0120080515
06-24-2010
Karen M. Stance, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Karen M. Stance,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080515
Hearing No. 440-2006-00089X
Agency No. 200J-0578-20051025928
DECISION
On November 9, 2007, Complainant filed an appeal from the Agency's October
24, 2007 final action concerning the attorney's fees award in her equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the
Commission MODIFIES the Agency's final action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a probationary Nurse I assigned to the Surgical Service Line.
Administrative Judge's June 25, 2007 Decision (AJ Decision) at 3.
On August 5, 2005, Complainant filed an EEO complaint wherein she claimed
that she was discriminated against in reprisal for her prior EEO activity
under Title VII. The accepted claims concerned the issuance of an
"Unsatisfactory" proficiency rating for the period of June 1, 2004 -
June 1, 2005, and Complainant's termination on September 16, 2005,
due to unsatisfactory performance.1 Investigative Report at 2.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing and the AJ held a hearing on March 13-14, 2007, and issued a
decision on June 25, 2007.
The AJ found that Complainant was discriminated against on the basis
of reprisal when she received an "Unsatisfactory" proficiency rating
and was subsequently terminated from her position. AJ Decision at 10.
The AJ found that Complainant was entitled to job reinstatement, $25,000
in compensatory damages, back pay, and attorney's fees. Id. at 10-11
In its final action as to the merits of the discrimination claim, the
Agency adopted the AJ's finding of reprisal and the compensatory damages
award in the amount of $25,000. Additionally, the Agency ordered that
Complainant be offered reinstatement to the position of Staff Nurse I,
Level 3, step 10 or a substantially equivalent position and pay grade
within the Chicago commuting area. The Agency further awarded back pay
(less interim earnings), interest, and any and all benefits or training
that Complainant would have earned or received but for the discrimination.
The Agency stated that as a prevailing party, Complainant was also
entitled to claim attorney's fees and costs, subject to the provisions
of the Commission's regulations codified at 29 C.F.R. � 1614.501(e)(2).
Complainant submitted a Petition for Attorney's Fees and Costs wherein she
requested reimbursement for 258 attorney hours and 43 paralegal hours.
Complainant's Petition. Complainant sought $98,925.00 including
a credit in the amount of $7,500.00 to the Agency for attorney's
fees previously paid as a result of Complainant's Motion for Default.
Complainant also requested costs in the amount of $3,902.48. The Agency
submitted a response wherein it challenged several time entries listed
on the attorney's fees itemization. Agency's Response to Petition.
The Agency also challenged 1.80 hours of work performed prior to the
filing of the formal complaint.
In its Final Agency Decision On Attorney's Fees dated October 24,
2007, the Agency noted that Complainant claimed a total of 301 hours
of representation. The Agency excluded 1.7 hours that were rendered
from July 12, 2005, through July 25, 2005, prior to the filing of the
formal complaint.2 The Agency also excluded 1.50 hours of paralegal time
at the rate of $75.00 per hour noting that such work was clerical in
nature and the cost should be borne by Complainant's counsel as normal
operating overhead. Additionally, the Agency excluded .20 hours at the
rate of $400.00 per hour that was billed twice. The Agency stated that
after these exclusions, 297.60 hours remained, and that it considered
this number of hours to be excessive and unreasonable. Thus, it reduced
the remaining hours by 50%. According to the Agency, the reduction was
justified because the complaint involved one issue that did not require
much research. The Agency stated that experienced counsel is not expected
to expend large amounts of time on routine issues and is expected to be
reasonably efficient in terms of preparation time. With regard to time
spent preparing the fee petition and memorandum, the Agency stated that
Complainant's claim for 8.2 hours was unreasonable and instead awarded
attorney's fees for five hours. As for costs, the Agency acknowledged
that Complainant provided documentation of costs incurred in the amount
of $3,902.48 with the exception of two taxi rides totaling $16.00,
but the agency decided to pay the full amount of $3,902.48.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the 50% reduction was inappropriate
given that she was entirely successful in her claim. Complainant
notes that her success clearly does not indicate that the quality of
representation was poor. Further, Complainant states that there is
no evidence that settlement could have been reached earlier but for
her attorney's conduct. Complainant notes that she offered to settle
her claim at an earlier point for a considerable amount less than what
she ultimately received. Complainant maintains that the fact that the
complaint involved a single issue did not make it less complex than other
employment discrimination cases. Complainant notes that her attorney
took the depositions of seven Agency witnesses, all of whom testified at
the hearing. Complainant states that the Agency filed a frivolous Motion
for Summary Judgment with over 100 proposed statements of fact which
required an extensive response. Complainant further states that she had
to file two Motions for Default because the Agency continued to refuse
to produce the requested discovery after the AJ ordered the Agency to
respond to the discovery requests. Complainant explains that the hearing
occurred over a three-day period and that subsequent to the hearing, the
AJ required the filing of post-hearing briefs. According to Complainant,
it is unprecedented to have a 50% fee reduction where the party fully
prevails on the claim. Complainant requests that her petition be granted
in its entirety with the exception of 1.5 hours of paralegal time billed
at $75 an hour for copying depositions, which Complainant's attorney
recognizes was part of normal overhead. Additionally, Complainant's
attorney seeks $3,200 in fees representing eight hours of time enforcing
the final action and drafting the instant appeal.
In response, the Agency asserts that an across-the-board reduction is
required to ensure fair compensation. The Agency maintains that the 50%
reduction in attorney's fees was appropriate based on excessive hours.
According to the Agency, it was unreasonable for an attorney possessing
the experience of Complainant's counsel to spend 297.50 hours on a single
issue case that presented no novel or difficult legal issues. The Agency
asserts that there were activities undertaken by Complainant's attorney
that were unwarranted given the nature of the complaint. The Agency
states that there is no requirement that it award two hours of attorney's
fees for work done prior to the filing of the formal complaint. The
Agency maintains that it should not have to pay any pre-complaint fees.
The Agency argues that it should not be required to pay attorney's fees
for duplicative work and that Complainant's request for fees and costs
associated with the prosecution of the appeal should be denied.
ANALYSIS AND FINDINGS
By federal regulation, 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. EEOC Regulation 29 C.F.R. �
1614.501(e). To determine the proper amount of the fee, a lodestar
amount is reached by calculating the number of hours reasonably expended
by the attorney on the complaint multiplied by a reasonable hourly rate.
Id. at �1614.501(e)(2)(ii)(B). A fee award may be reduced in cases of
limited success and where the quality of representation was poor. Id.
EEOC Regulation 29 C.F.R. � 1614.501(e)(1)(iv) provides in relevant part
that:
Attorney's fees shall be paid for services performed by an attorney after
the filing of a written complaint, provided that the attorney provides
reasonable notice of representation to the agency, administrative judge,
or Commission, except that fees are allowable for a reasonable period
of time prior to the notification of representation for any services
performed in reaching a determination to represent the complainant.
Agencies are not required to pay attorney's fees for services performed
during the pre-complaint process, except that fees are allowable when the
Commission affirms on appeal an administrative judge's decision finding
discrimination after an agency takes final action by not implementing
an administrative judge's decision.
Complainant is a prevailing party in this matter. The Agency
acknowledged in its final action that the hourly rate of $400.00 sought
by Complainant's attorney is the usual and customary rate for employment
discrimination cases in that geographic area. The Agency has challenged
several entries for work performed by Complainant's counsel both prior
to and subsequent to the filing of the formal complaint. There were
1.7 hours of work submitted for work performed prior to the filing
of the complaint during the period of July 12, 2005 - July 25, 2005.
The record reveals that Complainant's attorney agreed to represent her
on July 1, 2005. Report of Investigation, p. 91. Therefore, the work
performed prior to the filing of the formal complaint from July 12,
2005 - July 25, 2005, was not undertaken in reaching a determination to
represent Complainant. We find that the Agency's determination not to
pay attorney's fees for pre-complaint work from July 12, 2005 - July 25,
2005, was proper.
As for the entries submitted for work performed subsequent to the filing
of the formal complaint, the record reveals that this matter involved a
three-day hearing. Among the work hours challenged by the Agency were
various efforts by Complainant to ensure Agency compliance with discovery
orders including the filing of two Motions for Default; 4.5 hours spent
drafting responses to the Agency's 98 proposed statements of fact; seven
hours spent reviewing 25 personnel files that the AJ considered relevant
to the reprisal claim; 8.5 hours spent reviewing the transcript of the
sexual harassment investigation of the official cited by Complainant in
her prior complaint; and three hours for drafting a Motion for Sanctions
and Attorney's Fees, Memorandum in Support, and Affidavit for Fees.
The Agency challenged these entries on various grounds including
unreasonableness with regard to the Motion for Default given that the
parties were working through their discovery disputes; excessiveness
and unreasonableness with regard to the 4.5 hours spent responding to
the Proposed Statement of Facts as many of Complainant's responses were
single word responses; and excessiveness and unreasonableness as to the
Motions for Sanctions and Attorney's Fees as the Agency asserted that the
Motion was unwarranted and filed in response to the Agency's Motion for
Reconsideration, and the Motion was only two pages. As to the 8.50 hours
spent reviewing the transcript of the sexual harassment investigation
in the prior complaint, the Agency states that this amount of time was
excessive and unreasonable given that the matter regarding allegations of
sexual harassment and the investigation were not accepted matters in this
case. With regard to the seven hours spent reviewing the 25 personnel
files, the Agency argues that this was excessive and unreasonable because
most of these nursing employees were not comparisons.
Upon review of the arguments submitted by each party, we find that
Complainant's Petition for Attorney's Fees and Costs is appropriate
in its entirety except for the items listed herein due to the fact
that Complainant was a prevailing party and the reasonable degree of
complexity of the complaint. Therefore, we find that the Agency's 50%
across-the-board reduction in attorney's fees was unwarranted.
The attorney's fees sought by Complainant are not recoverable for the
1.7 hours of work performed during the period of July 12, 2005 - July
25, 2005, the 1.5 hours of paralegal time at $75 per hour spent copying
depositions that Complainant's attorney recognizes was part of office
overhead, and .20 hours of time at the rate of $400 per hour that was
billed twice for drafting a letter to opposing counsel and review of the
file on July 12, 2006. As for the time spent preparing the Fee Petition
and Memorandum, we find that 8.2 hours of work is reasonable and therefore
the attorney's fees award should include that amount of work. See Poquiz
v. Department of Homeland Security, EEOC Appeal No. 0720050095 (April 10,
2008), request for reconsideration denied, EEOC Request No. 0520080524
(June 19, 2008).
Thus, the breakdown in our award of attorney's fees and costs is
$102,440.00 for 256.10 hours of work performed by Complainant's attorney
at the rate of $400 per hour minus the credit of $7,500.00 (already
paid by the agency) for a total of $94,940.00, $3,112.50 for paralegal
time of 41.50 hours at the rate of $75 per hour, and allowable costs of
$3,902.48.
As to the $3,200 in attorney's fees sought by Complainant for work
performed with regard to the enforcement of the final action and the
instant appeal, we find Complainant is a prevailing party in the instant
appeal and Complainant's counsel should prepare and submit to the Agency
a verified statement of attorney's fees accompanied by an affidavit from
the attorney itemizing the charges in accordance with the Attorney's
Fees Order (H0900) herein.
CONCLUSION
The Agency's determination in its final action with regard to attorney's
fees is MODIFIED and the Agency shall comply with the Order herein.
ORDER
Within 30 calendar days from the date this decision becomes final, the
Agency shall pay Complainant reasonable attorney's fees in the amount
of $98,052.50 and costs in the amount of $3,902.48.
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.
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 (K1208)
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 (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 (T0408)
This decision affirms the Agency's final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the Agency issues its final decision on your complaint.
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
June 24, 2010
__________________
Date
1 Complainant amended her complaint subsequent to the initial filing
to include the termination. The complaint also included a claim
concerning being charged absent without leave (AWOL) on two occasions,
but the AWOLs were changed to annual leave and the claim was withdrawn
from consideration. Investigative Report at 6.
2 The Agency allowed .1 hour that was rendered on August 2, 2005, which
it had previously challenged.
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0120080515
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington,
DC 20013
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0120080515