01A54981
02-03-2006
Deborah C. Alston,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A54981
Agency No. SE0201
DECISION
JURISDICTION
On July 11, 2005, complainant filed an appeal from the agency's June 10,
2005 final decision regarding complainant's request for attorney's fees
and costs. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final decision.
BACKGROUND
In a decision dated October 18, 2004, an Administrative Judge (AJ) found
that complainant was subjected to discrimination on the basis of race,
color, and sex when the agency failed to select her for the position of
Supervisory Grants Evaluation Specialist and ordered remedial relief
to complainant, including attorney's fees in the amount of $41,030.57
and $1,585.14 in costs. The agency appealed the agency's finding to
the Commission. Complainant responded on December 13, 2004 with a
motion to dismiss the agency's appeal as untimely filed. In a decision
dated March 29, 2005, the Commission found that the agency's appeal
was timely but affirmed the AJ's finding of discrimination, including
the AJ's ordered remedies. Alston v. Department of Housing and Urban
Development, EEOC Appeal No. 07A50028.
On April 13, 2005, complainant submitted a fee petition to the agency for
$35,956.25 in attorney's fees and $2,302.55 in costs associated with her
opposition to the agency's appeal to the Commission. Complainant stated
that two attorneys and a paralegal had spent 155 hours replying to the
agency's appeal at the rates of $265.00 and $300.00 for the lead attorney
(A1), $230.00 per hour for an associate attorney (A2), and $95.00 per hour
for paralegal staff from the period beginning December 2, 2004 and ending
May 27, 2005. Complainant claimed that A1's billing rate increased from
$265.00 to $300.00 on January 1, 2005. Complainant's petition included
the following matters:
1. $9,711.25 for 42 hours of work by two attorneys and a paralegal on
the agency's Motion to Dismiss the agency's appeal;
2. $17,722.80 for 77.65 hours of work by two attorneys in preparation of
the reply brief, including 13 entries for two attorneys' teleconferences;
3. $6,219.65 for 24.05 hours for work related to attorney's fees
submissions, including 3.6 hours for conferences with co-counsel on the
issue and 6.25 hours of research;
4. $2,302.55 for costs, including $1.70 for long distance telephone calls;
$560.50 for duplicating services; $40.00 for fax charges; $1,567.60 for
research services; $78.86 for postage; and $55.89 for a courier;
5. $490.00 for A1 and paralegal's work reviewing civil case filing
deadlines and federal regulations regarding civil actions;
6. In total, A1 claimed 37.5 hours of work, A2 104.50 hours, and a
paralegal 13 hours.
On May 12, 2005, the agency requested receipts from complainant
supporting the claimed copy, postage, and fax charges, but received
no response. In a decision dated June 10, 2005, the agency awarded
complainant $20,411.80 in attorney's fees and $1,625.19 in costs.
Specifically, the agency denied 42 hours ($9,711.25) of claimed work
related to complainant's unsuccessful Motion to Dismiss. The agency
reduced the claimed number of hours worked on the reply brief by 20%
or 15.53 hours ($3,571.90) and reduced by 30% or 4.81 hours ($1,106.30)
the hours related to the attorney's fees petition because the agency
found the amount of time claimed was "excessive" or "not reasonable."
The agency also found that $677.36 in claimed costs were not supported by
adequate documentation. The agency also reduced A1's billing rate from
$300.00 per hour to $265.00 for work done after December 2004 because
the agency concluded that complainant had not provided documentation to
support the higher billing rate.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency made "unreasonable judgments
and unreasonable requests for information already provided" regarding her
request for attorney's fees. Complainant maintains that her requested
attorney's fees and costs are supported by the documentation and receipts
she submitted to the agency. Complainant further argues that the agency's
conclusion that the time spent by the lead attorney on the case was
duplicative of time spent by the co-attorney was erroneous because this
case demanded that work be done by both lead counsel and his associates.
Finally, complainant argues the requested costs should be awarded because
such services are a part of normal operations for attorneys.
In response, the agency contends that it properly reduced the amount
of attorney's fees awarded to complainant by $13,919.25 and deducted
$677.36 in costs. The agency argues that because the Commission denied
complainant's Motion to Dismiss in its decision in Appeal No. 07A50028,
complainant is not entitled to the requested $9,711.25 attorney's fees
for 42 hours of work incurred on the unsuccessful Motion. The agency
further argues that the 24.05 hours claimed by complainant's attorneys
for preparation of the fee petition is "clearly unreasonable" because the
petition only included a short description of the law, a general statement
of the reasonableness of the fees, and invoice statement of the fees and
did not involve remarkable or complex issues that would warrant 24.05
hours of work. The agency also argues that complainant attorneys' claim
that they spent 77.65 hours on complainant's appeal response is excessive.
Finally, the agency contends that complainant's request for $560.50 in
duplication costs, $40.00 in fax charges, and $76.86 is not supported
by any documentation, although the agency requested that complainant
submit receipts for these items on May 12, 2005.
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.
Hours expended on Motion to Dismiss
Complainant claims that her attorneys should be compensated for 42 hours
of work done on a motion to dismiss the agency's appeal. We find that
complainant is not entitled to attorney's fees for 42 hours ($9,711.25)
of attorney's fees incurred in preparing the unsuccessful Motion to
Dismiss because complainant was not a prevailing party with respect to
this matter.
Other Hours Claimed
As a prevailing party, complainant is entitled to receive reasonable
attorney's fees for work associated with his successful opposition to
the agency's appeal of the discrimination finding and the preparation
of the related fee petition itemizing her attorneys' work on the appeal
opposition.
Complainant's lead attorney (A1) is a partner at a large law firm
in Anchorage, Alaska and had approximately 20 years of experience
in discrimination and labor law during the relevant time period.
He contends that he also lectures "extensively" on employment and
wage law and has constitutional and employment cases before courts and
administrative processes throughout the nation. The associate attorney
(A2) who also worked on complainant's case had approximately eleven years
of experience in complex civil litigation, including employment claims,
during the relevant time period. In an affidavit, A2 stated that she
has litigated various types of discrimination cases before the Alaska
Supreme Court, the Alaska Superior Court, and federal court.
The agency appealed the AJ's finding of discrimination on December 2,
2004, the Commission affirmed the AJ's decision on March 29, 2005, and
complainant submitted her attorneys' fee petition on April 13, 2005.
Complainant's attorneys claimed that during this four month period, they
expended 155 hours of work opposing the agency's appeal to the Commission,
entitling them to $35,956.25 in attorney's fees and $2,302.55 in costs.
Upon review of complainant's fee petition, we find that the number of
hours claimed by complainant's attorneys is unreasonable and appears
greatly inflated. We note that the AJ determined that complainant was
entitled to receive $42,615.71 in attorney's fees and costs for prevailing
on the underlying case which took a much longer time to litigate, yet
complainant's attorneys seek only $4,356.91 less for defending the AJ's
finding on appeal. The documents submitted by complainant's attorneys
consisted only of a reply brief that relied heavily on arguments already
found in the AJ's decision and documents submitted previous to the appeal
and a fee petition which did not contain any significant legal analysis.
Moreover, in light of how experienced both A1 and A2 are in employment, it
is puzzling that they required the amount of preparation, consultation and
research time claimed in the fee petition to defend an AJ's discrimination
finding in a selection case. From this, the Commission concludes that
a fee reduction is clearly warranted. When a fee reduction is in order
based on excessive hours, it is not necessary for the Commission to
"perform a detailed analysis to determine precisely the number of
hours or types of work for which no compensation is allowed; rather,
it is appropriate to reduce the hours claimed by an across-the-board
reduction." Abbate v. Department of Navy, EEOC Appeal No. 01971418
(March 24, 2000) (citing, Finch v. United States Postal Service, EEOC
Request No. 05880051 (July 15, 1988)). We determine that if anything,
the agency's 20% reduction of A2's claimed hours on the reply brief and
30% reduction of A2's work on the attorney's fees petition was a rather
modest reduction in light of our conclusion that the claimed hours were
inflated and unreasonable. However, we also conclude that the agency
failed to properly calculate the reasonable hourly rate for work done
by A1 after December 2004 because the record supports the conclusion
that A1's reasonable hourly rate increased from $265.00 to $300.001 in
January 2005. We find that the agency's failure to raise A1's hourly
rate to $300.00 after December 2004 is offset by its modest reduction
of the inflated claimed hours, and therefore we will not disturb the
final decision's determination of attorney's fees for this matter.
Costs
Complainant seeks the reimbursement of $2,302.55 in costs. However, a
review of the record reveals that complainant has provided no receipts
or other documentation to support claimed fax, duplication, or postage
expenses totaling $677.36, although the agency requested the missing
documentation from complainant. Expenses claimed for courier service,
research, and telephone calls are supported by receipts and other
billing documents. Therefore, we find that the agency properly found that
complainant was entitled to the reimbursement of only $1,625.19 in costs.
Finally, we note that complainant's fee petition sought additional
attorney's fees and costs solely associated with litigation before the
agency's appeal. A final determination of attorney's fees for this
portion of the case was made by the AJ and affirmed in our decision in
Appeal No. 07A50028. Complainant failed to challenge this determination
during the previous appeal or by requesting reconsideration. Therefore,
complainant's request for additional attorney's fees and costs associated
with the pre-appeal stage of this case will not be considered further.
CONCLUSION
Accordingly, the Commission AFFIRMS the agency's final decision awarding
complainant $20,411.80 in attorney's fees and $1,625.19 in costs.
ORDER
To the extent that it has not already done so, the agency shall pay
complainant $20,411.80 in attorney's fees and $1,625.19 in costs within
thirty (30) calendar days of the date this decision becomes final.
The agency shall demonstrate compliance with this action by providing a
copy of the check sent to complainant to the Compliance Officer referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (M0701)
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 (S0900)
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. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_ February 3, 2006_________________
Date
1 The supporting documentation consists of an affidavit from A1, A2,
and another Anchorage attorney affirming that as of January 1, 2005,
the reasonable hourly rate for an attorney with A1's experience and
expertise is $300.00 in the Anchorage area.
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01A54981
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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