Deborah C. Alston, Complainant,v.Mike Leavitt, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionFeb 3, 2006
01A54981 (E.E.O.C. Feb. 3, 2006)

01A54981

02-03-2006

Deborah C. Alston, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.


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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01A54981

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