Appellant,v.Dan Glickman, Secretary, U.S. Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJan 13, 2000
01964214 (E.E.O.C. Jan. 13, 2000)

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.