James E. Carney, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 11, 2000
01970674 (E.E.O.C. Feb. 11, 2000)

01970674

02-11-2000

James E. Carney, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


James E. Carney v. Department of Veterans Affairs

01970674

February 11, 2000

James E. Carney, )

Complainant, )

)

v. ) Appeal No. 01970674

) Agency No. 92-1732, 1928

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision (FAD),

dated October 22, 1996, regarding an award of attorney's fees.<1> This

appeal is accepted by the Commission in accordance with the provisions

of EEOC order No. 960.001.

BACKGROUND

The record reveals that during the relevant time period, complainant was

employed by the agency as a Housekeeping Aid at the agency's Medical

Center in Buffalo, New York. He was terminated from that position in

May 1986. Although he was eventually rehired by the agency, complainant

challenged the validity of his termination in a variety of fora, including

the United States District Court for the Western District of New York.<2>

None of these efforts was successful.

On March 18, 1992, complainant filed a formal EEO complaint with the

agency (Agency No. 92-1732) alleging that he had been discriminated

against on the basis of physical and mental disability (post traumatic

stress disorder, chronic otitis media of the right ear and alcoholism)

and reprisal when the agency removed him from his position in 1986

and reneged on a promise to restore him pursuant to a 1987 agreement.

At the time of the filing of this complaint, the agency was informed

that complainant was represented by counsel to whom we will refer as

Attorney A.

On April 24, 1992, complainant filed a second EEO complaint(Agency

No. 92-1928) alleging that he had been discriminated against on the

basis of his disabilities when, on February 24 and 25, 1992, the agency

failed to accommodate his disabilities when it assigned him to work in

the pharmacy area of the medical center.

The agency accepted the complaints and conducted an investigation.

Following the investigation, complainant requested a hearing before an

EEOC Administrative Judge (AJ). On November 3 and 4, 1993, a hearing

was held at which issues raised in both of complainant's EEO complaints

were addressed. At the hearing, complainant was represented by substitute

counsel to whom we will refer as Attorney B.<3>

Following the hearing, the AJ issued a Recommended Decision. In Case

No. 92-1732 the AJ found that the agency had discriminated against

complainant on the basis of disability when it terminated his employment.

In Case No. 92-1928, the AJ found that the agency had not discriminated

against complainant on the basis of disability when it assigned him to

work in the pharmacy area of the medical center. Thereafter, the agency

issued a final decision dated February 23, 1994, finding no discrimination

with regard to both complaints.

Complainant appealed the FAD to the Commission. We affirmed the FAD

in Case No. 92-1928, regarding discrimination in job assignment but

reversed in Case No. 92-1732, finding that complainant's termination

had been discriminatory.<4> We also held that "[i]f [complainant] has

been represented by an attorney . . . he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint."

On September 25, 1996, Attorney B submitted to the agency a verified

statement of fees covering the period May 3, 1991 to September 15, 1995,

requesting compensation for 101 hours of work at the rate of $150 per

hour for total award of $15,150.00. The agency's final decision found

Attorney B to be entitled to compensation for 27 hours, compensated

at the rate of $150 per hour, totaling $4050.00. The agency refused

compensation for all hours worked prior to the date of the November 3,

1993 hearing on the ground that, prior to that date, the agency had

been unaware that complainant was being represented by Attorney B.

In addition, the agency refused compensation for 50% of the remaining

hours on the theory that, because complainant had prevailed on only one

of his two complaints, he was entitled to be reimbursed for only half

of the hours worked by his attorney. From the FAD on attorney's fees,

complainant brings this appeal.

ANALYSIS AND FINDINGS

Under our regulations an agency is obliged to award attorney's fees

and costs for the successful processing of an EEO complaint in the

administrative process. See 64 Fed. Reg. 37,644, 37,659-60 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.501(e).

The agency is not liable for reimbursement of attorney's fees incurred

prior to notification to the agency that the complainant is represented

by an attorney. 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.501(e)(1)(iv).

The amount of the fee to be awarded is normally determined by multiplying

the number of hours reasonably expended by a reasonable hourly rate.

Hensley v. Eckerhart, 461 U.S. 424 (1983); 64 Fed. Reg. 37,644, 37,660

(1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.501(e)(2)(ii)(B). 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, 892 (D.C. Cir. 1980).

In the instant matter, the agency has not disputed reasonableness of

the $150 hourly rate charged by Attorney B. Only the number of hours

expended is at issue.

Services Rendered Prior To September 8, 1993

The agency also refused compensation for all legal services performed

by Attorney B prior to September 8, 1993. The agency's reason for this

refusal is that the agency had not been notified prior to that date that

Attorney B was representing complainant. Under � 1614.501(e)(1)(iv),

an agency cannot be held liable for reimbursement of attorney's fees,

unless it can be shown that, prior to the fees being incurred, the agency

was notified that complainant would be represented by an attorney."

The Commission has construed this regulation to require that any successor

counsel be individually identified to the agency before reimbursable

fees are incurred by that attorney. See Erickson v. Army, EEOC Appeal

No. 01944011 (March 12, 1996). Here, the agency was unaware of Attorney

B's representation of complainant prior to September 8, 1993. Thus the

agency properly disallowed all fees claimed for services performed by

Attorney B prior to that date.<5>

Services Rendered In Connection With Unsuccessful Complaint

The agency also disallowed one-half of the hours for which reimbursement

is sought on the ground that complainant prevailed on only one of the

two claims presented to the AJ. We hold that, although some portion of

the claimed hours can properly be disallowed on this basis, the agency's

disallowance of 50% of the hours claimed is excessive. Our review of

the record indicates that the bulk of the work performed was related

wholly or partially to counsel's representation in Case No. 92-1732,

in which complainant ultimately prevailed. The only services performed

which were related solely to Case No. 92-1928 were the examinations of

certain witnesses at the hearing before the AJ on November 3-4, 1993.

It is apparent that this activity occupied no more than one-half of the

hearing. Accordingly, we hold that the agency properly disallowed as

unrelated to the successful claim 6.5 hours performed on November 3-4,

1993 but that the agency erred in disallowing any additional hours on

that ground.

SUMMARY

In summary, we find that complainant is entitled to be reimbursed for 47.5

hours of attorney time, which represents all legal services performed on

and after September 8, 1993, with the exception of 6.5 hours performed

on November 3-4, 1993. The rate of compensation is $150.00 per hour.

The total amount of the award to which complainant is entitled is

$7125.00.

CONCLUSION

Accordingly, it is the decision of the Commission to MODIFY the final

agency decision and to award complainant attorney's fees as discussed

in this opinion and as set forth in the ORDER below.

ORDER

The agency is ordered to pay complainant, within thirty (30) calendar

days of the date this decision becomes final, attorney's fees reflecting

payment for 47.5 hours at a rate of $150/hour for a total of $7125.00

(minus any amount already paid). The agency is further ordered to

submit a report of compliance, as referenced below. The report shall

include supporting documentation to verify that the action has been

fully implemented.

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 (M1199)

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 (3O) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (2O) 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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

2/11/00

Date Carlton M. Hadden, Acting 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

2/11/00

Date __________________________

Equal Employment Assistant

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.

2The procedural history of this matter is set out in greater detail

in Carney v. Department of Veterans Affairs, EEOC Appeal No. 01924532

(January 26, 1993) and Carney v. Department of Veterans Affairs, EEOC

Appeal No. 01942391 (August 22, 1996).

3The record indicates that complainant was represented simultaneously

by Attorneys A and B.

4 Carney v. Department of Veterans Affairs, EEOC Appeal No. 01942391

(August 22, 1996).

5In light of our finding on this point, we need not address the agency's

argument that fees incurred prior to the March 18, 1992 filing of the

formal EEO complaint are not reimbursable.