0120122662
05-15-2013
Johnny W. Lovett, Jr., Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Johnny W. Lovett, Jr.,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120122662
Agency No. DeCA-00077-2008
DECISION
On April 17, 2012, Complainant, by and through his attorney, filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 16, 2012, denying him attorney fees on an (EEO) complaint in which discrimination was found in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. claim.1 The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Store Manager at the Agency's Redstone Arsenal in Alabama.
In Lovett v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 0120092291 (Nov. 17, 2009), the EEOC found that the Agency violated the Rehabilitation Act when in the summer of 2008 it did not select him for the position of Store Director at the Arnold Air Force Base Commissary in Tennessee. Among other remedies, the EEOC ordered the Agency to pay back pay and conduct a supplemental investigation into Complainant's entitlement to compensatory damages and make a final decision thereon.
Thereafter, to assist with his remedies claim Complainant retained an attorney in December 2009. On remand, the Agency awarded Complainant $13,000 in non-pecuniary damages and $2,000 in pecuniary damages. Complainant, by and through his attorney, filed an appeal. In Lovett v. Department of Defense (Defense Commissary Agency, EEOC Appeal No. 0120102682 (Dec. 20, 2011), the EEOC ordered the Agency, to the extent it had not already done so, to pay Complainant $50,000 in non-pecuniary damages, $3,962 in pecuniary damages, and calculate his loss of future earning capacity during a designated period. It also ordered the Agency to pay attorney fees.
Complainant's attorney submitted a fee petition to the Agency on January 17, 2012. He wrote that he has practiced law since 1970, that his hourly rate in 2009 was $150, and his current hourly rate was $200. The attorney did not consider this to be business litigation, for which he charged a higher hourly rate.
On December 16, 2009, Complainant signed a fee agreement to pay the attorney $150 an hour. In the fee petition, Complainant's attorney wrote that when Complainant retained him he thought the case involved filling out some forms, but it became much more involved, and when he has handled other discrimination cases he has charged a contingent fee of one third of the recovery, plus expenses. The attorney asked the Agency to pay him fees based on a contingent rate of recovery of one third or as a compromise 25%. The fee petition contained an itemized time sheet, showing a total of 24 hours and 40 minutes expended up through December 27, 2011.
In its FAD the Agency denied the fees on the grounds that the fee request did not include an affidavit to support the fee request. The Agency did not challenge the attorney's hourly rate or number of hours requested.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.501(e)(2)(i) provides that in applying for fees and costs, the Complainant's attorney shall submit a verified statement of attorney fees and costs to the Agency or Administrative Judge (as applicable), which shall be accompanied with an affidavit by the attorney itemizing the attorney's charge for legal services.
The starting point for determining attorney fees is multiplying the number of hours reasonably expended by a reasonable hourly rate (known as the lodestar), and there is a strong presumption that this amount represents the reasonable fee. 29 C.F.R. � 1614.501(e)(2)(B).
The best evidence of a reasonable hourly rate is the hourly rate customarily charged by the attorney for fee paying clients. Cooley v. Department of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998). The historical billing rule provides that in order compensate an attorney for the years long delay in receiving payment for services rendered, fees should be charged at the attorney's current billable rate. Hironaka v. United States Postal Service, EEOC Appeal No. 01A14926 (March 29, 2002)., EEOC Appeal No. 01A14926 (March 29, 2002).
On appeal, Complainant submits the missing affidavit required by 29 C.F.R. � 1614.501(e)(2)(i). He expresses exasperation that the Agency did not simply advise him that the affidavit was missing, and instead denied his entire fee petition. He writes that he inquired about the attorney fees issue with the above Agency attorney and she indicated it was out of her hands and before the Commission.
As an initial matter, we find that Complainant's attorney cured his fee petition by submitting the missing affidavit. Applying the above principles to a review of the fee petition, including the historical billing rule, we find that the reasonable hourly rate for the attorney's work was $200. Further, in reviewing itemized billing sheet in the fee petition and record in the underlying case of EEOC Appeal No. 0120102682, we find that that up through December 27, 2011, 24 hours and 40 minutes was a reasonable amount of time to expend on Complainant's case.
The fee petition does not include the time Complainant's attorney expended after December 27, 2011, drafting the fee petition, talking to the Agency's attorney about fees, filing the appeal and making argument regarding his fees, and the time he will expend reviewing this decision. Based upon our review of the documents in the record, we find that 3 hours and 20 minutes to be reasonable.
Accordingly, Complainant's attorney is entitled to attorney fees of $5,600, i.e., $200 an hour for 28 hours of work.
ORDER
The Agency is ordered to take the following remedial action:
Within 30 calendar days after this decision becomes final, the Agency shall pay Complainant's attorney $5,600 in attorney 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 verifying that the corrective action has been implemented.
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 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 (M0610)
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 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 (S0610)
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 (Z0610)
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
May 15, 2013
__________________
Date
1 While the Agency attorney representative who issued the April 16, 2012 letter denying attorney fees characterized it therein as a FAD, it was not issued by an impartial Agency official and did not contain appeal rights to the Commission, as required. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 1.III at 1-2 (Nov. 9, 1999); 29 C.F.R. � 1614.501(e)(2)(ii)(A).
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0120122662
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122662