01973683
03-17-2000
Alicia Sinnott, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Alicia Sinnott v. Department of Defense
01973683
March 17, 2000
Alicia Sinnott, )
Complainant, )
) Appeal No. 01973683
v. ) Agency No. E02069206
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Army & Air Force Exchange )
Service), )
Agency. )
)
DECISION
Complainant, by and through her attorney, timely initiated an appeal to
the Equal Employment Opportunity Commission (EEOC or Commission) from a
final agency decision (FAD), concerning an award of attorneys' fees.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether the agency properly reduced complainant's
request for attorney's fees from $21,287.50 to $11,475.00.
BACKGROUND
Complainant filed a formal EEO complaint alleging discrimination on the
bases of sex (female) and retaliation when she was sexually harassed by
her supervisor and constructively discharged. An EEOC Administrative
Judge (AJ) recommended a finding of discrimination. The agency's
FAD adopted the AJ's finding and awarded attorney's fees, backpay, and
compensatory damages in the amount of $20,000. The complainant appealed
the decision. The Commission affirmed the FAD.
Thereafter, in effort to determine the appropriate amount of attorney's
fees, the agency requested that complainant's attorney provide a
verified statement of fees. Complainant's attorney notified the agency
that she was representing the complainant on a contingent fee basis. A
copy of the agreement was requested by the agency. Some weeks later,
the agency again requested from complainant's attorney a detailed time
and accounting record, which was subsequently provided. The attorney
stated that complainant was entitled to attorney's fees in the amount
of $21,287.50, representing 167.50 hours at a rate $125.00 per hour plus
$350.00 for attorney expenses. In its decision on the complainant's fee
claim, the agency did not dispute the reasonableness of the claimed hourly
rate but found that the claimed number of hours expended was excessive.
Specifically, the FAD found that the attorney had requested 21.25 hours
for work done prior to becoming complainant's representative, listed
numerous vague and unsubstantiated charges, and billed excessively for
trial preparation. The agency also held that since complainant had lost
her appeal she was not entitled to attorney's accumulated in the pursuit
of that action.
The FAD held that the complainant's attorney had reasonably expended 87.50
hours, at the rate of $125.00, while representing complainant, traveled
a total of three hours, at the rate of $62.50, and had other expenses
of $350.00 for a total of $11,475.00. The agency issued complainant a
check for this undisputed amount.
On appeal, complainant's attorney contends that the agency should
recognize the contingency agreement, which grants the attorney 33 1/3
percent of complainant's award. In alternative, the complainant's
attorney also asserts that the FAD's reduction of attorney's fees was
excessive.
ANALYSIS AND FINDINGS
By regulation, a federal agency must award attorney's fees, in accordance
with existing law, for the successful processing of an EEO complaint. See
64 Fed. Reg. 37,644, 37,659-660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)). 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 Request No. 01966861 (July 17, 1998). In determining the number
of hours expended, the Commission recognizes that the attorney "is not
required to record in great detail the manner in which each minute of
his time was expended." See Bernard, supra. However, the attorney
does have the burden of identifying the subject matters in which he
spent his time, which can be documented by submitting sufficiently
detailed contemporaneous time records to ensure that the time spent was
accurately recorded. See Bernard, supra.
Further, a reasonable fee award may be assessed in light of factors such
as: (1) the time required (versus time expended) to complete the legal
work; (2) novelty or difficulty of the issues; (3) the requisite skill
to properly handle the case; (4) the degree to which counsel is precluded
from taking other cases; (5) the relief sought and results obtained; and,
(6) the nature and length of the attorney-client relationship. See Cerny
v. Department of the Army, EEOC Request No. 05930899 (October 19, 1994).
An applicant for attorney's fees is only entitled to an award for
time reasonably expended. It does not always follow that the amount
of time actually expended is the amount of time reasonably expended.
Elvin v. Department of Labor, EEOC Request No. 01943425 (August 31, 1995).
Rather, "billing judgement" is an important component in fee setting,
and hours that would not be properly billed to a private client are also
not properly billed to the agency pursuant to a successful EEO claim.
Id. Counsel for the prevailing party should make a "good faith effort
to exclude from a fee request hours that are excessive, redundant or
otherwise unnecessary." See Bernard, supra.
CONTINGENCY FEE AGREEMENT
In the instant case, complainant's attorney contends that the agency
failed to recognize the contingency agreement, which grants the attorney
33 1/3 of complainant's award. Using the contingency fee percentage,
attorney calculates attorney's fees of $21,304.92.
We find that contingency fee agreements are not envisioned by our
regulations. The regulations clearly state that the attorney fee will be
determined by the hours reasonably expended multiplied by a reasonable
hourly rate. 29 C.F.R. � 1614.501(e)(2)(ii)(B). While adjustments
may be made to this standard formula in exceptional cases, there is no
provision for adopting a totally different fee formulation.
The fact that counsel has entered into a contingent fee contract with his
client is irrelevant for the purposes of determining what the reasonable
attorney fees should be under the relevant regulatory scheme. Nowhere does
the applicable case law speak of the reasonableness of the fees in terms
of a percentage of the underlying award. Rather, the reasonable fee is
comprised of two elements hourly rate and hours expended. Consequently,
counsel's contingent fee agreement with complainant is a matter solely
between complainant and counsel. The agency, not being a party to the
agreement, is under no obligation to honor its terms. See Toliver
v. Department of Health and Human Services, EEOC Appeal No. 01890107
(March 22, 1989).
LODESTAR CALCULATIONS
Complainant's attorney presented an alternate argument that even utilizing
the lodestar method, the agency's reductions to the hours listed in
attorney's statement of fees were excessive. In analyzing this issue,
we find that the agency made the following disputed adjustments:
(1) reduced 18.25 hours for initial consultation to two hours, based on
its interpretation that Commission precedent stating that an attorney
is limited to two hours to decide whether to accept a case;
(2) reduced three hours of travel time prior to accepting the case to
one and one- half hours;
(3) reduced 10.5 hours for witness conferences to seven hours based on
the fact that only three witnesses testified at the hearing;
(4) reduced 14 hours for attorney preparation for the hearing to
seven hours based on the one-day hearing with only three witness for
complainant;
(5) reduced the hourly rate by 50 percent for hours billed during
travel; and
(6) refused to pay attorney fees associated with complainant's filing
of her appeal on March 9, 1995.
Under 29 C.F.R. � 1614.501(e)(1)(iv), an attorney is entitled to
attorney's fees for services performed after the filing of a written
complaint and after the complainant has notified the agency that he or
she is represented by an attorney, except that fees are allowable for a
reasonable period of time prior to the notification of representation
for any services performed in reaching a determination to represent
the complainant. The Commission has previously found that an attorney
may reasonably expend up to two hours to make a determination regarding
representation. See Vincent v. Department of the Army, EEOC Request
No. 05941012 (February 27, 1996). In the instant case, the attorney
requests 18.25 hours for fees accumulated prior to the complainant's
notification of representation to the agency. While the attorney states
that she used this time to become acquainted with complainant and the
various documents associated with the case, the Commission's law and
regulations, as cited above, limit an award of attorney's fees for
services provided prior to notification to the agency. Accordingly,
we agree with the FAD that only two hours of pre-notification services
are compensable.<2>
As to the FAD's reductions relating to the attorney's hearing preparation,
we find that the attorney's claimed number hours neither unreasonable
nor excessive. Given the success achieved by the attorney in a one-day
hearing, we find it reasonable to believe that her hours of pre-hearing
preparation contributed to the result achieved. As a result, we find
that the FAD improperly reduced the hours for both the attorney's witness
and hearing preparation and that the agency shall pay the attorney for
the 10.5 hours reduced by the FAD.
With respect to the agency reducing the hourly rate during travel,
the Commission has long held that the rate for an attorney's travel
time should be reduced by 50 percent from the regular rate charge.
Hooper v. Defense Logistics Agency, EEOC Appeal No. 01873384 (May 3,
1988). As a result, we find that the agency's 50 percent reduction of
the attorney's hourly rate for travel was appropriate in this case.
Finally, regarding attorney's fees accumulated in association with
the March 9, 1995 appeal, the question of entitlement turns on
whether complainant is a "prevailing party." Davis v. Department
of Transportation, EEOC Request No. 05970101 (February 4, 1999).
A prevailing party for purposes of obtaining attorney's fees is one
who succeeds on any significant issue, and achieves some of the benefit
sought in bringing the action. Id. (citing Hensely v. Eckerhart, 461
U.S. 427, 433 (1983)). Here, complainant's March 9, 1995 appeal disputed
the agency's compensatory damages award. The Commission affirmed the
agency's determination and no additional relief was obtained through
the appeal. As a result, we find complainant is not a "prevailing
party" for purposes of attorney's fees in conjunction to the March 9,
1995 appeal from the agency's decision dated February 7, 1995. However,
in light of our findings above, we find that complainant is a "prevailing
party" for purposes of this current appeal and award attorney's fees in
conjunction with this appeal.
CONCLUSION
Based on a review of the record and for the foregoing reasons, it is
the decision of the Commission to MODIFY the agency's final decision
and to award complainant attorney's fees as discussed in this opinion
and as further set forth in the ORDER below. This matter is REMANDED to
the agency for further processing in accordance with this decision and
the applicable regulations.
ORDER
The agency is ordered to take the following remedial actions:
(1) Pay to complainant, attorney's fees in the amount of $1,312.50
(10.5 hours at $125.00 per hour). The agency shall tender this payment
to the attorney within 30 calendar days after this decision becomes final.
(2) Pay to complainant, reasonable attorney's fees and costs incurred
in pursuit of this appeal (EEOC Appeal No. 01973683). The attorney shall
provide the agency with all necessary documentation of services rendered
and costs as incurred in pursuit of this appeal within 30 calendar days
of the date this decision becomes final. The agency may tender this
payment separately, or together with the payment specified in paragraph
(1) of this order. If this payment is tendered separately, the agency
shall tender it to complainant no later than 60 calendar days after this
date this decision becomes final.
(3) 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 evidence that the corrective action
has been taken.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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:
March 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 In light of this finding, we will not disturb the agency's award of
one and one-half hours of travel time for attorney-client conference
prior to notification of representation.