1 on September 3, 1996, and by A2

on September 4, 1996.

BACKGROUND

Both appellants entered into agreements with the agency in settlement

of their individual complaints of discrimination that provided for,

inter alia, the award of reasonable attorney's fees. On December 23,

1996, appellants' counsel submitted his claim for attorney's fees in the

amount of $6,000 for each appellant, or $12,000. In its final decision,

the agency awarded $2,584.00 as attorney's fees.

According to the documents submitted by appellant and the agency's final

decision, in early May 1994, counsel undertook the representation of six

agency employees ("group") and subsequently filed a class complaint.

An EEOC Administrative Judge (AJ) issued a decision finding that the

group was not appropriate for class certification, and the agency issued

a decision on March 20, 1996, agreeing with the AJ. It appears that at

least A1 and A2 filed individual formal complaints of discrimination,

although copies of their complaints were not part of the record before us.

After class certification was denied, appellants expressed interest

in settling their individual complaints. The agency entered into a

settlement agreement with each appellant, whereby A1 received $1,500.00

net as compensation and A2 was granted a part-time work schedule in

exchange for withdrawal of their complaints and all other claims.

Counsel's fee submission consisted of two identical bills of four pages,

with each appellant's name appearing on the first page of her bill.

For each appellant, counsel billed 40 hours of work at $150.00 per hour,

for a total of $6,000.00 per appellant. Each fee submission covers

activity from May 11, 1994, through October 25, 1996, and does not include

time for preparation of the fee submission or the instant appeal. Each

duplicate bill claimed twenty-seven hours ($4050) through March 20, 1996,

the date of the agency's decision denying certification of the class;

nine and one-tenths hours ($1365) through July 2, 1996, when appellants

agreed to the terms in settlement of their individual complaints; two

and sixth-tenths ($390) through execution of the settlement agreements;

and one and three-tenths ($195) thereafter.

In its decision, the agency found that, because counsel's activities

were on behalf of the group prior to the AJ's March 20, 1996, decision,

those charges must be divided by six. Next, the agency held that the

charges for the period after July 2, 1996, when the appellants agreed

orally to settle their individual complaints, through the execution of the

agreements, was unnecessary to the settlement and should not be borne by

the agency. Finally, because the AJ found that counsel did not show that

he was an adequate representative and had expertise in employment class

action litigation, the agency reduced his rate to $100.00 per hour.<1>

The agency then calculated the fee award as follows: (a) $100.00 per

hour times 40 hours, from May 11, 1994, to March 20, 1996, or $4,000.00;

(b) $4,000.00 divided by six group members, or $667.00 per group member;

(c) plus an additional amount of $625.00 for "individual services"

for each group member;<2> (d) for a total of $1,292.00 per appellant or

$2,584.00.<3>

On appeal, counsel submitted documents in support of his claim for an

hourly fee of $150.00. In support, counsel provided two court orders

awarding fees, one noting that the rate was at the high end; statements

from other attorneys submitted in another proceeding supporting rates

of $120.00 to $150.00 per hour as the common rate for the local area;

and agreements with public and private organizations to represent its

interests at an hourly rate of $150.00.<4>

ANALYSIS AND FINDINGS

Initially we note that each settlement agreement herein provided for

an award of reasonable attorney's fees in settlement of each individual

complaint, and we need not address the issue of appellants' prevailing

party status with regard to the resolutions of their individual

complaints. With regard to the class complaint, however, appellants

were unsuccessful, and counsel is not entitled to attorney's fees for

activity related thereto. For that reason, we address the portions of

the fee request that concern services rendered to appellants as individual

complainants.

The usual starting point for determining the amount of an award of

reasonable attorney's fees is the number of hours reasonably expended,

multiplied by a reasonable hourly rate, to equal an amount known as the

"lodestar." 29 C.F.R. �1614.501(e)(2)(ii)(B); see also Blum v. Stenson,

465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983);

Engle v. Department of Defense, EEOC Request No. 05931027 (June 23, 1994).

An attorney seeking an award of attorney's fees has the burden of showing,

by specific evidence, entitlement to the requested fees and costs,

and s/he must use reasonable billing judgment in formulating the claim.

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1983).<5>

Initially we find that counsel's duplicate billings represented

duplicate charges and that counsel is entitled to attorney's fees of

no more than one-half of the amount claimed. With regard to counsel's

claim for payment at the rate of $150.00 per hour, he fails to show that

this rate is comparable to what other attorneys in the community would

charge similar clients for the same type of matter. Because counsel

failed to provide his fee agreement with appellants, we do not know

his fee arrangement, whether the fee was fixed or contingent, and what

circumstances would raise or lower the fee. After consideration of

this matter, we find that counsel should be paid at an hourly rate of

$125.00 per hour. Without the fee agreement, we cannot determine the

hourly rate actually billed, and we are not persuaded that court awards

or fee agreements with large institutions demonstrated an hourly rate

of $150.00 per hour for individual complainants such as appellants.

Next, we consider the number of hours for which appellants may be

awarded attorney's fees. As stated above, because the class certification

was denied, work in furtherance of this effort cannot be included in

the award. Nevertheless, it is likely that counsel performed some

work on behalf of appellants as individual complainants prior to the

denial of class certification and is entitled to fees for this work.

The record appears to show that, through the date of the AJ's decision,

12.6 hours were not billed for activity affecting the class. Therefore,

based upon the record before us, for that period, we find that 12.6

hours of the 27 hours billed were expended on behalf of appellants with

regard to their individual complaints of discrimination. With regard to

the period after the AJ's decision, we find that it is not unreasonable

that counsel worked 13 hours for both appellants, or 6.5 hours per each

appellant, towards resolution of their individual complaints.

Finally, the Commission will allow an additional reasonable amount for

attorney's fees associated with this appeal. Black v. Department of the

Army, EEOC Request No. 05960390 (December 9, 1998). Although counsel

did not claim such fees, rather than provide for another claim to the

agency and in the interests of judicial economy, we will award counsel

fees expended in preparation of this appeal. Based on our review of

the appeal brief and associated documents, we find that counsel should

be awarded two hours for preparation of the appeal. We find therefore

that counsel is entitled to an award of attorney's fees in the amount

of $3,450.00, for 27.6 hours in representation of appellants.

CONCLUSION

Accordingly, the agency's decision is MODIFIED to award $3,450.00 as

attorney's fees. The agency is directed to comply with the Order, below.

ORDER

Within thirty (30) calendar days of the date this decision becomes final,

the agency is ORDERED to issue a check in the amount of $3,450.00 as

attorney's fees pursuant to the settlement agreements with appellants.

A copy of the agency's letter transmitting the check for attorney's fees

must be submitted to the Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Oct. 14, 1999

DATE Carlton Hadden, Acting Director

1According to the agency's final decision, the AJ stated:

The requirement for adequacy of representation is not met in the instant

case. The class agent identified [counsel] as representative for the

class. The representative is an attorney. However, there is no showing

that he either has the requisite knowledge or special experience with

regard to class action complaints to adequately represent the interest

of the class.

Agency final decision, p. 1. Counsel did not object or refute the AJ's

findings in the appeal.

2It is unclear exactly what activities are included in the additional

amount of $625.00.

3In the fact, the agency's calculations did not embody its award as stated

in its decision, i.e., appellants claimed only 27 hours (not 40 hours)

through denial of class certification and 3.9 hours rather than 3.8 hours

for the period after July 2, 1996. Following the formula in the agency's

decision, appellants' fee award would have been approximately $2,150.00.

4In his unattested statement submitted with his brief on appeal,

counsel acknowledged that for the "charges common to complainants,

I have attempted to fairly prorate fees." Affidavit of May 13, 1997,

page 2. We note that counsel did not include his billing agreements

with appellants or the other group members. Also, although counsel

states that he has experience in the area of employment law, he does

not assert expertise in class action litigation nor provide examples or

citation to cases that demonstrate this experience.

5An applicant for attorney's fees is only entitled to an award for

time reasonably expended; for example, it does not always follow that

the amount of time actually expended is the amount of time reasonably

expended. Copeland v. Marshall, 641 F.2d. at 891-92. Counsel must

exercise judgment in billing and ensure that hours that would not be

properly billed to a private client are also not billed to the agency.

Id. Counsel also must make a "good faith effort to exclude from the fee

request hours that are excessive, redundant or otherwise unnecessary."

Hensley, 461 U.S. at 434.