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.