01-2007-2877_Brown
02-25-2009
Deirdra Brown, Complainant, v. Eric Holder, Attorney General, Department of Justice, Agency.
Deirdra Brown,
Complainant,
v.
Eric Holder,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120072877
Agency No. A02011030
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 21, 2007 final decision concerning her
entitlement to attorney's fees.1
BACKGROUND
On December 20, 2006, the Commission concluded that complainant was
discriminated against in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq., on the bases of sex
(female), race (African-American) and in reprisal for prior EEO activity
when (1) on April 5, 2002, the agency denied her request to attend a
training conference in France; and (2) by letter dated May 10, 2002,
the agency terminated her employment.2
On January 17, 2007, complainant's attorney (A1) submitted a Verified
Statement of Attorney's Fees and Costs (Fee Petition) which requested
payment of $143,937.05 in attorney's fees and costs for A1 and his
co-counsel (A2). The Fee Petition requested payment for 292.75 hours
incurred by A1 at an hourly rate of $350. The Fee Petition also requested
payment for 253.25 hours incurred by A2 at an hourly rate of $150.
On March 7, 2007, A1 submitted a Supplemental Verified Statement of
Attorney's Fees and Costs (Supplemental Fee Petition) requesting an
additional $10,250 in attorney's fees (i.e., 21 hours for A1 and 36
hours for A2) and $37.70 in costs. In total, complainant seeks payment
of $152,037.50 in attorney's fees and $3,937.05 in costs.
In its May 21, 2007 Final Agency Decision (FAD), the agency concluded
that complainant's request for payment for nearly 600 hours of attorney's
fees is "grossly excessive." In addition, the agency concluded that
complainant's attorneys failed to meet their burden in showing that the
hours worked were reasonably expended. Specifically, the agency found
that 20.25 hours of billing entries failed to identify the specific
work performed or the individual hours spent on a particular task.
The agency also concluded that a significant portion of the Fee Petition
seeks payment for work performed on unrelated matters. In addition,
the agency asserts that many other billing entries indicate an excessive
amount of billing when compared to the stage of the process and the small
amount of work product produced by complainant's attorneys. For example,
the agency noted that complainant's attorneys are seeking payment for: (1)
at least 23 hours of work performed in the furtherance of complainant's
supervisor's (C1) EEO complaint (i.e., a separate client and case); (2)
work performed in relation to two pro se civil complaints filed against
the Department of Justice under the Freedom of Information Act (FOIA)
and the Privacy Act; (3) work performed in relation to complainant's pro
se appeal to the 11th Circuit Court of Appeals; (4) complainant's pro
se appeal filed with the Commission; (5) approximately 250 hours of work
related to discovery efforts conducted prior to complainant's voluntary
withdrawal of her hearing request; (6) approximately 130 hours of work
performed over a period of about three years when complainant was either
waiting for a final agency decision or waiting for a decision by the
Commission with respect to her appeal (i.e., inactive times during the
processing of complainant's EEO complaint); and (7) 37.25 hours of work
performed prior to the agency's notification of legal representation.3
After eliminating specific hours noted above, the agency applied
an across-the-board reduction of the remaining hours claimed by
complainant's attorneys (169.75 hours for A1 and 212.25 hours by A2 or
382.75 total hours). The agency asserts that a seventy-five percent
(75%) across-the-board reduction is appropriate when considering the
limited degree of success on the issues alleged in the EEO complaint
and, more importantly, given the complexity of the case and the nature
of the work billed. The agency noted that in light of the experience
and knowledge in federal EEO law that complainant's attorneys possess,
it was unclear why the attorneys required so much preparation, research
and consultation time, especially when no hearing was held. Moreover,
the agency noted that after the initial discovery period between February
and June 2003, the only tangible work product that was produced by either
A1 or A2 was the response to the agency's Request for Reconsideration in
February 2007 and the fee petitions.4 Moreover, the agency concluded that
the 250 hours of discovery-related billing which occurred between February
28, 2003 and the date complainant withdrew her request for a hearing on
June 27, 2003 (i.e., a period of four months) was excessive. The agency
also noted that the record indicates that complainant's attorneys billed
her case for work performed in C1's discrimination case as late as
August 23, 2004, at the time when complainant filed her pro se appeal.
While some of those hours were excluded by the agency as noted above,
the agency concluded that the Fee Petition contains numerous additional
entries regarding conferences between complainant, her attorneys, and C1,
which makes it impossible for the agency to determine what percentage of
such conferences were devoted solely to complainant's case. The agency
also found numerous billing entries in which it is impossible to determine
whether the work was related to the present case or to unrelated claims
filed under the Freedom of Information Act and the Privacy Act.
The agency concluded that, given the failure of the Fee Petition and
Supplemental Fee Petition to clearly show which hours were reasonably
expended and directly related to the EEO matter at issue herein,
an additional seventy-five percent (75%) reduction of the remaining
hours is appropriate. Accordingly, the agency calculated that 96
hours represents a reasonable number of hours that complainant's
attorneys expended in furtherance of the complaint at issue herein.
The agency further explained that because the hours claimed in the Fee
Petition were distributed fairly equally, it concluded that the total
number of reimbursed hours would be split evenly between each attorney.
Accordingly, the agency agreed to award A1 48 hours at his hourly rate
of $350 and to award A2 48 hours at his rate of $150, resulting in a
total attorney's fee award of $24,000.
The agency agreed to reimburse complainant $197.54 in photocopying costs.
However, the agency denied the reimbursement of additional costs because
complainant did not provide supporting documentation.
ANALYSIS AND FINDINGS
Title VII and 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 also EEOC's Management Directive 110
(MD-110) (November 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); Blum v. Stenson, 465 U.S. 886 (1984);
Hensley v. Eckerhart, 461 U.S. 424 (1983).
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. Department 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. National Ass'n of Concerned Veterans v. Department of Defense,
675 F.2d 1319 (D.C. Cir. 1982); Koren v. United States Postal Service,
EEOC Request No. 05A20843 (February 18, 2003).
We agree with the agency that much of the work described in the billing
entries is so general and vague that it is impossible to determine the
reasonableness of the hours expended. In addition, it appears that
the fee petitions seek a fee award for a substantial amount of hours
expended on unrelated matters. We also note that the fee petitions seek
a fee award for numerous hours billed before notifying the agency of the
attorneys' representation of complainant.5 In addition, we find that
complainant's attorneys applied their full hourly rate to travel time.6
Accordingly, we agree with the agency that a fee reduction is warranted.
When a fee reduction is in order based on excessive hours, it is not
necessary for the Commission "to perform detailed analysis to determine
precisely the number of hours or type 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 the Navy, EEOC
Appeal No. 01971418 (March 24, 2000) (citing, Finch v. United States
Postal Service, EEOC Request No. 05880051 (July 15, 1988); see also Kloock
v. United States Postal Service, Petition No. 04A40012 (June 16, 2004);
Altman v. Department of the Army, EEOC Appeal Nos. 01A10691& 01A01571
(June 20, 2002).
Rather than following the agency's method of calculating the appropriate
fees by performing a line-by-line reduction on one portion of the
billing entries and an across-the-board reduction on another portion of
the billing entries, we find an across-the-board reduction on the total
number of billable hours to be more appropriate. Given the substantial
number of billing entries that are not sufficiently detailed or appear
inappropriate, we conclude that an across-the-board reduction of hours by
50% is reasonable. Further, while complainant did not prevail on every
aspect of her complaint, we find that a further reduction in the fee award
is not necessary since the successful and unsuccessful claims are closely
intertwined and to the extent they are subject to differentiation, the
50% reduction is sufficient. 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)).
Accordingly, we find that complainant is entitled to reimbursement of
A1's fees in the amount of $54,908 (156.88 hours7 multiplied by an hourly
rate of $350) and A2's fees in the amount of $21,694.50 (144.63 hours8
multiplied by an hourly rate of $150) for a total attorney's fee award
of $76,602.50.
With respect to the claim for reimbursement of legal costs, we find that
the agency properly denied reimbursement of various costs incurred
by complainant, because the record is devoid of receipts, bills,
or other documentary evidence in support of such costs. See Canady
v. Department of the Army, EEOC Request No. 05890226 (December 27,
1989); Alston v. Department of Health and Human Services, EEOC Appeal
No. 01A54981 (February 3, 2006); Coard v. Department of Justice, EEOC
Appeal No. 01A30222 (February 27, 2004). The record does not support
an award of costs greater than $197.54.
CONCLUSION
After a careful review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Commission to MODIFY the final agency decision addressing the
amount of attorney's fees to be awarded. We conclude that complainant
is entitled to attorney's fees in the amount of $76,602.50 and costs in
the amount of $197.54, for a total award of $76,800.04.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within thirty (30) days of the date on which this decision becomes
final, to the extent not done so previously, the agency shall tender to
complainant payment in the amount of $76,602.50 in attorney's fees and
$197.54 in costs, for a total of $76,800.04.
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 (H0900)
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 (K1208)
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 (M1208)
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 tends 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 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 (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
February 25, 2009
Date
1 We note that while complainant requests the docketing of a Petition for
Enforcement (PFE) on the attorney's fee and other matters, no PFE has been
docketed to date because compliance efforts by the agency are ongoing.
2 The Commission did not find discrimination with respect to nine
other claims which alleged harassment and disparate treatment with
respect to: (1) false accusations made against complainant; (2) damage
to complainant's car; (3) complainant's work product being sabotaged;
(4) racial slurs and other verbal harassment toward complainant; (5)
poor performance appraisals; (6) the requirement that complainant take
the Alabama state bar examination; and (7) the agency's failure to
convert complainant to a permanent non-probationary employment status.
3 The agency also asserts that A1 and A2 improperly seek payment
calculated at their full hourly rates (rather than 50% of such rate)
for hours which they spent traveling for a mediation and deposition.
4 The record shows that complainant filed her appeal with the Commission
pro se.
5 Under 29 C.F.R. � 1614.501(e)(l)(iv), an attorney is entitled to fees
for services performed after the filing of a written complaint and after
the complainant has notified the agency that he or she is represented
by an attorney, except that fees are allowable for a reasonable period
of time prior to the notification of representation for any services
performed in reaching a determination to represent the complainant.
The Commission has previously found that an attorney may reasonably
expend up to two hours to make a determination regarding representation.
See Vincent v. Department of the Army, EEOC Request No. 05941012 (February
27, 1996); Sinnott v. Department of Defense, EEOC Appeal No. 01973683
(March 17, 2000).
6 The Commission has long held that the attorney's hourly rate should be
reduced by fifty percent (50%) for travel time. See Hooper v. Defense
Logistics Agency, EEOC Appeal No. 01873384 (May 3, 1988).
7 This amount of hours represents the total number of hours claimed by
A1 reduced by fifty percent (50%).
8 This amount of hours represents the total number of hours claimed by
A2 reduced by fifty percent (50%).
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0120072877
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013