0120070767
03-25-2009
Ann Robins, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Ann Robins,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120070767
Agency No. 040603
DECISION
On November 21, 2006, complainant filed an appeal from the agency's
September 25, 2006 final decision pertaining to the award of attorney's
fees stemming from a settlement agreement entered into by both parties
on or around July 28, 2006. The settlement agreement concerned a formal
EEO complaint filed by complainant in which she alleged discrimination
on the basis of sex (female) when her position remained classified as
a Rangeland Management Specialist, GS-9, while she was performing the
work of a GS-11.
The settlement agreement states, in relevant part:
The Agency shall ... [p]ay the Complainant reasonable attorney['s]
fees, based on an actual accounting of fees incurred related to this
complaint and any associated fee petition in accordance with 29 CFR �
1614.501(e). If the Parties are unable to reach agreement on the amount
of fees to be paid, the Complainant may submit the claim to the EEOC
for determination of reasonable fees.
On or around August 25, 2006, complainant submitted an accounting of
attorney's fees totaling $31,258.50. The agency issued a final decision
on September 25, 2006, and awarded complainant $19,726.50 in attorney's
fees. On September 29, 2006, complainant's counsel contacted the
agency and informed it that they would agree to a reasonable diminution
of attorney's fees to settle the claim in the amount of $30,000.00.
Subsequently, in an attempt to avoid the cost of future litigation, the
agency offered attorney's fees in the amount of $25,000.00. Complainant's
counsel rejected this amount, and counter-offered $29,500.00. The agency
responded on October 23, 2006, that their offer of $25,000.00 would remain
firm until October 27, 2006. The parties failed to reach an agreement.
Complainant now appeals to the Commission to determine reasonable
attorney's fees. On appeal, complainant states that she is seeking
$30,000.00 in attorney's fees. Complainant also asserts that the agency's
offer of attorney's fees on September 25, 2006, was not a final decision,
but merely a beginning offer in conformance with the settlement agreement.
Conversely, the agency asserts that complainant's appeal is untimely,
as the final decision was issued on September 25, 2006, and complainant
did not file an appeal with the Commission until November 21, 2006.
The agency also asserts that if the Commission finds the appeal was
timely filed, the final decision should be upheld because complainant's
counsel's request for fees is unreasonable.
Final Agency Decision
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties. The
Commission has held that a settlement agreement constitutes a contract
between the employee and the agency, to which ordinary rules of contract
construction apply. See Herrington v. Department of Defense, EEOC Request
No. 05960032 (December 9, 1996). The Commission has further held that
it is the intent of the parties as expressed in the contract, not some
unexpressed intention that controls the contract's construction. Eggleston
v. Department of Veterans Affairs, EEOC Request No. 05900795 (August 23,
1990). In ascertaining the intent of the parties with regard to the
terms of a settlement agreement, the Commission has generally relied
on the plain meaning rule. See Hyon O v. United States Postal Service,
EEOC Request No. 05910787 (December 2, 1991). This rule states that if the
writing appears to be plain and unambiguous on its face, its meaning must
be determined from the four corners of the instrument without resort to
extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building
Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
On appeal, complainant's counsel asserts that it was never the intention
of the parties that the agency would decide the attorney's fees in a final
agency decision, and instead asserts that the parties' intent was that
there would be an agreement reached through offers and counter-offers.
Complainant's counsel points to the last sentence of the above paragraph
from the settlement agreement to support their argument. However, a fair
reading of the settlement agreement reveals that the parties agreed to be
bound by 29 CFR � 1614.501(e), which states that an agency shall issue a
decision determining the amount of attorney's fees or costs due within 60
days of receipt of the statement and affidavit. See 1614.501(e)(2)(ii)(A).
Further, the record establishes that the agency's subsequent offers
were merely an attempt to avoid future litigation, and the offer clearly
stated that the agency's earlier decision was not disturbed. Therefore,
the agency's document dated September 25, 2006, was a final decision by
the agency and was appropriately issued.
Timeliness of Appeal
Because we have determined that the agency's issuance of a final
agency decision was appropriate, we now turn to whether complainant
timely filed her appeal with the Commission. EEOC Regulation 29 CFR �
1614.501(e)(2)(ii)(A) provides that the agency's decision regarding the
award of attorney's fees shall include a notice of right to appeal to the
EEOC along with EEOC Form 573, Notice of Appeal/Petition. A review of
the agency's final decision, titled "Determination of Attorneys' Fees,"
reveals that at the end of the decision there is a sentence which states,
"This determination is subject to appeal to the EEOC in accordance with
29 CFR � 1614.501(e) and the settlement agreement by filing the attached
Form 573." EEOC Form 573 was attached to the document.
EEOC Regulation 29 C.F.R � 1614.402(a) provides that a complainant must
appeal a final agency decision within 30 days of receipt of the decision.
Here, complainant appealed to the Commission 181 days after she received
the final agency decision. However, upon review, we find that the
final agency decision did not advise complainant that she had 30 days
from the date she received the decision to timely file an appeal with
the Commission. In light of the agency's failure to properly advise
complainant of the time for filing appeals with the Commission pursuant to
29 C.F.R. � 1614.402, we accept complainant's appeal as timely. See Davis
v. Department of Air Force, EEOC Appeal No. 01A21734 (March 18, 2003).
Attorney's Fees
Attorney's fees are ordinarily computed by determining the lodestar,
i.e., the number of hours reasonably expended multiplied by a reasonable
hourly rate. 29 C.F.R. � 1614.501(e)(2)(ii)(B) (explaining that this is
the starting point for computing attorney's fees). There is a strong
presumption that this amount represents the reasonable fee, though
in limited circumstances, this amount may be reduced or increased in
consideration of the degree of success, quality of representation,
and long delay caused by the agency. Id.
On appeal, complainant's counsel asserts that five attorneys from their
firm spent a total of 131.3 hours on the complaint and an additional 4.2
hours preparing and filing this appeal. The agency determined that 3.7
hours included on complainant's counsels' itemized statement needed to
be reduced because they were charged to individuals who were not named
in the partner's affidavit. We find that this reduction is reasonable,
because there is no explanation of the positions of these individuals,
or their qualifications, experience, and hourly rate.
The agency also deducted 1.5 hours from the itemized statement for time
spent on the withdrawal from this case, time spent on the reappearance in
this case, and time spent on this case while the firm was withdrawn from
the case. Additionally, the agency deducted 0.1 hours for reviewing
correspondence to a congressman regarding the claims in this case.
We find that these deductions are not reasonable, as the record
establishes that these activities were related to the instant complaint.
The agency also deducted 23.7 hours for complainant's counsels'
pursuit of a desk audit with OPM after the complaint was settled.
In the settlement agreement, the agency agreed to pursue a desk audit
with OPM to determine if complainant was performing at a GS-11 level.
The agency found that these expenses were incurred after the complaint
was resolved and should not be recovered under the regulations. Further,
the agency found that complainant's counsels' involvement in seeking a
desk audit was not necessary, since the agreement clearly stated that
the agency would pursue the desk audit. We find that the attorneys'
time spent on pursuing a desk audit with another federal agency after
the signing of the settlement agreement was not directly related to the
underlying EEO complaint, and as a result, the agency is not responsible
for reimbursement of the associated attorneys' fees.
A number of factors determine what is a reasonable hourly rate for legal
services in connection with EEO complaints, including the experience
of the attorney, the difficulty of the case, the rate charged by other
attorneys in the geographic area for similar services (often referred to
as the "prevailing market rate"), and past hourly rates that have been
awarded. Cooley v. Department of Veterans Affairs, Request No. 05960748
(July 30, 1998), quoting Blum v. Stenson, 465 U.S. 886 (1984). It is
incumbent upon complainant's counsel to establish the reasonableness of
the requested hourly rate and to present evidence to that point.
Complainant's counsel asserts that the prevailing market rate should
be a national market rate, because the agency and the Commission have
offices nation-wide. For the purpose of determining the prevailing
market rate, the relevant community is the area where the agency facility
and complainant are located. See McTier v. Department of the Navy,
EEOC Appeal No. 07A30016 (March 2, 2004), citing Black v. Secretary
of Army, EEOC Appeal No. 01921158 (January 14, 1993). In the instant
complaint, complainant and the agency's facility are located in Utah.
Complainant's counsel failed to offer evidence that would establish
that their rates are similar to the rates of other attorneys in Utah
for similar services. The agency has offered evidence that establishes
that complainant's counsels' rates are unreasonable when compared to the
prevailing market rate for attorneys in Utah who offer the same services
with similar experience, and taking into consideration the level of
difficulty of the case. Therefore, we will use the rates provided by
the agency that establishes the prevailing market rate in Utah.
After a thorough review of the entire record, the Commission finds that
complainant is due the following in reasonable attorneys' fees:
Attorney A: 20 hours @ $240.00 per hour = $4,800.00
Attorney B: 22.3 hours @$175.00 per hour = $3,902.50
Attorney C: 6 hours @ $185.00 per hour = $1,110.00
Attorney D: 46.3 hours @ $185.00 per hour = $8,565.50
Attorney E: 14.1 hours@ $185.00 per hour = $2,608.50
Further, we find that Attorney C reasonably spent an additional 4.2
hours on this appeal.
Attorney C: 4.2 hours @ $185.00 per hour = $777.00
Total attorneys' fees: $21,763.50
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we MODIFY the agency's
final decision. The agency must comply with the order below.
ORDER
The agency is ordered, to the extent it has not already done so, to take
the following remedial action:
Within 30 days of the date this decision becomes final, the agency shall
tender to complainant payment in the amount of $21,763.50 in attorney's
fees.
The agency is further directed to submit 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 (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
March 25, 2009
Date
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0120070767
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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