0120063627
02-08-2007
Glenda Wynn, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Glenda Wynn,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01200636271
Agency No. TD 02-1207
DECISION
Complainant filed an appeal from the agency's final decision relating
to her equal employment opportunity (EEO) complaint claiming 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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405(a).
During the relevant time, complainant was employed as a Bankruptcy
Specialist, GS-1101-09, at the agency's Small Business/Self-Employed
Division in Atlanta, Georgia. Complainant's attorney filed a formal
complaint on complainant's behalf on June 18, 2002, claiming that
complainant was the victim of unlawful employment discrimination on the
bases of race, disability and in reprisal for prior EEO activity when
management denied her request to work flexiplace three days per week.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The record reflects that the EEOC Atlanta District Office
received complainant's request for a hearing on January 14, 2003.
On January 21, 2003, the agency was ordered to produce complainant's file
within fifteen days or explain why it could not do so. Without receiving
a response from the agency, the AJ assigned to the case issued a February
5, 2003 Notice and Order to Show Cause for the agency to respond within
fifteen days regarding why it should not be sanctioned for its failure to
produce the complaint file or Report of Investigation (ROI). The Order
stated that sanctions, including a decision in complainant's favor,
could be issued if good cause was not shown. When the agency did not
respond, the AJ issued a decision on March 13, 2003, in complainant's
favor as a sanction for the agency's failure to obey the two orders
to produce the complaint file and ROI. The AJ scheduled a hearing to
determine relief on April 9, 2003, which was rescheduled to July 2, 2003.
Complainant's attorney did not appear at the July 2, 2003 hearing, but
instead submitted a "List of Harm." Complainant was the sole witness
at the hearing on relief. The AJ issued a bench decision awarding
complainant $1,000.00 in compensatory damages. The AJ found complainant
was not entitled to back pay or front pay and did not award attorney's
fees. The AJ's decision was mailed to the parties on August 27, 2003.
On October 14, 2003, the agency issued a final order implementing the AJ's
decision on compensatory damages. On appeal, the Commission affirmed the
agency's final order concerning compensatory damages. The Commission,
however, modified the agency's final order concerning attorney's fees
and other relief. On remand, the agency was ordered to pay complainant
$1,000.00 for compensatory damages; restore all leave used by complainant
as a result of its denial of her request for reasonable accommodation;
reimburse complainant for all Leave Without Pay taken by complainant as
a result of its denial of her request for a reasonable accommodation;
provide complainant an opportunity to submit a verified statement of
attorney's fees and costs, and issue a decision on attorney's fees;
post a copy of posting order in its facility; and provide appropriate
EEO training to all agency officials responsible for the discriminatory
action in the instant matter. Wynn v. Department of the Treasury,
EEOC Appeal No. 01A40791 (March 28, 2005).
On April 28, 2006, the agency issued the instant final decision on the
issue of attorney's fees. The agency stated that on May 14 and 23, 2005,
complainant's attorney submitted two affidavits concerning attorney's
fees and costs. The agency stated that in his May 14, 2005 affidavit,
the attorney stated that he had represented complainant in her formal
complaint since June 1, 2002, and that he was admitted to practice law
in all courts of the State of Mississippi. The agency stated that in his
May 23, 2005 affidavit, the attorney requested $4,225.12 for 32.99 hours
of work on complainant's case from May 25, 2002 to November 10, 2003.
The agency stated that the attorney claimed that his hourly rate was
$125.00 per hour, less than half of the usual and prevailing rate for
such representation by licensed attorneys in the metropolitan Atlanta,
Georgia area.
In its final decision on the fee request, the agency found that
complainant's attorney's hourly rate of $125.00 was reasonable.
The agency, however, determined that the Mississippi Bar Association
Directory indicated that complainant's attorney was admitted to the bar
on August 12, 1968, but that he is currently in an "inactive" status,
a status he held while representing complainant. Therefore, the agency
concluded that he was not entitled to collect on his claim for attorney's
fees and costs. In the alternative, assuming complainant's attorney
could collect attorney's fees, the agency determined that the fees to
be awarded should be reduced by $228.75 [March 4, 2005 ($125.00), March
5, 2005 ($31.25) March 18, 2005 ($31.25) and March 20, 2005 ($41.25)]
because this amount represented work charged that was unrelated to
the instant EEO complaint, but rather was incurred while working on
complainant's bankruptcy case.
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). 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). Complainant is only entitled to an award for time
reasonably expended. It does not always follow that the amount actually
expended is the amount of time reasonably expended. Elvin v. Department
of Labor, EEOC Request No. 01943425 (August 31, 1995). 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.
In the instant case, we are unpersuaded by the agency's argument that
complainant was not entitled to recover attorney's fees based on his
status as an "inactive" member of the Mississippi Bar Association.
There is a strong presumption of entitlement to attorney's fees for the
party prevailing in an EEO case. The agency has provided no support for
the proposition that bar status (active or inactive) has an effect on
entitlement to attorney's fees. We find, after a review of the record,
it is undisputed that complainant's attorney is a member in good standing
of the Mississippi bar. Moreover, the agency's argument in this regard
is somewhat disingenuous as it conceded in its brief that he was employed
by the agency for 30 years practicing law as an "Attorney (Estate Tax)"
in inactive bar status, which was fully allowable by the agency.
Regarding the issue of the fee amount, we note that the agency does
not dispute the hourly rate charged by complainant's attorney ($125.00
per hour). A review of the record reflects that complainant's attorney
requested compensation for a total of 32.99 hours of work at $125/hour,
for a total of $4,225.12. We grant, however, the agency's request of a
reduction of $228.75 charged for services more related to complainant's
bankruptcy action than the instant EEO complaint. Therefore, we find
that complainant is entitled to $3,996.37 in attorney's fees.
For the reasons set forth above, we REVERSE the agency's final order
denying complainant's request to recover attorney's fees and costs and
award complainant $3,996.37 in attorney's fees. We REMAND this case
to the agency to undertake these remedial measures as set forth in the
ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall pay complainant the amount of $3,996.37 in
attorney's fees.
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 of the
agency's payment of the attorney's fees.
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 (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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 8, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120063627
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063627
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