01964214
01-13-2000
Appellant, v. Dan Glickman, Secretary, U.S. Department of Agriculture, Agency.
Doris Anderson v. Department of Agriculture
01964214
January 13, 2000
.
Doris Anderson,
Appellant,
v.
Dan Glickman,
Secretary,
U.S. Department of Agriculture,
Agency.
Appeal No. 01964214
Agency No. 941409
DECISION
INTRODUCTION
The attorney for appellant timely initiated an appeal to the Equal
Employment Opportunity Commission (Commission) from the final decision of
the agency concerning his claim for an attorney fees award involving an
equal employment opportunity (EEO) complaint, which alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted by the Commission
in accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented are whether the agency's award of attorney's fees at
an hourly rate of $140 instead of the requested $200 should be affirmed;
and whether appellant should be awarded the full amount of his request
for attorney's fees as a sanction for the agency's failure to issue an
attorney's fees decision within thirty calendar days of receipt of the
attorney's request.
BACKGROUND
On November 2, 1994, a Resolution Agreement (Agreement) was entered into
which settled appellant's formal EEO complaint. The Agreement provided for
the payment of reasonable attorney fees in accordance with 29 C.F.R. �
1614.501(e). Appellant's attorney (Attorney) submitted a request for
attorney's fees on the same day the Agreement was signed.
On November 21, 1994, the agency requested that the Attorney provide:
(1) a description of his training, including his experience in employment
discrimination cases; and (2) additional material, if any, to support his
request for 4.5 hours for the initial task described as: "Analysis of case
materials, records; prepar[ing] [the] working report for client/attorney
discussion Re: strategy for hearing."
On December 1, 1994, the Attorney submitted a copy of his resume which
included his experiences and training in employment discrimination
law. Attorney stated that he had been a practicing attorney in the
area of employment discrimination law since July 1994. Prior to this
experience, he reported that he was a Program Analyst/Legal Advisor
with the Federal Grain Inspection Service's (FGIS) Compliance Division
from 1987 until 1994, which included a detail with the Senate Committee
on Agriculture, Nutrition, and Forestry. The Attorney claimed that he
"[r]epresented individual employment discrimination cases during [his]
entire tenure with FGIS."
However, the agency claims that it was informed by the Employee Relations
Specialist (Employee Specialist) at the FGIS' Compliance Division that
except for the last months of the Attorney's employment with the FGIS,
his official title was Program Analyst until 1994. In addition, the
Employee Specialist revealed that not more than 10% of the Attorney's
duties involved legal analysis. Upon further inquiry, the agency found
on March 22, 1994, that his official title was changed to Assistant
to the Director/Legal Advisor, when he was officially placed in an
Agricultural Marketing Specialist (General) program. Moreover, the
agency's investigation revealed that during the timeframe stated above,
the Attorney did not have approval for outside employment, and that he
(the Employee Specialist) was unaware of any work the Attorney performed
as a representative on employment discrimination cases during his tenure
at the FGIS.
On December 20, 1994, the agency issued its FAD concerning the fee
amount. Therein, the agency stated that Attorney claimed that while
serving as a Confidential and Special Assistant to the Administrator of
FGIS from 1977 until 1987, he "[r]epresented employment discrimination
cases for persons in FGIS, AMS, APHIS, and Extension Service." The
agency argued that in Attorney's official capacity as a Confidential and
Special Assistant to the Administrator, representation of co-workers in
employment discrimination cases would have violated conflict of interest
regulations. In addition, the agency noted that the Employee Specialist
added that he was certain that the Deputy Administrator would not have
approved any such request for outside employment, and was not aware that
Attorney was representing anyone on an EEO case during his employment
with the FGIS. However, the agency offered the Attorney an opportunity
to submit evidence that he had FGIS approval to perform outside legal
representation, and the amount of time spent on such legal representation,
in order for it to reconsider the hourly rate.
In assessing the amount of experience Attorney had in employment
discrimination cases, the agency found that the Attorney began full-time
practice in July of 1994; thus, he had four months of experience. The
agency assumed that if the legal advice the Attorney provided at the
FGIS accounted for 10% of his time between 1987-1994, that this provided
him an additional 8.4 months (84 months x 10%) of experience. He also
worked for the Equal Employment Opportunity Commission between 1972-73,
which provided him another year of experience. Therefore, the agency
determined that Attorney's employment discrimination experience amounted
to a total of one year and four months, in addition to his two years of
general legal experience.
In determining the appropriate hourly rate, the agency utilized the
matrix based on Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (1986),
which sets forth the hourly fee at which attorneys should be paid. Using
this matrix, the agency determined that the appropriate rate for an
attorney with less that three years experience is $140 per hour.
The agency further stated that in a December 1, 1994 letter, Attorney
accepted the agency's offer of 2.5 hours instead of the 4.5 hours
originally requested for a November 1, 1994, unexplained task. Therefore,
the Attorney's total billable hours were reduced from 11 to 9 hours. As
a result, the agency determined that Attorney would be paid $1,260
(9 hours X $140 hour).
The Attorney responded to the agency's award of attorney fees and
rationale in a letter dated January 18, 1995. In this letter, Attorney
argued that he did not request approval for outside legal representation
because it was not required by the regulations governing his employment,
barring a conflict of interest. Therefore, he argued that he was able
to represent employment discrimination claims, as long as he was not
compensated for his work. He also provided the names of several employees
he represented during his tenure at FGIS. Finally, he argued that he
spent approximately 20%-25% of his time on legal matters, not 10 %
as purported by the agency.
The Attorney supplemented his previous request for attorney fees
with an assertion that he also performed pro bono work for community
organizations. The Attorney reported that these legal activities did not
require written authorization because he was not compensated, but should
nevertheless count towards his legal experience. He did not, however,
keep a record of the actual hours expended, although he estimated he
worked on these matters approximately 10% of his time. The Attorney
also clarified that the March 22, 1994 change of his working title to
Assistant to the Director/Legal Advisor was the result of an amendment
to a settlement agreement which retroactively promoted him.
Finally, although the attorney commended the agency on its objective
application of the Laffey matrix, he argued that it is too mechanical
and narrow in scope to employ as the sole tool in determining hourly
fee rates.
ANALYSIS AND FINDINGS
Reasonable Hourly Rate
The starting point for determining the amount of a reasonable attorney's
fee is the number of hours reasonably expended, multiplied by a reasonable
hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). Reasonable
hourly rates are measured by the prevailing market rates in the relevant
community. Blum v. Stenson, 465 U.S. 886, 892-95 (1984). The burden
is on the fee applicant to produce satisfactory evidence, in addition
to the attorney's own affidavit, that the requested rates are in line
with those prevailing in the community for similar services by attorneys
of reasonably comparable skill, experience, and reputation. Id. at 896
n. 11.
We find that the Attorney has failed to demonstrate that his requested
hourly rate of $200 was a reasonable hourly rate for an attorney of his
experience, skill, and reputation in the District of Columbia during the
relevant time periods. The only evidence in the record of the prevailing
market rates for attorneys in the District of Columbia is the Laffey
matrix which was submitted by the agency. We will not assume without
supporting documentation, that the prevailing market rates for attorneys
in the District of Columbia were any more than that substantiated by
the record.
We also find that the Attorney failed to submit sufficient information
to the agency on which an informed determination could be made regarding
which "Laffey matrix" rates were applicable to attorneys with experience,
skill, and reputation reasonably comparable to those of the Attorney prior
to July 1994. The record in the instant case indicates that in July 1994,
when he first rendered attorney services for appellant in this case, he
had not completed 4 months of private legal practice. Attorney argued
that he had represented several FGIS employees in employment matters,
including hearings before the MSPB. However, except for two employees
the FGIS allowed Attorney to represent, the record is devoid of any
evidence of the employees he mentioned in his January 18, 1995 letter
having named the Attorney as their official representative in employment
matters. In addition, Attorney submitted that his community legal work
should be calculated in the equation; however, once again, he failed to
submit documentation recording hours expended, or letters and/or records
indicating the types of cases he worked. We have considered all of the
record in light of appellant's contentions on appeal, and find no basis
for increasing the attorney's fee award.
Untimely Issuance of the FAD
EEOC Regulation 29 C.F.R. � 1614.501 requires that an agency issue a
final decision within thirty calendar days after receipt of an attorney's
verified statement and accompanying affidavit. Appellant contends on
appeal that the agency should be estopped from denying him the requested
amount of attorney's fees ($200 an hour) due to the agency's failure
to issue a timely FAD. In addition, Attorney argues that because of the
agency's delay in issuing a decision on his fee request, another pending
case in which Attorney is also due attorney fees is on hold until the
[PAGE 5] agency made a decision regarding the exact attorney fee amount
Attorney will be awarded. Attorney also requested interest in his appeal
as an additional sanction for the delay of a final decision.
However, the record shows that the agency complied within the time
limits. The record demonstrates the following:
(a) on November 2, 1994, an Agreement was reached between the parties
and Attorney submitted his claim for attorney fees;
(b) on November 21, 1994, the agency requested additional information
regarding the Attorney fee claim;
(c) on December 1, 1994, Attorney submitted his resume and affidavit in
support of his request;
(d) on December 20, 1994, the agency issued its decision regarding
Attorney's fee request, and stated that if Attorney was able to provide
the agency with evidence that he had approval from his agency to render
outside legal work, that the agency would reconsider its hourly rate
determination;
(e) on January 18, 1995, Attorney responded to the agency's final decision
with a letter contesting the hourly rate, but provided no persuasive
evidence in support of his request;
(f) on March 13, 1995, the agency responded to Attorney's January 18,
1995 letter.
The Commission has the authority to impose such a sanction on the agency
for the issuance of an untimely FAD on attorney's fees. cf.. Stuart
H. Fields v. Department of Commerce, EEOC Request No. 05900510 (June
20, 1990) (no sanctions imposed on an agency which issued a FAD sixty
days after receipt of an attorney's fee request, where the parties were
attempting to settle the issue of costs on thirtieth day.
We decline to impose the requested sanction under the circumstances of
this case, where: (1) record shows that the agency complied within the
time limits; (2) the record demonstrates that the agency requested
additional information; (3) Attorney failed to provide additional
information; and (4) the agency chose to research its records for
additional information on which to base a rate determination, rather
than deny an award of attorney's fees based on Attorney's failure to
provide adequate documentation to the agency.
CONCLUSION
Based upon a review of the evidence, the decision of the EEOC is to AFFIRM
the agency's final decision awarding Attorney $1,260 for attorney's fees.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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. 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 13, 2000
__________________
Date
1On 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.