Dayle H.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 18, 2017

0120150116 (E.E.O.C. Apr. 18, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Dayle H.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120150116

Hearing No. 470-2013-00080X

Agency No. 200J-0583-2012101769

DECISION

On August 5, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
concerning her request for attorney’s fees as a result of prevailing on her equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et
seq. For the following reasons, the Commission MODIFIES the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Voucher
Examiner, GS-5, at the Agency’s Richard L. Roudebush VAMC, Administrative Services
Fiscal Center, in Indianapolis, Indiana. On May 16, 2012, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of race (African-
American), color (Black), disability, and in reprisal for prior protected EEO activity when: 1)
she was subjected to hostile workplace harassment; 2) she was denied a reasonable
accommodation; and 3) she was forced to resign.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ held a hearing and issued a decision on July 21, 2014, finding that Complainant proved
that the Agency subjected her to discrimination with respect to her claim of improper denial of
reasonable accommodation, but rejecting the other claims of the complaint.

Counsel for Complainant submitted an attorney’s fee petition to the AJ seeking an award of
$58,257.30 in attorney’s fees and $1,219.91 in costs. In response, the AJ awarded
Complainant $22,655.05 in attorney’s fees and $1,219.91 in costs. From that decision,
Complainant brings the instant appeal.2

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). An AJ's conclusions of law are subject to a de novo standard of review,
whether or not a hearing was held.

Attorney’s Fees3

An award of attorney's fees is determined by calculating the lodestar, i.e., by multiplying a
reasonable hourly fee times a reasonable number of hours expended. Bernard v. Dep't of
Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998) (citing Hensley v. Eckerhart,
461 U.S. 424 (1983)). 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 on which he spent his time by submitting sufficiently detailed
and contemporaneous time records to ensure that the time spent was accurately recorded. Id.

Hourly Rate

The law is well-established that a successful civil rights litigant is entitled to be reimbursed for
attorney’s fees incurred at a reasonable hourly rate based on “prevailing market rates in the
relevant community” for attorneys of similar experience in similar cases. Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 11,

2 On August 27, 2014, after the instant appeal was filed, the Agency issued a final order fully
implementing the AJ’s decision. In light of the Agency’s order, although the appeal was
initially premature, we will proceed to address the merits of the appeal.
3 Complainant’s notice of appeal limits the issues before us to the question of the appropriate
amount of the award of attorney’s fees.
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§ VI.F.1 (Aug. 5, 2015). Here, the parties differ4 on the question of which is the appropriate
“community” for determining the prevailing attorney’s fees rate. Complainant seeks
reimbursement at rates charged in the Washington, D.C. area, where Complainant’s counsel
maintains offices. The Agency argues for prevailing rates in the Indianapolis, Indiana area,
where Complainant resides and the actions underlying the complaint occurred.

The Commission has held that if a party does not find counsel readily available in the locality
of the case with whatever degree of skill that may reasonably be required, it is reasonable for
the party to go elsewhere to find an attorney. See Harden v. Soc. Sec. Admin., EEOC Appeal
No. 0720080002 (Aug. 12, 2011) (citing Southerland v. U.S. Postal Serv., EEOC Appeal No.
01A05403 (Oct. 16, 2002)). The burden is on the agency to show that a complainant's decision
to retain out-of-town counsel was unreasonable. See id. The Commission addressed this issue
in Taber v. United States Postal Service, EEOC Appeal No. 0120110658 (June 20, 2012).
That case arose in North Carolina, which the Agency argued was the relevant community for
determining prevailing attorney’s fee rates. As in the instant case, the complainant argued that
the Washington, D.C. area, where the complainant’s counsel’s practice was located, was the
relevant geographic area. The Commission held that the Agency bore the burden of proving
that hiring out-of-state counsel was unreasonable and found that the Agency had successfully
borne that burden by showing that attorneys with relevant experience were available to
represent the complainant in North Carolina.

Applying the same analysis here, we find that the Agency has not carried the burden of
proving that qualified counsel was available to represent Complainant in the Indianapolis area,
obviating the need for out-of-state counsel. The only evidence the Agency adduced on the
question of the availability of counsel with experience in federal sector EEO litigation was an
affidavit from a non-lawyer employee of the Agency whose duties involved interacting with
EEO claimants. In pertinent part, the affiant stated that “. . . I have not heard a complainant
report they were unable to find an attorney based in Indiana that specializes in the area of
employment law . . .” See Exhibit A to Agency Opposition to Complainant’s Attorney’s Fee
Petition. This argument from ignorance, i.e., the proposition that a lack of evidence is proof
that something does not exist, is unpersuasive. The AJ correctly rejected the argument in
determining that qualified counsel was not available to Complainant in the Indianapolis area.

Accordingly, obligations for legal services incurred by Complainant will be reimbursed at the
rate of $510 per hour, the prevailing rate for attorneys with experience comparable to that of
Complainant’s counsel in Washington, DC. Travel time will be reimbursed at one-half that
rate, $255 per hour.

4 Neither party filed an appeal statement in this matter. We glean their arguments from pleadings
presented to the AJ below.
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Number of Hours Expended

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. EEO MD-110, Ch. 11, § VI.F.1. Successful and unsuccessful claims are
not fractionable when they are closely intertwined and involve the same common core of facts.
See Mannon v. U.S. Postal Serv., EEOC Appeal No. 0720070074 (Apr. 4, 2012).

There is a strong presumption that the number of hours reasonably expended multiplied by a
reasonable hourly rate, the lodestar, represents a reasonable fee, but this amount may be
reduced or increased in consideration of the degree of success, quality of representation, and
long delay caused by the agency. 29 C.F.R. § 1614.501(e)(2)(ii)(B). Fee awards may be
reduced by an across-the-board percentage. Blinick v. Dep't of Housing and Urban
Development, EEOC Appeal No. 07A20079 (Feb. 3, 2004) (20% reduction of attorney's fees
when the complainant was only successful on part of her complaint).

Here, we conclude that Complainant should be reimbursed for 50% of the total hours expended
by her attorney in prosecuting this matter. Complainant has pursued three claims here: 1)
hostile workplace harassment; 2) improper denial of reasonable accommodation; and 3) forced
resignation. Complainant prevailed on Claim 2 which was premised on a violation of the
Rehabilitation Act. Our review of the record, including pleadings, the hearing transcript, and
Complainant’s fee petition, indicates that approximately half of the legal services rendered on
behalf of Complainant were undertaken in support of issues related to the Rehabilitation Act.
Those efforts are not fractionable from the successful issues and therefore are reimbursable.
To reflect that division, the lodestar amount will be reduced by 50%.

Total Fee and Cost Award

Regular hours 106.53 x $510/hr = $54,330.30
Travel hours 15.40 x $255/hr = $3,927.00

Loadstar Total $58,257.30

After 50% reduction $29,128.65
Costs $1,219.915

Therefore, we find that the total amount of attorney’s fees and costs to be awarded
Complainant is $30,348.56.

5 The amount of reimbursable costs was undisputed.
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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to modify the
attorney's fee award in accordance with the foregoing.

ORDER

To the extent it has not yet done so and within sixty (60) days of the date this decision is
issued, the Agency is directed to pay Complainant $29,128.65 in attorney's fees and $1,219.91
in costs.

ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 18, 2017
Date