Angela C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Aug 21, 2018

0120162554 (E.E.O.C. Aug. 21, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Angela C.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120162554

Hearing No. 443-2012-00018X

Agency No. 1J-536-0003-11

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the Agency’s decision concerning attorney’s fees for a violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791
et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Laborer, PS-06, at
the Agency’s Processing and Distribution Center in Madison, Wisconsin. On May 6, 2011,
Complainant filed a formal complaint alleging that the Agency discriminated against her and
subjected her to a hostile work environment on the bases of sex (female) and disability as
evidenced by multiple incidents including, inter alia, she was denied overtime; her supervisor
made derogatory comments about how he did not trust a woman to drive a snow plow and about
the “good ole boys club;” she was told she would need retraining due to her accident; she was
not permitted to drive a motorized vehicle; and she was told she would not be in the rotation for
the waxing project.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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In addition, Complainant alleged that she was subjected to discrimination on the basis of
disability, including failing to provide her with a reasonable accommodation, when she was
placed on administrative leave until she was cleared to return to work through the medical unit;
she did not receive a response to her request for a temporary change of tours to avoid her acting
supervisor; and she was given a directive to submit all leave slips through her acting supervisor
and, subsequently, her request for a temporary schedule change was denied.

Following an investigation, an EEOC Administrative Judge (AJ) held a hearing on February 27
and 28, 2013. On September 30, 2014, the AJ issued a decision finding that Complainant was
discriminated against based on her sex when from January 28, 2011 through February 10, 2011,
she was not permitted to drive a motorized vehicle. The AJ further found that Complainant was
discriminated against based on her disability when she was denied a request for a Temporary
Change of Schedule and when she was given a directive to submit her leave requests to her
immediate supervisor. The AJ found no discrimination as to the remaining claims. The AJ
ordered the Agency to restore Complainant’s leave used during the period of June 8 to 17, 2011
and pay Complainant $3,500.00 in non-pecuniary compensatory damages. On November 7,
2014, the Agency issued a final action fully implementing the AJ’s decision. 2

On March 2, 2015, the AJ issued a separate decision addressing Complainant’s entitlement to
attorneys’ fees. Complainant requested $82,260.00 in attorneys’ fees and $818.51 in costs. The
Agency claimed that Complainant’s attorneys’ fee petition included attorney time spent on
clerical tasks, that Complainant’s attorneys spent unnecessary time reviewing arguments and
drafting points of an already completed summary judgment brief, and that the fee request should
be reduced because Complainant was only partially successful on her claims. The AJ agreed that
a fee reduction was warranted. First, the AJ reduced the requested fees by $600.00 for non-
compensable review of the summary judgment response and drafting points. Next, the AJ
reduced the fees by $520.00 for non-compensable clerical services and $160.00 for overcharged
travel time. In addition, the AJ found that Complainant’s attorneys spent excessive time on their
summary judgment response and closing briefs. Further, the AJ noted that Complainant was not
successful on all of her claims, but the claims were so intertwined that most work on the
unsuccessful claims was necessary to litigate the successful claims. As a result, the AJ
concluded that a 15 percent reduction in requested attorneys’ fees was warranted. Accordingly,
the AJ awarded Complainant $68,833.00 in attorneys’ fees and the full requested $818.51 for
costs.

2 Complainant appealed the Agency’s final action upholding the AJ’s finding of no
discrimination as to her placement on administrative leave and the compensatory damages
award. In Desire M. v. U.S. Postal Serv., EEOC Appeal No. 0120150824 (Apr. 21, 2017), the
Commission affirmed the AJ’s finding that Complainant was not subjected to discrimination as
to her placement on administrative leave. However, the Commission modified the award of
compensatory damages and awarded Complainant $10,000.00 in non-pecuniary compensatory
damages.
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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in determining that a fee reduction was
warranted. Complainant argues that the time spent on unsuccessful claims was intertwined and
difficult to separate from the successful claims, therefore, no reduction was warranted.
Complainant claims that the AJ ignored that fees sought already had been reduced by 30 percent
by Complainant’s attorney. Complainant asserts that the responses to the summary judgment
motions and closing brief required a large investment of time from the attorneys and they were
complex in nature. Finally, Complainant contends that the AJ incorrectly noted that
Complainant’s attorney overcharged the time billed for travel time. Accordingly, Complainant
requests that the Commission award the full attorneys’ fees requested.

ANALYSIS AND FINDINGS

Title VII and the Commission’s regulations authorize the award of reasonable attorney’s fees and
costs to a prevailing complainant. 29 C.F.R. § 1614.501(e); see also EEO Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 11-1 (Aug. 5, 2015). Fee awards are
typically calculated by multiplying the number of hours reasonably expended times a reasonable
hourly rate, an amount also known as a lodestar. See 29 C.F.R. § 1614.501(e)(ii)(B); Blum v.
Stenson, 465 U.S. 886, 899 (1984); Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).

All hours reasonably spent in processing the complaint are compensable, but the number of
hours should not include excessive, redundant or otherwise unnecessary hours. Id. 11-15. A
reasonable hourly rate is based on prevailing market rates in the relevant community for
attorneys of similar experience in similar cases. Id. 11-6. An application for attorney’s fees
must include a verified statement of attorney’s fees accompanied by an affidavit executed by the
attorney of record itemizing the attorney’s charges for legal services. Id. 11-9.

While an attorney is not required to record in detail the way each minute of his or her time was
expended, the attorney does have the burden of identifying the subject matters on which he or
she spent his or her time by submitting sufficiently detailed and contemporaneous time records to
ensure that the time spent was accurately recorded. See Spencer v. Dep’t of the Treasury, EEOC
Appeal No. 07A10035 (May 6, 2003). The attorney requesting the fee award has the burden of
proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal
Serv., EEOC Request No. 05A20843 (Feb. 18, 2003).

Initially, the Commission notes that neither party challenged the award of the full requested
$818.51 in costs. The Commission will first address the specific deductions from the fee petition
made by the AJ. The Commission agrees with the AJ that two of the charges listed in the fee
petition associated with Complainant’s response to the Agency’s motion for summary judgment
are not compensable. The record reveals that Complainant filed the response on or about July
12, 2012; however, the fee petition contains two entries on July 24 and 27, 2012, charging for
time expended reviewing the already-submitted brief. Therefore, the AJ correctly disallowed
those fees.
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Next, the AJ determined that Complainant’s attorneys overcharged for travel by not reducing the
hourly rates by 50 percent. A review of the record discloses, however, that Complainant’s
attorneys properly reduced the rate for travel on February 27 and 28, 2013. Accordingly, the
Commission will include the deducted $160.00 in the attorneys’ fees award. Finally, the
Commission agrees with the AJ that the charges on June 23, 2011 and June 15, 2012, listed as
emails to the EEO investigator and settlement emails respectively, amount to non-compensable
clerical tasks.

Next, the Commission will address the AJ’s 15 percent across-the-board deduction. The AJ
reasoned that Complainant’s attorneys spent excessive time on the summary judgment response
and closing briefs. Complainant’s attorneys stated they expended 78.9 hours responding to the
Agency’s motion for summary judgment and 64.3 hours preparing the closing brief. The Agency
argued that an attorney with 30 years of experience in labor and employment litigation should
not have needed such extensive time to reply to a motion for summary judgment or to prepare a
closing argument. In response, Complainant’s attorneys contended that the briefs were complex
in nature and required a large time investment by the attorneys. Further, Complainant’s
attorneys argued that they were completed by two separate associate attorneys who were new
practitioners and that they had a lower billing rate with reduced time reflected in the fee petition.
The AJ further reasoned that an across-the-board reduction was warranted because Complainant
did not prevail on all of her claims. The AJ noted, however, that the claims were intertwined and
that work on the unsuccessful claims was necessary to litigate the successful claims.

After a careful review of the record, the Commission concurs with the AJ that a 15 percent
reduction in fees was warranted and reasonable based on the excessive time spent on the
summary judgment response and closing briefs. While the record indicates that associate
attorneys performed much of the work regarding these briefs, the core issues in this case were
not overly complex or novel. Accordingly, the Commission finds no basis to disturb the AJ’s 15
percent across-the-board reduction for excessive hours spent on the cited briefs. See Jacobsen
and Taft v. Dep't of the Navy, EEOC Appeal Nos. 0720100046, 0720100047 (Sep. 7, 2012)
(finding that the AJ’s 10% across-the-board reduction, instead of conducting a line-by-line
analysis, was not an abuse of discretion for duplicative excessive billing); Mohar v. U.S. Postal
Serv., EEOC Appeal No. 0720100019 (Aug. 29, 2011), req. for recon. denied, EEOC Request
No. 0520120027 (Mar. 29, 2012) (finding that a 15% across-the-board reduction of attorney’s
fees was warranted when complainant’s fee petition simply reflected too much time spent by too
many people).

CONCLUSION

Upon review of the record, the Commission MODIFIES the Agency’s final decision regarding
Complainant’s entitlement to attorney’s fees and REMANDS the matter to the Agency to take
action in accordance with the ORDER below.

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ORDER

Within 120 calendar days of the date this decision is issued, to the extent it has not already done
so, the Agency is ordered to pay Complainant $68,993.00 in attorney’s fees and $818.51 for
costs.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission’s Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The
report shall include supporting documentation verifying that the corrective action has been
implemented.

ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30)
calendar days of the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)

Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.

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).
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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 (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (R0610)

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.
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 21, 2018
Date