0720080013
11-24-2009
John O'Malley, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (U.S. Marshals Service), Agency.
John O'Malley,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(U.S. Marshals Service),
Agency.
Appeal No. 0720080013
Hearing No. 510-2007-00100X
Agency No. M060040
DECISION
Following its November 8, 2007 final order,1 the agency filed a
timely appeal which the Commission accepts pursuant to 29 C.F.R. �
1614.405(a). On appeal, the agency requests that the Commission affirm
its acceptance of an EEOC Administrative Judge's (AJ) partial finding
of discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and
its modification of the award of remedies. Complainant cross-appeals,
requesting an increased amount of attorney fees and costs. For the
following reasons, the Commission MODIFIES the agency's final order.
ISSUE PRESENTED
Whether the AJ properly ordered attorney fees and costs, and training
for agency officials.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Marshal/Criminal Investigator in Miami, Florida. On May 23, 2006,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of disability (diabetes) and reprisal for prior
protected EEO activity [under the Rehabilitation Act] when:
(1) since March 2004 he has been placed on light duty status;
(2) he was required to undergo a fitness for duty examination;
(3) the agency disclosed medical documentation to individuals without
a need to know;
(4) the agency required him to submit unnecessary medical
documentation; and
(5) the agency made repeated threats of termination to him.
In addition, complainant alleged that he was discriminated against
and/or subjected to a hostile work environment based upon disability
and/or prior EEO activity, when:
(6) he was informed by letter dated April 6, 2006 that he was
medically disqualified and would be forced to resign or retire;
(7) the agency delayed nine months in responding to his appeal;
(8) on February 1, 2007 the agency found him medically unqualified;
and
(9) on February 7, 2007 the agency removed his badge, gun and radio.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Both parties filed Motions for a Decision Without
a Hearing. After holding a hearing solely on the issue of damages on
June 25, 2007, the AJ issued a decision without a hearing on September
28, 2007, finding disability-based discrimination as to issues (6) -
(9), and no retaliation and/or disability-based discrimination as to
the remaining issues. The AJ then ordered the agency to take remedial
action, including providing attorneys' fees and requiring EEO training
for three agency officials. The agency subsequently issued a final
order accepting the AJ's finding that complainant proved that he was
subjected to disability-based discrimination as to issues (6) - (9),
and rejecting only the AJ's order that two particular agency officials
be required to undergo EEO training.
CONTENTIONS ON APPEAL
On appeal, the agency's sole contention is that two of the management
officials (the U.S. Marshal and Chief Deputy U.S. Marshal) should not
have been ordered to undergo EEO training. The agency explains that
"the training ordered for these two individuals amounts to improper
punishment for these individuals who had very little to do with the
alleged discriminatory actions by others, and were empathetic to and
supportive of Complainant's situation." The agency further states on
appeal:
Both [the] U.S. Marshal and Chief Deputy U.S. Marshal... were involved
in the retention of complainant's badge, weapon, and Government-issued
vehicle. However, these actions were taken as a result of their receipt
of a final medical determination that Complainant was not medically
[qualified] and that he either had to be reassigned to a non-law
enforcement position or otherwise separated from the USMS [U.S. Marshal
Service]. Their actions were ministerial in nature and obligatory.
In fact, [the] U.S. Marshal and Chief Deputy ... were supportive of
Complainant and did what they could within their authority to aid him.
In reply, complainant points out that the AJ found the agency's removal
of complainant's badge, radio and gun to be discriminatory, and the
agency admits that the U.S. Marshal and Chief Deputy were involved in
these events. Complainant notes that the agency has not appealed the
finding of discrimination on this or any other finding of discrimination.
Complainant asserts that as a result, the agency should be precluded from
arguing that neither the U.S. Marshal nor the Chief Deputy qualifies as a
responsible management official. Complainant asserts that both officials
were properly ordered to attend EEO/Rehabilitation Act training.
In his Cross-Appeal, complainant contends that he ought to have been
awarded more attorney fees. Complainant was awarded $71,750.96 in
attorneys' fees and costs in the AJ's Amended Order, which the agency
accepted and agreed to implement, but in the instant appeal complainant
seeks an additional $65,835.12. Complainant asserts that the AJ's
reductions of fees were unwarranted.
In reply, the agency urges the Commission to affirm the AJ's attorney
fee award. The agency contends that legal team "overlitigated a
non-complex case, filed excessive, mostly unsuccessful, and frivolous
motions, and now seeks more fees for their self-generated efforts."
Among other things, the agency specifically disputes that complainant's
counsel deserves to be compensated at a rate of $455.00 per hour based
on his expertise and the complexity of the case. The agency asserts
that the AJ was generous in awarding complainant more than $71,000.00
in attorneys' fees for a case that was resolved on summary judgment.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . ."); see
also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed
de novo"). This essentially means that we should look at this case
with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
Training
Initially, we address the AJ's Order that the U.S. Marshal for the
southern District of Florida and the Chief Deputy U.S. Marshall
attend EEO training.2 The Commission does not consider training to
be disciplinary action. Regardless of these particular officials'
supposed low level of involvement in the discrimination actions,
all agency officials can only benefit from attending EEO training,
and it was not an abuse of the AJ's discretion to order training for
these individuals. Administrative Judges have broad discretion in
the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110)
at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department of
the Navy, EEOC Request No. 05980746 (September 19, 2000). Accordingly,
we REVERSE that part of the agency's final order that rejected the AJ's
order that these two individuals should attend EEO training.
Attorney Fees
The agency is required to award attorney's fees for the successful
processing of an EEO complaint in accordance with existing case law
and regulatory standards. 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 the "lodestar." See 29 C.F.R. �
1614.501(e)(2)(ii)(B); Bernard, EEOC Appeal No. 01966861 (citing Blum
v. Stenson, 465 U.S. 886 (1984)).
Attorney's fees may not be recovered for work on unsuccessful
claims. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Courts
have held that fee applicants should exclude time expended on "truly
fractionable" claims or issues on which they did not prevail. See Nat'l
Ass'n of Concerned Veterans v. Sec'y of Defense, 675 F.2d 1319, 1327 n.13
(D.C. Cir. 1982). Claims are fractionable or unrelated when they involve
"distinctly different claims for relief that are based on different
facts and legal theories." Hensley, 461 U.S. at 434-35.
Initially, we note that complainant asserts that although the AJ denied
receiving any documentation relating to his request for costs associated
with the case, and therefore, awarded none, the AJ was provided with
such documentation. Complainant provides what he deems to be proof of
delivery of such documents to both the AJ and to the agency.3 Complainant
asserts that he is therefore, owed $10,507.86 in reasonable costs incurred
in litigating this complaint.
The agency contends that complainant's counsel failed to submit any
documentation in support of costs at the time he submitted his fee
petition. Moreover, the agency states counsel failed to provide the AJ
or the agency with any explanation as to why supporting documentation
was not submitted at the time of the fee petition. The agency asserts
that without adequate documentation, it was virtually impossible to
determine the reasonableness of the expenses claimed and whether they
even related to the case. The agency states that it was not until after
the agency filed its response to the fee petition, raising this specific
objection, that counsel created post hoc reasoning for his failure to
submit documentation. The agency notes that counsel simply called it
an "oversight," but regardless of whether counsel ultimately submitted
documentation prior to the issuance of the AJ's decision, it was not an
abuse of discretion for the AJ not to award costs. The Commission is
not persuaded that complainant's counsel in fact submitted to the AJ a
claim for costs, with his fee petition. Accordingly, we find no error
in the AJ's decision to deny the requested costs.
Next, we address the AJ's decision to award a lesser amount of attorney's
fees, based on such factors as redundancy, unsuccessful and frivolous
motions, using the prevailing rate of lawyer's fees for the wrong city,
and charging too high an hourly rate for junior attorneys/paralegals.
The AJ noted the following as to complainant's attorney fee petition:
"I find that the amount of fees requested by the complainant is
excessive. The complainant's counsel had multiple attorneys and
paralegals working on this case. Of course, this is not improper in and
of itself. However, not only do I find the hourly rates charged to be
excessive, but many of the requests are duplicative, excessive, vague,
and/or inadequately documented or explained in the fee petition."
In addition, the AJ noted that complainant feels he should receive the
prevailing market rate in Washington, D.C, not the prevailing rate in
Miami, Florida, the city in which the discrimination took place and where
the subject agency facility is located. The AJ found that the Miami rate
should be used, and therefore, reduced the attorney fee award by 25%.
In addition, the AJ noted that complainant's counsel contends that this
case was complex and that he has exceptional skills for such a case,
however the AJ found that "this case was not a factually or legally
complicated one. If anything, it was made more complicated by the
extraordinary number of motions filed by the complainant (virtually all
of which were denied) as well as a number of claims that were untimely
and/or had no legal validity."
After careful review, the Commission finds that the award of attorney
fees was not an abuse of discretion, and is supported by this record.
We agree that an award of over $70,000.00 is more than adequate in a case
that is relatively straightforward, and that did not proceed to trial
(except for on the issue of damages).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the final
order's partial rejection of that part of the final order that directed
the agency to train two officials. Otherwise, we AFFIRM the remainder
of the final order, including attorney fees in the amount of $71,750.96.
We further direct the agency to comply with the Order below.
ORDER
Within sixty (60) days of this decision becoming final, and to the
extent that it has not already done so, the agency is ordered to take
the following remedial action:
(1) The agency shall award non-pecuniary compensatory damages in
the amount of $50,000.00;
(2) The agency shall award complainant $315.00 for the loss of use
of his government vehicle;
(3) The agency shall retrieve complainant's pay records for
the eighteen months prior to his placement on fight duty in 2004,
and calculate the total amount of overtime worked for that period.
The agency shall award complainant that amount as lost overtime;
(4) The agency shall conduct training for the Employee Medical Programs
Manager, the U.S. Marshal for the Southern District of Florida
and the Chief Deputy U.S. Marshal. The training shall detail their
responsibilities and required sensitivity under the Rehabilitation
Act and EEOC regulations with respect to eliminating discrimination
in the Federal workplace, and specifically with respect to preventing
discrimination against individuals with disabilities and individuals
who are perceived as having disabilities;
(5) The agency shall not utilize the same reviewing physician again
for future medical examinations of, or review of medical records, for
complainant;
(6) The agency shall provide training as described in this paragraph
for the reviewing physician. Although the reviewing physician is not
an employee of the agency, the agency shall require that such training
be mandatory for anyone contracted by the Marshal's Service, Southern
District of Florida to conduct these types of medical evaluations as
were at issue in this case;
(7) Complainant shall be returned to his prior position as a Deputy
U.S. Marshal on full duty in the Warrants Division;
(8) The agency shall reimburse complainant for $71,750.96 in attorney's
fees;
(9) The agency shall restore 100 hours of sick leave to complainant's
leave balance;
(10) The agency shall provide complainant with four training courses
relevant to his position as a Deputy U.S. Marshal in the Warrants
Division. These shall be provided within the next eighteen months; and
(11) The agency shall provide complainant with priority consideration
for the next four special assignments within his Division.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its United States Marshal's Service,
Miami, Florida, copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
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 (K0408)
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 (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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
_______11/24/09___________
Date
1 The agency subsequently issued an amended final order on November 26,
2007, after the AJ issued a revised Decision on November 11, 2007, due
to having made a mathematical error in the original decision concerning
attorney fees.
2 One other individual, the Employee Medical Programs Manager, was also
ordered by the AJ to attend EEO training, however, the agency does not
challenge that Order.
3 What complainant deems to be proof of delivery are copies of emails
in which there is confirmation that a "fee petition" was sent to the
agency and to the AJ in August 2007.
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0720080013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
10
0720080013