George Castillo, Complainant, Rodney E. Slater, Secretary, Department of Transportation, Agency,

Equal Employment Opportunity CommissionAug 28, 2000
01970175 (E.E.O.C. Aug. 28, 2000)

01970175

08-28-2000

George Castillo, Complainant, Rodney E. Slater, Secretary, Department of Transportation, Agency,


George Castillo v. Department of Transportation

01970175

August 28, 2000

George Castillo, )

Complainant, )

) Appeal No. 01970175

) Agency No. 5-95-081

)

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency, )

)

DECISION

INTRODUCTION

Complainant timely filed an appeal with the Equal Employment Opportunity

Commission (Commission) from a final agency decision concerning his

application for attorney's fees and costs. See Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Accordingly,

the appeal is accepted in accordance with 64 Fed. Reg. 37,644,37,659

(1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented herein is whether the agency properly determined

the reasonable attorney's fees and costs to be awarded in this matter.

BACKGROUND

During the relevant time period, complainant was a Special Agent/Criminal

Investigator with the agency's Office of Inspector General, Fort Worth,

Texas. He filed a formal complaint of discrimination based on race

(Hispanic) and national origin (Mexican American) claiming that (1) he

was not nominated for �Agent of the Year,� and denied awards, special

recognition, and opportunities to work on high profile cases; (2) he

was not fully compensated for working administratively uncontrollable

overtime; and (3) he was subjected to racial slurs and comments.

A hearing was held before an EEOC Administrative Judge (AJ) who issued

a recommended decision (RD) finding discrimination as claimed. The AJ

found that the agency should pay reasonable attorney's fees and costs,

including but not limited to the costs incurred by complainant for the

travel expenses of his counsel from Albuquerque to Dallas, and return

trips, as well as the complainant's expenses for that same travel.

The AJ found that complainant should receive from the agency any and

all compensation associated with the 1993 �Agent of the Year� award,

compensatory damages, including damages for the emotional harm he suffered

as a result of the discrimination.

The agency adopted the AJ's RD regarding the finding of discrimination

in its final decision, but modified the remedy regarding the nomination

of complainant for�Agent of the Year.� The agency found that the

AJ's finding was based on the agency's failure to nominate complainant

for �Agent of the Year,� rather than on complainant's non-receipt of

the award. Therefore, the agency modified the remedy to require the

responsible officials to nominate and consider complainant for the award

for 1993, using the selection criteria used in that year.<2>

On September 24, 1996, the agency issued a final decision disallowing

certain attorney's costs. The agency disallowed the New Mexico Gross

Receipts Tax (GRT) of 5.525%, totaling $1,163.84 because it found that

the attorney failed to submit affidavits from the state bar and/or

other attorneys in the state attesting to the fact that it is usual

and customary for the tax to be charged to the client in this manner.

The agency disallowed half of the amount billed for paralegal services,

31.4 hours at $50 per hour, as contracted with complainant, to 31.4 hours

at $25 per hour because the paralegal submitted a bill for payment to

the attorney for $25 per hour. The agency approved copying and postal

charges, but disapproved long-distance telephone charges, finding that

these items are subsumed in general office expenses and should be factored

into the attorney's normal hourly rate.

The agency disallowed expenses of $1,586.25<3> and $527.81 for services

rendered respectively by two expert witnesses; a vocational rehabilitation

expert and an economist. The agency stated that an expert witness,

as defined by Black's Law Dictionary, p. 519 (5th ed. 1979) is one who

has been qualified as an expert and who thereby is allowed to assist

the jury in understanding complicated and technical subjects not within

the understanding of the average lay person. The agency found that the

witnesses did not provide testimony at the hearing, were not available for

cross examination regarding their statements, were not qualified as expert

witnesses, and were not retained until after the close of the hearing.

The agency further disallowed $1,000 submitted for the economist's Loss

of Earnings Capacity services because the bill was submitted late.<4>

The agency claims that complainant waived his right to reimbursement.

Finally, the agency approved charges incurred for complainant's travel

charged to the attorney's credit card, but disapproved complainant's

travel expenses including mileage, hotel, telephone and airline fares

charged to complainant's credit card. The agency found that attorney's

fees and costs are only payable for costs charged by complainant's

attorney, not by complainant.

On appeal, counsel for complainant (Counsel) argues that he twice

submitted by facsimile (fax), as directed by the agency, affidavits

attesting to the fact that it is usual and customary for the state GRT

to be passed on to the client. Counsel attaches copies of the fax cover

sheet indicating the date and times of the faxes. Counsel notes that

the affidavits were faxed to two different agency phone numbers because

the agency representative was moving his office at the time Counsel was

attempting to convey the information. Counsel notes that, under these

circumstances, it is likely that the affidavits were either lost by the

agency or never delivered to the agency representative, and that he was

not aware that the agency had not received the faxes.

Counsel states that complainant contracted for paralegal services at

$50 per hour, and argues that, although the paralegal billed him $25 per

hour, because of business necessity, he charges clients $50 per hour to

cover the costs associated with the time he spends instructing, directing

and managing the paralegal's work, and his out-of-pocket expenses while

waiting for payment for these services from the client. Counsel also

argues that the $50 amount charged is reasonable for such services

offered by attorneys in the Albuquerque area, and notes that the agency

has approved paralegal charges of $60 to $75 per hour in other cases.

Counsel argues that long-distance telephone charges, where properly

documented, have been allowed by the Commission, and have not been

disallowed as an overhead expense. Counsel argues that he submitted to

the agency detailed records of long-distance telephone calls incurred in

representing complainant in this case. He states that because complainant

resides out-of-state and because the case arose out-of-state, gathering of

witnesses and documents necessitated an inordinate number of long-distance

calls including calls to complainant, the agency representative, and

the AJ.

Regarding disapproval of the expert witnesses's charges,<5> Counsel

argues that the Black's Law Dictionary definition is not authoritative to

preclude reimbursement of expert fees, and that the fact that there was

no jury, because the matter was heard by an EEOC AJ, did not disqualify

them as expert witnesses. Counsel states that the AJ would hear only

limited testimony on complainant's entitlement to compensatory damages

during the hearing, instructing complainant in her RD to submit to her

additional evidence relevant to his claim for compensatory damages.

The witnesses were thus retained after the hearing to provide expert

reports on the assessment of damages, both economic and loss of pleasure

of life, suffered by complainant. Counsel states that it made no sense

to retain their services prior to the hearing because the AJ wanted

first to overcome the threshold issue of liability. He further argues

that the regulations do not confine use of expert witnesses to only the

hearing stage of the complaint process.

Regarding the disapproved travel costs, Counsel argues that the AJ

expressly ordered reimbursement of travel expenses for counsel from

Albuquerque to Dallas, as well as for complainant for the same travel.

He states that the travel was necessary to lodge complainant while

traveling to meet the attorney and the expert witnesses, and to lodge the

attorney during the two-day hearing. He argues that costs that can be

awarded are not limited to those expressly enumerated in the regulations.

Regarding the disapproved airfare, Counsel states that the agency agreed

to pay the fare charged on Counsel's credit card for complainant, but

disallow the fare charged on complainant's credit card for his attorney's

travel to the hearing. Counsel argues that it is irrelevant whether

the fare is charged on his or on complainant's credit card because,

ultimately, complainant will bear the expense, and that the expense is

reasonable and should be compensated.

The agency responds that it did not receive evidence regarding the

customary nature of the GRT charge until it received copies of the appeal,

thus, its denial was proper. The agency argues that it should not pay

Counsel a windfall 100% enhancement of paralegal fees, that the paralegal

charged him $25 per hour and that is what it reasonably should compensate.

The agency further argues that Counsel's retainer agreement contained

no provision for reimbursement of long distance telephone charges, and

that, had complainant lost, he would have had to pay for these costs.

Regarding the expert witness fees, the agency states that the additional

$1,000 was not submitted in a timely manner, and therefore, must be

considered a waiver of such claim. The agency argues that complainant

had ample opportunity to submit evidence on compensatory damages during

the investigation and submitted affidavits from his wife and sister, that

complainant was not precluded from submitting evidence in support of his

claim at the hearing. Further, the agency contends that complainant only

engaged the expert witness after the hearing because he believed that

the agency would pay for their services. Finally, the agency argues

that the regulations did not provide that all expenses incurred by a

complainant should be covered under the umbrella of attorney's fees.

The agency states that out-of-pocket expenses are only recoverable, if at

all, when claimed as part of complainant's damages, not attorney's fees.

FINDINGS AND ANALYSIS

An agency shall award attorney's fees for the successful processing of

an EEO complaint in accordance with existing case law and regulatory

standards. 29 C.F.R. � 1614.501(e)(1)(i). The burden of establishing

entitlement to attorney's fees, including documentation demonstrating

hours expended and appropriate fees charged is upon the complainant.

The attorney requesting the fee award has the burden of proving, by

specific evidence, his entitlement to the requested award. Copeland

v. Marshall,641 F.2d 880,(D.C. Cir. 1980).

The Commission finds, as evidenced by the fax cover sheet stamped with

two recipient phone numbers and the dates and times sent, that Counsel

submitted documentation supporting his claim for reimbursement for the

state GRT as directed by the agency. Counsel's documentation includes

affidavits from members of the New Mexico bar attesting to the fact that

the tax is customarily charged to the client. Thus, Counsel is entitled

to reimbursement for this tax in the amount of $1,163.84.

A prevailing complainant is entitled to compensation for the work of law

clerks, paralegals, and law students under the supervision of members

of the Bar, at market rates. Missouri v. Jenkins, 491 U.S. 274 (1989).

Counsel admits that the fee charged to him by the paralegal was $25

per hour, but argues that the $50 rate billed for paralegal services is

necessary to cover business costs including his time for supervising

the work of the paralegal. However, Counsel has separately itemized his

hours expended on the case. Thus, the Commission affirms the agency's

reimbursement of $25 per hour for 31.4 hours for paralegal services as

billed by the paralegal.

The AJ may award complainant reasonable attorney's fees, including expert

witness fees, and other costs incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e)(1). In the RD, the AJ found that complainant

should be awarded damages for the emotional harm he suffered as a result

of the agency's discriminatory treatment. The AJ found that complainant

provided sufficient objective evidence to support a claim for compensatory

damages and that the damage award should be based upon that evidence and

any additional evidence that complainant submitted relevant to that issue.

Thus, the Commission finds that the AJ allowed complainant to submit

evidence on his damage claim after the hearing and issuance of the RD on

April 4, 1996. As such, engaging expert witnesses subsequent to that date

was proper. The economist billed for his services, including the $1,000

for Loss of Earnings Capacity, on August 5, 1996. Nothing in the record

indicates when Counsel submitted the invoice but it was submitted sometime

prior to the date of complainant's October 4, 1996 appeal, indicating that

complainant was not waiving his right to reimbursement for that amount.

The agency shall thus reimburse complainant for the expert witness' fees,

including the $1,000 submitted by the economist for a total of $3,190.63.

The AJ found that, in order to make complainant whole, complainant

should be awarded reasonable attorney's fees and costs, including, but

not limited to, costs incurred by complainant for the travel expenses of

his counsel from Albuquerque to Dallas and return, and complainant's costs

for the same travel. The Commission finds that these travel costs should

be reimbursed by the agency whether originally paid for by complainant or

his counsel. Thus, the agency shall pay the total amount of $2,415.40

for these costs.

The Commission finds that numerous long-distance telephone calls

were necessary in representing complainant because complainant

and the witnesses resided in a different state to that of Counsel.

Counsel states that he submitted to the agency detailed records of

long-distance telephone calls incurred in representing complainant.<6>

The agency does not dispute the number of calls or amounts charged.

Counsel appears to have provided sufficient documentation to determine

the amount to be reimbursed, and the Commission finds that complainant

is entitled to that amount.

CONCLUSION

Accordingly, the decision of the agency is AFFIRMED in part, REVERSED

in part, and REMANDED in accordance with the ORDER below.

ORDER

The agency is directed, within sixty (60) calendar days of the date this

decision becomes final, to pay to complainant additional attorney's fees

to cover the New Mexico Gross Receipts Tax ($1,163.84); expert witness

fees as submitted including the additional $1,000 fee for the economist

($3,190.63); and travel costs and long-distance telephone charges as

itemized in Counsel's previous submission ($2,415.40); plus long distance

and intra-state telephone charges as itemized. In addition, the agency

shall compensate complainant's counsel for the reasonable time expended

in pursuing this appeal. Counsel shall provide the agency with all

necessary documentation of time expended on this appeal within twenty

(20) days of the date this decision becomes final. The agency shall

accomplish this action within thirty (30) calendar days of the date the

agency receives the supplemental fee request and documentation.

Proof of payment must be sent to the Compliance Officer, as referenced

below. Further, documentation of the agency's calculation of attorney

fees at the appellate stage also must be submitted by the agency to the

Compliance Officer.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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 (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

August 28, 2000 ____________________________

DATE Carlton M. Hadden, Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________ ____________________________

DATE Equal Opportunity Specialist

1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage

in the administrative process. Consequently, the Commission will

apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations,

as amended, may also be found at the Commission's website at

www.eeoc.gov.

2That matter has been appealed to the Commission and is currently pending

(EEOC Appeal No. 01984618).

3The expert's invoice indicated that $1,583.44 was due.

4The record contains a copy of the invoice dated August 5, 1996. There is

no indication of when Counsel submitted the invoice to the agency.

5Counsel notes that the agency incorrectly totaled the charges submitted

by the economist by not including a charge of $1,000 for a loss of

pleasure of life analysis submitted, plus $83.44 for the New Mexico Gross

Receipts Tax for a total of $1,583.44. He states that the agency failed

to include the Tax for the charge submitted by the rehabilitation expert,

and that the correct total for that charge is $1,607.19. Counsel attached

copies of both expert's invoices.

6The record does not contain a listing of these calls or the amount

incurred.