0120101320
06-12-2012
Belinda Dahlman, Complainant, v. Thomas Hill Moore, Chair, Consumer Product Safety Commission, Agency.
Belinda Dahlman,
Complainant,
v.
Thomas Hill Moore,
Chair,
Consumer Product Safety Commission,
Agency.
Appeal No. 0120101320
Agency No. CPSCEEO07003
DECISION
On January 7, 2010, Complainant filed an appeal from the Agency's December 7, 2009, final decision concerning the award of attorney fees and costs. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision.
ISSUE PRESENTED
The issue presented in this case is whether the Complainant's request of attorney's fees in the amount of $5,066.26 is supported by the record.
BACKGROUND
The parties entered into a settlement agreement on April 30, 2008. The Agency agreed to pay reasonable attorney fees and costs as determined by the EEOC Administrative Judge (AJ). On June 4, 2008, Complainant submitted a fee petition requesting $80,130.50 in attorney's fees and $1,266.53 for costs, totaling $81,397.03.
On July 14, 2008, the Agency responded to the Complainant's fee petition arguing that Complainant should only be awarded $9,537.00 in attorney's fees and costs because the Equal Pay Act did not authorize payment for these fees pursuant to an administrative complaint. The AJ allowed Complainant to respond to the Agency's contentions.
The AJ issued an Order Entering Judgment on September 9, 2008, wherein the AJ found that the Agency had agreed to pay attorney's fees for all maters at issue in this case, including the Equal Pay Act claims. The AJ also found that the precedent that the Agency relied upon did not apply in this case. The AJ did, however, strike attorney's fees in the amount of $7,007.00 for time spent by Complainant's co-representative.
On October 16, 2008, the Agency issued a final decision rejecting the AJ's Order. The Agency filed its appeal with the Commission on this matter. On November 10, 2008, the Complainant also raised an allegation of breach because the settlement agreement required the Agency to pay attorney's fees and costs within 60 days of the AJ's decision on fees. On this same day, the Agency remitted $9,310.39 for attorney's fees. On November 19, 2008, the Agency issued a letter of determination on Complainant's November 10, 2008, allegation of breach, wherein the Agency indicated that the $9,310.39 was complete satisfaction of its obligations under the agreement. On December 4, 2008, the Complainant submitted a brief in opposition to the Agency's appeal.
On March 18, 2009, the Commission issued a decision on the consolidated appeals in favor of Complainant. Dahlman v. Consumer Product Safety Commission, EEOC Appeal No. 0720090004 (March 18, 2009). The Commission ordered the Agency to pay $62,369.50 in attorney's fees to Complainant and $773.39 in costs. Following the decision, Complainant filed a request for reconsideration because the Commission's initial decision did not include an indication that she was entitled to an award of attorney's fees and costs for the appeal. The Commission denied the request but issued a revised order to the Agency indicating that as the prevailing party, Complainant was entitled to reasonable attorney's fees for the appeal.
In the instant case, on November 2, 2009, Complainant submitted a petition for attorney's fees and costs in the amount of $5,066.26 for the work done on the appeal. Specifically, the attorney's fees were for work performed in conferring with the Agency's representative and the AJ regarding the request for attorney's fees, drafting allegations of breach and an appeal to the EEOC for the Agency's failure to pay attorney's fees, responding to the Agency's appeal to the EEOC on an award of attorney's fees, and requesting clarification of the EEOC's decision on the allegation of breach and the Agency's appeal for which Complainant prevailed. The costs were for photocopying expenses, faxing and mailing costs, and the subscription costs for utilizing a legal research database.
On December 7, 2009, the Agency issued a Final Agency Decision stating that only $1,266.00 in attorney's fees and cost was appropriate as many of the expenses listed were not related to the issue of attorney's fees, or were not supported by the record.
CONTENTIONS ON APPEAL
On appeal, the Agency maintains that the amount of fees requested is excessive. The Agency argues that Complainant seeks reimbursement in the amount of $1643.00, for 7.1 hours of paralegal time on November 26, and December 1, 2008, and 8 hours of attorney time on December 3 and 4, 2008, researching issues regarding the Equal Pay Act that were presented prior to the appeal. Additionally, the Agency maintains that the Complainant seeks to recover twice for research conducted regarding legal issues that Complainant did not address in her memorandum. Further, the Agency maintains that no discount was taken for Complainant prosecuting her own appeal, on which she did not prevail. The Agency also maintains that Complainant is attempting to collect on issues twice by including issues connected to the earlier appeal. These expenses include the drafting of the breach letter (November 9, 2008, entry for $67.50) and serving a notice of appeal (November 25, 2008 entry for $52.00).
The Agency also argues that the remainder of Complainant's request should by reduced by half to reflect that portion of the brief that was directed toward the unsuccessful argument that the Agency had breached the settlement agreement. The Agency asserts that one half of the fees remaining after discounting for duplicate research and direct costs of Complainant's appeal is $1,266.00. Additionally, the Agency contends that Complainant's request for fees in the amount of $486.00 for the preparation of the verified fee statement submitted to the Agency on November 2, 2009, is the same request previously submitted and includes fees that were previously disallowed. The Agency explains that the costs for attorneys who have not entered an appearance, and the endless review and discussion of the same documents are duplicative and unjustified.
Finally, with regard to costs, the Agency maintains that the petition for costs is not properly documented and includes costs that are not reimbursable. Specifically, Complainant submitted charges for postage and in-house copying that did not contain any reference to specific documents related to the instant case. Further, the Billing Specialist did not indicate the amount of costs incurred on specific dates, nor did she provide a copy of the electronic records or other billing records that would substantiate the costs. The Agency argues that these costs should be disallowed. Further, the Agency maintains that Complainant's request for cost of computerized legal research should be disallowed as it should be considered overhead.
Complainant asserts that its statement of fees is reasonable and should be approved.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
The Commission finds that the Agency's FAD regarding attorney's fees and costs should be MODIFIED. First, regarding the Agency's argument that the paralegal time (7.1 hours) and attorney time (8 hours) for research regarding the Equal Pay Act was excessive. We find that based on the scope, degree, and complexity of this case the hours expended were reasonable as Complainant's counsel had to address the Agency's appeal arguments, which included a claim that the doctrine of sovereign immunity prevented Complainant from recovering under the Equal Pay Act.
Next, we find that the Agency's FAD was correct in denying charges that had been previously included or withdrawn. These expenses include the $67.50 for the Breach Letter, $52.00 for the Notice of Appeal, and $486.00 for preparation of a verified fee statement which was identical to one that had been previously submitted. The Commission notes that with regard to the fee statement no evidence was presented regarding the hourly rate of the preparer of the document or information regarding the work involved in preparing the fee statement.
The Agency was also correct in excluding $49.36 for fees charged for postage, fax/photocopy (in-house) and LexisNexis on-line legal research. The amount for postage, fax/photocopy (in house) was correctly denied as there was no specificity with regard to these expenses. Additionally, the Commission has long held that computerized legal research is considered overhead and is something that should already be captured by the attorney's reasonable hourly rate. Notwithstanding, we find that the Agency's argument that Complainant's fees and costs should be cut by half fails because we find that the discussion and research of the Equal Pay Act and settlement breach were intertwined with the issue of attorney's fees and was therefore necessary.
Accordingly, we find that the record supports attorney's fees and costs in the amount of $4, 411.40.
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 FAD, reducing attorney's fees and costs to $4,411.40, as they are supported by the record.
ORDER
The Agency is ordered to pay Complainant within 30 (thirty) calendar days of the date of this decision, attorney's fees and costs in the amount of $4,411.40.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 (M0610)
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), at 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
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
__6/12/12________________
Date
2
0120101320
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101320