Jamie K.,1 Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Nov 23, 2016

0120140785 (E.E.O.C. Nov. 23, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jamie K.,1
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120140785

Agency No. OIG-2006-02653

DECISION

On November 12, 2013, Complainant filed an appeal when the Agency failed to issue a final
decision on his request for attorney’s fees and costs. For the following reasons, the
Commission finds in favor of Complainant.

BACKGROUND

Complainant filed an EEO complaint in 2006, in which he alleged that he had been
discriminated against on the bases of his race (African-American) and in reprisal for his prior
protected EEO activity when he was awarded a “Fully Successful” performance rating. The
Agency issued a final decision finding no discrimination, and Complainant appealed to the
Commission. In 2010, we reversed, finding that Complainant had been the victim of reprisal,
and, among other things, ordered the Agency to award Complainant attorney’s fees and costs.
See EEOC Appeal Nos. 0120064535 & 0120091986 (Apr. 23, 2010).

Complainant submitted a petition for attorney’s fees and costs in the amount of $29,669.95.
That amount included the fees incurred by Complainant’s attorney preparing the petition.
After deducting for travel time and a duplicate billing entry, the Agency awarded and paid
Complainant $22,289.15. The difference (leaving aside the travel and duplicate time, which

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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were not appealed) was based upon the Laffey matrix2 hourly rate used by Complainant in his
lodestar calculation. Complainant’s attorney used the Laffey rate in effect in 2010, when the
petition was submitted, rather than the rate in effect in 2006-2007, when the work was actually
performed. The difference was $5,219. Complainant appealed the attorney’s fee award to the
Commission. On July 19, 2013, in EEOC Appeal No. 0120112135, we held that the market
rates used in the calculation of attorney’s fees are the current market rates when the fee petition
is filed and not the historic market rates at the time the work was performed. We ordered the
Agency to pay the $5,219 difference sought by Complainant.

On July 24, 2013, Complainant’s attorney wrote to the Agency’s Director, Office of
Adjudication, regarding our July 19, 2013 decision. In the letter, Complainant noted that in
addition to the attorney’s fees awarded by the Commission for the work done prior to August
27, 2010 (the date of Complainant’s petition for fees arising from the earlier decision),
Complainant was entitled to the attorney’s fees he incurred in successfully appealing the
Agency’s attorney’s fee award decision.

Complainant’s petition for fees included an affidavit by his attorney, an itemized fee statement,
and the most recent Laffey matrix, which identified the rates in 2013 (when the petition was
prepared). The itemized time entries were for 2011 (when the appeal was prepared) and 2013,
and the rates that were applied in the petition for all of the time expended were those
applicable in 2013, when the petition was prepared. In the supplemental petition for attorney’s
fees, Complainant claimed $4,928.50 for fees incurred preparing the earlier appeal and the
instant petition for fees, and $169.23 in costs, for a total of $5,097.73. The petition was
served on the Agency by e-mail on July 24, 2013. Complainant received no response to the
petition for attorney’s fees, though he did receive the $5,219 ordered by the Commission.

On August 20, 2013, Complainant sent another e-mail to the Agency stating that he had sent a
petition to them on July 24, 2013, that he had received no response, and that he was re-sending
the letter and attachments. In the e-mail, Complainant noted that if he did not receive a
response he would have to take the necessary steps to preserve his rights. On August 20,
2013, Complainant received notice that the Agency received the e-mail. To date, the Agency
has not replied to either the July 24 or the August 20 petitions for attorney’s fees.
Complainant filed the instant appeal.

2 The Laffey matrix, which has its origins in the case of Laffey v. Northwest Airlines Inc., 572
F. Supp. 354 (D.D.C. 1983), reversed in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984),
is a chart compiled yearly by the United States Attorney's Office in the District of Columbia. It
provides a schedule of hourly rates prevailing in the Washington, D.C., area in each year,
going back to 1981, for attorneys at various levels of experience. Piper v. U.S. Dep’t of
Justice, 339 F. Supp. 2d 13, 24 n. 8 (D.D.C. 2004); see also Ela O. v. Nat’l. Sec. Agency,
EEOC Appeal No. 0720130021 (Oct. 30, 2015).
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ANALYSIS AND FINDINGS

It is well-settled that Complainant is entitled to the attorney’s fees and costs that he incurred
during the successful prosecution of the previous appeal. See, e.g., Stance v. Veterans
Affairs, EEOC Appeal 0120080515 (June 24, 2010); Mohr v. Veterans Affairs, EEOC Appeal
0720050057 (Feb. 23, 2007). In the petition served on the Agency by e-mail on July 24, 2013,
and August 20, 2013, Complainant claimed $4,928.50 for fees incurred preparing the earlier
appeal and the instant petition for fees, and $169.23 in costs, for a total of $5,097.73. We find
that the Agency erred in not awarding Complainant the attorney’s fees he incurred in
successfully appealing the Agency’s initial attorney’s fee award decision in EEOC Appeal No
0120112135 (July 19, 2013).

Because Complainant is again successful in obtaining attorney's fees and costs in the instant
appeal, he may submit another fee petition to the Agency for the costs incurred during this
current appeal, if he has not done so already. The Agency is advised to promptly respond to
Complainant’s petition.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein and in the absence of any contentions from the Agency, we award
Complainant the attorney’s fees and costs incurred during the appeal process, as detailed
herein.

ORDER

The Agency is ordered to pay Complainant $5,097.73 in outstanding attorney’s fees and costs,
in addition to the fees incurred related to the current appeal, which have not been specified in
the record.

ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he 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 the date this decision was issued. 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 (K0610)

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
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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 (M0416)

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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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.

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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 (R0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 23, 2016
Date