0120140049forweb
03-25-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120140049
Agency No. 6H-000-0001-08
DECISION
Complainant filed an appeal from the Agency's August 15, 2013 Final Decision concerning solely the issue of the award of attorney's fees and expenses to be paid to one of two firms undertaking Complainant's representation in pursuit of relief in the instant complaint. For the following reasons, the Commission MODIFIES the Agency's Final Decision awarding attorney's fees and expenses after a finding of discrimination.
BACKGROUND
We briefly recount the relevant history of Complainant's complaint. In Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120092749 (June 29, 2012), req. for reconsideration denied, EEOC Request No. 0520120553 (Jan. 30, 2013), the Commission found that the Agency retaliated against Complainant for engaging in prior protected activity when Complainant was denied her request for authorization to engage in outside employment, when Complainant was denied her request to work from home on November 16, 2007, and when Complainant was placed on administrative leave pending a fitness for duty examination (FFDE). Having found discrimination on the basis of reprisal, the Commission found it was not necessary to determine whether the Agency also discriminated on the basis of sex or disability with respect to the three identified actions.
The Commission found that Complainant did not establish that she was subjected to discriminatory harassment on any basis, regarding the following incidents (we maintained the numbering system of claims used in our prior decision):
1. On October 27, 2007, Complainant's supervisor, S1, asked Complainant to resign from the Agency's Career Leadership Program.
2. On October 26, 2007, Complainant complained to S1 that she had been assigned clerical work rather than Level 14 work and S1 replied that Complainant could not perform Level 14 work because of her medical restrictions.
4. From October 2, 2007 to November 1, 2007, and after November 15, 2007, Complainant was assigned clerical work.
5. On November 5, 2007, S1 sent Complainant an electronic mail message chastising her for working flex-time.
6. On November 14, 2007, S1 became upset with Complainant for giving medical information to the Agency's area medical officer rather than to S1.
8. On November 15, 2007, S1 called Complainant and told her that she had overstepped her bounds on a project.
10. On April 4, 2008, S1 placed Complainant on mandatory travel.
We ordered the Agency to provide Complainant with remedies for the discriminatory claims, including, among other relief, an award of attorney's fees and costs. The record shows that Complainant was represented by two firms in the course of litigation of her complaint. Following the Commission's denial of the Agency's request for reconsideration of our decision regarding liability, the Agency issued three decisions: one regarding compensatory damages; and one each regarding attorney's fees and costs to each of two law firms representing Complainant.
In its Final Decision of August 15, 2013, the Agency found that Law Firm #1, a firm located in Washington, D.C., should be paid the prevailing market hourly rate for attorneys practicing in Houston, Texas, where Complainant lives, rather than the hourly market rates for attorneys practicing in the District of Columbia. Additionally, the Agency found that because Complainant prevailed on only three out of ten claims of discrimination, the total award of attorney's fees should be reduced by 60% to reflect the limited degree of success achieved. The Agency noted that the various claims are not so intertwined and do not arise from a common set of core facts such that they cannot be separated. The Agency further found that certain charges listed in the fee petition as expenses, specifically, for computer-based legal research and file administration, are overhead expenses which should not be paid outside of the hourly rate. The Agency determined that a reasonable sum for services rendered by Law Firm #1 is $10,384.80, and found that it would pay expenses in the amount of $867.63.
On appeal, Complainant requests that the Commission order the Agency to pay $43,821.93 as the appropriate award of attorney's fees and costs, through March 2013. Complainant states that she hired attorneys practicing in Washington, D.C., because she was working and living in the Washington, D.C. area as a requirement of her job during the week at the time she pursued her complaint against the Agency. Additionally, the witnesses identified in Complainant's complaint are primarily located in the Washington, D.C. area. Complainant further states that the claims of her complaint arose from a common set of core facts and are inextricably intertwined.
ANALYSIS AND FINDINGS
The Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing complainant. 29 C.F.R. � 1614.501(e); see EEOC's Management Directive 110 (MD-110) (Nov. 9, 1999) Chapter 11. Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. � 1614.501(e)(ii)(B).
All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant, or otherwise unnecessary hours. MD-110 at 11-15. A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. MD-110 at 11-6. An application for attorney's fees must include a verified statement of attorney's fees accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. MD-110 at 11-9. While the attorney is not required to record in great detail the manner in which each minute of his time was expended, the attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. See Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). The attorney requesting the fee award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003).
In the instant case, we find that Law Firm #1 has submitted the requisite fee petition showing the services rendered and identifying the person performing the various tasks together with the rate billed by that person. The fee petition also includes an itemized statement of costs and a supporting affidavit from the supervising billing attorney.1
Reasonable Hourly Rate
The reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum v. Stenson, 465 U.S. 886 (1984). The Agency determined that Complainant should be awarded the prevailing rates for attorneys in the Houston, Texas area where Complainant lives and actions identified in the complaint arose. On appeal, Complainant contends that the "Laffey Matrix" of attorney's fees established by the U.S. Attorney's Office should be used to determine the reasonable hourly rate. Complainant states that she was living and working in the Washington, D.C. area during the relevant time period, as directed by her supervisor, S1, who placed Complainant on mandatory travel. Thus, Complainant maintains that the Agency should have used the "Laffey Matrix" for the Washington, D.C. area market rate. We note that the Commission and courts have held that the hourly rate for Washington, D.C. area attorneys is generally determined by the "Laffey Matrix." See, e.g., Jimenez v. Dep't of Health and Human Serv., EEOC Appeal No. 0120083765 (June 12, 2012).
The Commission also has found that if a party does not find counsel readily available in her locality with whatever degree of skill that may reasonably be required, it is reasonable that the party may go elsewhere to find an attorney even if it results in the payment of a higher hourly rate than the prevailing market in the location where the action arose. See Southerland v. U.S. Postal Serv., EEOC Appeal No. 01A05403 (Oct. 16, 2002). If a higher-priced, out-of-town attorney, however, renders services which local attorneys could do as well, and there is no other reason to have them performed by the out-of-town attorney, then it may be appropriate to allow only the hourly rate which local attorneys charged for the same service. Id.
In the instant case, we find the record shows that in April 2008, Complainant was required by her supervisor to work in the Washington, D.C. area, at the Agency's Arlington, Virginia facility on Tuesdays, Wednesdays, and Thursdays. Complainant filed the instant complaint in February 2008, and we find she reasonably retained counsel from Washington, D.C. counsel where she was living and working during most weekdays. The Agency points out that Complainant consistently used her home address in Houston, Texas for contact throughout the EEO complaints process. We find that Complainant reasonably requested that correspondence be sent to her Texas home address where she was living Friday through Monday, and which address appears to be her permanent, family residence. Nevertheless, for three out of five business days, when Complainant presumably was available to meet with counsel, she was located in the Washington, D.C. area. We therefore find that the Agency erred in calculating the appropriate award of attorney's fees based upon the prevailing market rates for attorneys practicing in Houston, Texas rather than in the Washington, D.C. area.
We concur with Complainant that she is entitled to an award of attorney's fees calculated using the hourly rates as described in the Laffey Matrix. Jimenez v. Dep't of Health and Human Serv., EEOC Appeal No. 0120083765 (June 12, 2012). The Agency has not contested Complainant's calculations for legal services in the Washington, D.C. area. Law Firm #1's fee petition states: Attorneys A and B have more than 20 years experience in federal litigation; and Attorneys C and D have between 11 and 19 years of experience. Other charges were also included for Paralegal A. We find that Complainant's unchallenged calculations of $42,683.00 in attorney's fees based upon the Laffey Matrix for attorneys in the Washington, D.C. area (with the indicated years of experience) is therefore proper to consider as a starting point in calculating the total fees to be awarded for work performed by Law Firm #1. See Complainant v. Dep't of Agriculture, EEOC Appeal No. 0120112135 (July 19, 2013).
Costs
The Commission has held that reasonable costs incurred by a prevailing party in the course of litigation of an EEO complaint are compensable. See EEOC MD-110, at p. 11-4 � V(A); Hafiz v. Dep't of Defense, EEOC Petition No. 04960021 (July 11, 1997). Costs may include such items as mileage, postage, telephone calls, photocopying, and any other reasonable expenses incurred in connection with litigating the EEO complaint. Williams v. Dep't of Veterans Affairs, EEOC Petition No. 04A40047 (June 30, 2005). It is Complainant's burden to prove that such costs were incurred by providing documentation, such as bills for copying, or receipts for mailings. Id.
In assessing Complainant's request for costs, the Agency determined that the amount claimed by Complainant should be reduced by charges for file administration ($100) and for computer research ($171.30) which the Agency deemed to be an overhead expense. We agree and find that Complainant's petition for costs should be reduced by $271.30. See Woodley v. U.S. Postal Serv., EEOC Appeal No. 0120103425, 01201107271 (August 6, 2012); Mohar v. U.S. Postal Serv., EEOC Appeal No. 0720100019 (August 29, 2011), req. for recon. denied, Request No. 0520120027 (March 29, 2012). We find that Complainant is entitled to a reasonable award of costs and concur with the Agency that Complainant's request for costs should be lowered by $271.30 for a total award of costs of $867.63 ($1,138.93 - $271.30).
Percentage of Success
Attorney's fees may not be recovered for work on unsuccessful claims. Hensley v. Eckerhart, 461 U.S. 424, at 434-35 (1983). Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See Nat'l Ass'n of Concerned Veterans v. Sec'y of Defense, 675 F.2d 1319, 1327 n.13 (D.C. Cir. 1982). Claims are fractionable or unrelated when they involve distinctly different claims for relief that are based on different facts and legal theories. Hensley, 461 U.S. at 434-35. In cases where a claim for relief involves "a common core of facts or will be based on related legal theories," however, a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Id. at 435. "The hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims." See, EEO MD-110, Ch. 11, � 6.A.7 (citation omitted).
We find that the Agency properly reduced Complainant's award of attorney's fees by 60% based on her failure to prevail on her harassment claim. We find the incidents of harassment identified in Complainant's complaint are fractionable from the discrete actions where we found discrimination. We therefore reduce Complainant's request for $42,683.00 in attorney's fees by 60% for a total award of attorney's fees of $17,073.20.
CONCLUSION
After a careful review of the record in its entirety, including consideration of all statements submitted on appeal, we MODIFY the Agency's Final Decision addressing the amount of attorney's fees and costs to be awarded to Law Firm #1.
ORDER
The Agency shall take the following actions:
Within 60 days of the date on which this decision becomes final, to the extent not done so previously, the Agency shall pay Complainant the amount of $17,940.83 (for attorney's fees of $17,073.20 plus costs of $867.63) for services performed by Law Firm #1.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (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
March 25, 2015
__________________
Date
1 Law Firm #1's request for $43,821.93 in attorney's fees and costs reflects a minor mathematical correction to its initial fee petition.
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0120140049
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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