0120092153
10-20-2009
Cheryle V. Turner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Cheryle V. Turner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120092153
Agency No. 4H300003404
DECISION
On April 23, 2009, complainant filed an appeal from the agency's April
21, 2009 final decision concerning her entitled to attorney's fees.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission MODIFIES the
agency's final decision.
ISSUES PRESENTED
Whether the agency's decision to award attorney's fees in the amount of
$2,489.05 was in error.
BACKGROUND
Complainant initiated a complaint in this matter dated October 14, 2004
alleging discrimination based on disability and reprisal for her prior
protected EEO activity when she as subjected to harassment in that:
1. On September 24, 2003, she was instructed to work beyond her
limitations, chastised for letting a stranger into the building and
being rude to others, and told to remain gainfully employed all day;
2. On November 15, 2003, a new job offer was left on her desk which
contained specific instructions with response dates already expired;
3. On May 24, 2004, her leave slips were altered and she was required
to submit documentation;
4. On June 7, 2004, she was shown a police report and accused of not
setting the alarm two days previously;
5. On June 17, 2004, she was told not to use her cell phone; and
6. On June 18, 2004, her request for leave without pay in lieu of sick
leave was denied.
Following a hearing, on complainant's disability and reprisal claims,
an EEOC Administrative Judge (AJ) determined that reprisal discrimination
with respect to claim 1 had occurred. See Turner v. United States Postal
Service, EEOC Hearing No. 110-2005-0277X-AES (May 26, 2006). The AJ
concluded that as a result of the agency's discrimination, complainant
was entitled to $9000 in compensatory damages, $9,317 in attorney's
fees and $844.55 in costs. See id. The AJ's decision also included a
finding of no discrimination concerning complainant's harassment claims;
claims 2-6, based on complainant's disability and in reprisal for her
prior protected activity.
The agency disagreed in part with the with the AJ's findings and
appealed to our office. See Turner v United States Postal Service,
EEOC Appeal No. 0720060078 (October 31, 2008). Specifically, the agency
rejected the AJ's finding of reprisal discrimination concerning claim 1.
We note that the agency did not challenge on appeal, the AJ's award
of compensatory damages or attorney's fees. The record reflects that
the agency paid complainant $9000 in compensatory damages and paid
complainant's attorney $9,317 in attorney's fees that the AJ awarded in
this matter. Complainant responded to the agency's appeal and filed a
cross-appeal alleging that the AJ's finding of no discrimination with
respect to claims 2-6 was incorrect and that the award of compensatory
damages and attorney's fees should be greater.
In our October 31, 2008 appellate decision, we affirmed the AJ's decision
in its entirety, reversing the agency's final order to the extent that
it had rejected the AJ's finding of reprisal discrimination concerning
claim 1. We also rejected complainant's cross-appeal regarding claims 2-6
on the grounds that complainant failed to demonstrate that the alleged
harassment concerning claims 2-6 was based on any discriminatory animus
toward complainant's disability or in reprisal for her prior protected
EEO activity. Moreover the Commission found that complainant failed to
demonstrate in her cross-appeal, that she was subjected to harassment
which was sufficiently severe or pervasive that it altered the conditions
of complainant's employment with respect to claims 2-6.
Following the Commission's decision in Turner v. Unites States Postal
Service, EEOC Appeal No. 0720060078 (October 31, 2008), complainant's
attorney requested additional fees and submitted to the agency a
Supplemental Verified Statement of Attorney's Fees, on December 8, 2008
for fees incurred in filing the above referenced appeal. Therein,
complainant, through her attorney, requested an additional sum of
$6,022.50 in attorney's fees and $6.60 in copying costs. On April
21, 2009, the agency issued a decision finding the agency's request
excessive.
The record indicates that complainant's attorney requested fees for
complainant's response to the agency's appeal regarding claim 1, and for
filing complainant's cross-appeal concerning claims 2-6. However, the
agency noted that complainant prevailed only as to the agency's appeal
of claim 1; she did not prevail as to her cross-appeal concerning claims
2-6 which made up the bulk of complainant's appeal brief. As such, the
agency indicates that the entire fee request should be reduced by 50%.
In addition to the 50% reduction, the agency believes that certain hours
claimed were excessive and warranted reduction.
The agency points out that complainant's attorney failed to identify
[named individual] as an attorney or a paralegal, yet claims that the
individual spent 8.9 hours drafting and 4.9 hours revising the appeal
brief in this matter at a rate of $175.00 per hour. The agency believes
that the revision time is excessive since it occurred after complainant's
attorney specified what the revisions should be. The agency believes that
the total hours of 4.9 hours claimed on August 23 and 24, 2006b should
be reduced to 2 hours. In addition, the agency finds excessive, an entry
claim of 1 hour of attorney time for mailing the brief. The agency finds
this claim unreasonable and as such disallowed the entry altogether.
The agency also reduced a time entry of 1.2 hours of attorney time
spent reading the 6 page decision of the Commission's Office of Federal
Operations. Accordingly, the agency reduced the time to .7 hours.
The agency finds the 1.40 time entry to prepare the 2 page fee petition
to be excessive in light of the fact that the time entries existed in an
automated billing system which requires little customizing. Consequently,
the agency reduced the December 5, 2008 entry from 1.40 hours to 1 hour.
Finally, the agency finds excessive the hourly rate of $110.00 for [named
individual] which complainant's attorney identifies as a legal assistant.
The agency finds that since complainant's attorney had already spent time
preparing, revising and finalizing the brief document, it is unreasonable
to believe that it took a legal assistant an additional 1.5 hours to file
the document. In that regard, the agency reduced the time on December 8,
2008 from 1.5 hours to 1 hour.
The agency's decision on attorney's fees is summarized as follows:
Total individual time deductions - $1,051.00
Attorney claimed fees less individual time deductions - $4,978.10
Adjusted attorney fees less 50% reduction due to degree of
success - $2,489.05.
Through her attorney, complainant filed an appeal in this matter alleging
that the agency's fee reduction was improper. Specifically, complainant
argues that the agency's appeal of the AJ's finding of reprisal
discrimination alone necessitated the need for complainant's brief,
which in turn, complainant argues, discredits the agency's rationale for
a 50% across the board fee reduction. In further support of her claim
that the agency's 50% fee reduction is improper, the complainant states
that both the successful and unsuccessful claims are intertwined and
involve a "common core" of facts. However, the Commission finds that the
successful reprisal claim involved specific incidents on a single day in
September 2003 which the AJ found were sufficiently close in proximity to
complainant's prior protected activity, while claims 2-6 involved several
discrete events occurring over a period of time from November 2003 to June
of 2004. Complainant's attorney admits on appeal that complainant was
not successful in securing any additional findings of discrimination,
nor did she receive any additional monetary award in the form of
compensatory damages or attorney's fees. However, complainant states,
through her attorney that because complainant "reinstated her victory"
on the discrimination claim as a result of her brief in opposition to
the agency's appeal, she is entitled to additional fees and should not
be subjected to a 50% fee reduction for the unsuccessful claims.
ANALYSIS AND FINDINGS
Title VII authorizes the award of reasonable attorney's fees, including
for an attorney's processing of a compensatory damages claim. 29 C.F.R. �
1614.501(e). To establish entitlement to attorney's fees, complainant
must first show that he or she is a prevailing party. Buckhannon Bd. and
Care Home Inc. v. West Virginia Dept. of Health and Human Resources,
532 U.S. 598 (2001). A prevailing party for this purpose is one who
succeeds on any significant issue, and achieves some of the benefit
sought in bringing the action. Davis v. Department of Transportation,
EEOC Request No. 05970101 (February 4, 1999) (citing Hensley v. Eckerhart,
461 U.S. 427, 433 (1983)).
The fee award is ordinarily determined by multiplying a reasonable
number of hours expended on the case by a reasonable hourly rate,
also known as a "lodestar." See 29 C.F.R. � 1614.501(e)(2)(ii)(B);
Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July
17, 1998). In determining the number of hours expended the Commission
recognizes that the attorney "is not required to record in great detail
the manner in which each minute of his time was expended." Id. However,
the attorney does have the burden of identifying the subject matters which
he spent his time by submitting sufficiently detailed and contemporaneous
time records to ensure that the time spent was accurately recorded. Id.
Further, a reasonable fee award may be assessed in light of factors such
as: (1) the time required (versus time expended) to complete the legal
work; (2) novelty or difficulty of the issues; (3) the requisite skill
to properly handle the case; (4) the degree to which counsel is precluded
from taking other cases; (5) the relief sought and results obtained; and
(6) the nature and length of the attorney-client relationship. See Cerny
v. Department of the Army, EEOC Request No. 05930899 (October 19, 1994).
Complainant is only entitled to an award for time reasonably expended.
It does not always follow that the amount of time actually expended is
the amount of time reasonably expended. Elvin v. Department of Labor,
EEOC Request No. 01943425 (August 31, 1995). Rather, "billing judgment"
is an important component in fee setting, and hours that would not be
properly billed to a private client are also not properly billed to
the agency pursuant to a successful EEO claim. Id. Counsel for the
prevailing party should make a "good faith effort to exclude from a fee
request hours that are excessive, redundant or otherwise unnecessary."
See Bernard, EEOC Appeal No. 01966861.
The Commission has held that one method of addressing the appropriate
amount of attorney's fees when a complainant is not completely successful
is to take a percentage across-the-board reduction of compensable time
billed. See Blinick v. Department of Housing and Urban Development, EEOC
Appeal No. 07A20079 (February 3, 2004)(citing McGinnis v. Department of
Defense, EEOC Request No. 05920150 (July 15, 1992)). Even if complainant
did not prevail on every aspect of her complaint, that does not, in
itself, justify a reduction in the hours expended where the successful
and unsuccessful claims are closely intertwined. See id. "Claims are
fractionable or unrelated when they involve distinctly different claims
for relief that are based on different facts and legal theories." Id.
Having reviewed the evidence, we find that the agency's decision was fair
and reasonable and as such we affirm the decision. As the agency pointed
out, complainant only prevailed as to the issue raised in the agency's
appeal. Complainant did not prevail on her cross-appeal and she is not
entitled under law to fees or costs with regard to these actions. We are
persuaded by the agency's arguments regarding the time expenditures on the
complainant's appeal brief regarding the successful reprisal claim and
the fact that complainant failed to prevail on the unsuccessful claims
which the Commission finds made up the bulk of complainant's arguments
on appeal. Moreover, given the initial finding of discrimination,
the agency acted appropriately in reducing the time billed by 50%.
Finally, we note here that that the agency's decision does not address
or challenge the complainant's request for $6.60 in copying costs.
CONCLUSION
For the foregoing reasons, the Commission finds no reason to disturb
the agency's final decision and directs the agency to comply with the
Order below.
ORDER
To the extent that it has not already done so, within thirty (30) days
of the date this decision becomes final, the agency shall:
1. Pay complainant's attorney $2,489 in attorney's fees, and
2. Pay complainant's attorney $6.60 in copying costs.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 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 (M0408)
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 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 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 (T0408)
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 (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
October 20, 2009
__________________
Date
2
0120092153
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120092153