Cherylev.Turner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionOct 20, 2009
0120092153 (E.E.O.C. Oct. 20, 2009)

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

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0120092153

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092153