Carmen P. Rockwell, Appellant,v.Donna Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
05971058 (E.E.O.C. Oct. 28, 1999)

05971058

10-28-1999

Carmen P. Rockwell, Appellant, v. Donna Shalala, Secretary, Department of Health and Human Services, Agency.


Carmen P. Rockwell, )

Appellant, )

) Request No. 05971058

v. ) Appeal No. 01956593

) Agency No. OSH-196-92

Donna Shalala, ) No. OSH 358-92

Secretary, ) No. OSH 370-92

Department of Health ) No. OSH 628-92

and Human Services, ) No. OSH 908-93

Agency. ) Hearing Nos. 100-94-7764X through

) 100-94-7768X

DECISION ON REQUEST FOR RECONSIDERATION

On September 1, 1997, Carmen P. Rockwell (hereinafter referred to as the

appellant), through counsel, timely initiated a request to the Equal

Employment Opportunity Commission (the Commission) to reconsider the

decision in Carmen P. Rockwell v. Donna Shalala, Secretary, Department

of Health and Human Services, EEOC Appeal No. 01956593 (August 11, 1997).

EEOC regulations provide that the Commissioners may, in their discretion,

reconsider any previous decision. 29 C.F.R. �1614.407(a). A party

requesting reconsideration must submit written argument or evidence

which tends to establish one or more of the following criteria: new

and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy, 29

C.F.R. �1614.407(c)(2); the decision is of such exceptional nature as to

have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).

For the reasons set forth below, appellant's request is granted, and

the previous decision is affirmed, as modified.

The issue presented is whether the previous decision determined the

proper amount of attorney's fees and costs.

Based on events from late 1991 through mid-1993, appellant filed five

complaints alleging discrimination based on national origin (Hispanic),

sex and reprisal for prior EEO activity with regard to performance

plans, performance evaluations, funding for travel and training, a

14-day suspension for time and leave infractions, disciplinary actions,

and unresponsiveness by her managers. Following an investigation,

appellant requested a hearing, and all complaints were consolidated.

The Administrative Judge (AJ) found no discrimination with regard to all

claims, but recommended payment by the agency of appellant's attorney's

fees and costs for discovery expenditures as sanctions for the agency's

"contumacious conduct."<1> RD, p. 16. The AJ's decision became the

agency's final decision upon its failure to issue a FAD, and appellant

filed an appeal.<2>

The previous decision adopted the AJ's findings of no discrimination and

directed the agency to pay appellant $10,047.50 for her attorney's fees

and costs. The previous decision based its award on counsel's submissions

of fees and costs in March 1995 before the AJ. Appellant has filed a

request to reconsider, contending that the previous decision miscalculated

the amount of the claim for attorney's fees and costs. Counsel has

submitted a new fee petition that she asserts was transmitted to the

agency on September 7, 1995. In its comments, the agency denies receipt

of the September 1995 fee petition and requests that the Commission

affirm the previous decision's award.

The usual starting point for determining the amount of an award of

reasonable attorney's fees is the number of hours reasonably expended,

multiplied by a reasonable hourly rate, to equal an amount known as the

"lodestar." 29 C.F.R. �1614.501(e)(2)(ii)(B); see also Blum v. Stenson,

465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983);

Engle v. Department of Defense, EEOC Request No. 05931027 (June 23, 1994).

An attorney seeking an award of attorney's fees has the burden of showing,

by specific evidence, entitlement to the requested fees, and costs,

and s/he must use reasonable billing judgment in formulating the claim.

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1983).

Fees

Before us are two requests for fees, one submitted in March 1995 for

$9,367.50 (March submission), and the other submitted in September 1995 in

the amount of $18,460.50 (September submission). There are significant

differences in these two submissions in terms of the services rendered

and the hourly rate claimed. The March submission shows expenditure

of 38.55 hours at $250 per hour, for a total of $9,367.50, for the

period January 10 through March 10, 1995. In the September submission,

counsel claimed 59.55 hours at $310 per hour, or $18,460.50, for the

period from October 16 1994, through March 15, 1995. We note that the

second submission includes 6.4 additional hours prior to the beginning

date of the first submission, from October 16, 1994, through January 9,

1995, and 0.5 hours for the period after March 10, 1995. Further, an

additional 14.1 hours enlarged the second submission for the period from

January 10 through March 10, 1995, through increases in time expended

and new services billed for the first time.

In the instant request, counsel attempts to disavow the March fee

submission, stating that the previous decision apparently relied on

"interim fee claims." The record, however, does not show that counsel

intended the March submission to be preliminary with regard to her hourly

rate; in fact, counsel had consistently stated her hourly rate at $250 per

hour in other motions filed with the AJ. For this reason, we are troubled

by counsel's lack of explanation for the increased rate claimed in the

September submission, a mere six months after the initial submissions.<3>

Because counsel failed to explain or justify the increased hourly rate,

we cannot approve the new, higher rate. We find therefore that appellant

is entitled to an award of attorney's fees at the rate of $250 per hour.

Turning to the amount of hours expended, we note that this case

involved five complex complaints of discrimination heard within

an administrative process characterized by the AJ as causing "much

difficulty to Complainant and her counsel." RD, p. 16. The record

shows that this case was transmitted for hearing in June 1994, and the

AJ's Acknowledgement Order was issued on August 23, 1994. Consequently,

we find that it was not unreasonable for appellant to initiate discovery

activity in October 1994, and we accept counsel's claim for discovery

activity beginning October 16, 1994.<4> Of concern to the Commission,

however, is the addition of 14.1 hours to the time already stated in the

March submission for the period from January 10 through March 10, 1995.

A comparison of the March and September submissions shows that some of

this time represents new activity not previously included as well as

the enlargement of extant services rendered. Again, counsel has not

offered an explanation or justification for the differences between

the two submissions. Without a basis for these changes, we rely, as

did the previous decision, on counsel's initial submission in March.

We find therefore that appellant is entitled to an award of attorney's

fees for 45.45 hours at $250 per hour, or $11,362.50.

Costs

In the March submission, counsel sought reimbursement of costs, but

noted that these amounts were preliminary, in that, some bills had not

been received. On March 15, 1995, counsel amended her claim to show

$819 in costs, covering recent depositions and transcripts. In her

September submission, counsel added $993.44 in costs for such non-personal

expenditures as photocopy costs, online charges, courier service fees,

and telephone charges. These charges were not part of the initial

submission and likely not available to counsel until several months

after the close of the record before the AJ. After a review of these

charges and for the reasons stated above concerning the nature of this

matter, we do not find these two requests for these charges unreasonable.

We find therefore that appellant is entitled to an award of costs in

the amount of $819 plus $993.44, or $1,812.44.

CONCLUSION

After a review of the appellant's request for reconsideration, the

agency's reply thereto, the previous decision, and the entire record,

the Commission grants appellant's request and finds that the appellant

is entitled to an award of $13,174.94 in attorney's fees and costs.

The decision in EEOC Appeal No. 01956593 (August 11, 1997) is MODIFIED

as stated herein. There is no further right of administrative appeal

on a decision of the Commission on a Request for Reconsideration.

The agency is directed to comply with the Order, below.

ORDER

Within thirty (30) calendar days of the date this decision, the agency

is ORDERED to issue a check in the amount of $13,174.94 as attorney's

fees and costs. A copy of the agency's letter transmitting the check

for attorney's fees must be submitted to the Compliance Officer, as

referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 19848, Washington,

D.C. 20036. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the appellant. If

the agency does not comply with the Commission's order, the appellant may

petition the Commission for enforcement of the order. 29 C.F.R. �1614.503

(a). The appellant 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. ��1614.408,

1614.409, and 1614.503 (g). Alternatively, the appellant 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. ��1614.408 and 1614.409. 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 (Supp. V 1993). If the appellant files a civil action,

the administrative processing of the complaint, including any petition

for enforcement, will be terminated. See 29 C.F.R. �1614.410.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil 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. 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.

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:

Oct. 28, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat

1Specifically, the AJ stated:

In the over 200 cases I have processed, I have never before encountered

such a continuing flagrant disrespect for the administrative process,

and one which caused so much difficulty to complainant and her counsel.

2The previous decision also stated incorrectly that appellant's brief

was untimely by one day, having failed to note that October 9, 1995,

was a federal holiday.

3In a motion filed January 13, 1995, counsel stated that she and her

partners routinely receive $250 per hour in similar proceedings relying

on a matrix prepared by the U.S. Attorney's Office (matrix).

4Similarly, we grant counsel the additional 0.5 hours expended after

March 10, 1995.