0120072707
09-17-2007
Laurae A. Olison, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Laurae A. Olison,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072707
Hearing No. 320-A1-8129X
Agency No. 200M-0911
DECISION
On May 22, 2007, complainant filed an appeal from the agency's April 26,
2007, final decision on attorney's fees. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
ISSUES PRESENTED
Whether the agency's decision to award complainant attorney's fees and
costs in the amounts of $14,918.60 and $102.60 respectively was in error.
BACKGROUND
Following a hearing held on November 13 and 14, 2002 on complainant's
race, disability, sex and retaliation claims, an EEOC Administrative Judge
(AJ) determined that discrimination had occurred. See Olison v. Dep't
of Veterans Affairs, EEOC Hearing No. 320-A1-8129X (Aug. 11, 2003).
The AJ concluded that as a result complainant was entitled to, among
other things, placement into a GS-6 position; restoration, credit or
reimbursement for 80% of all leave used from February 1999 to November
2001, $75,000.00 in compensatory damages, and $34,277.85 in attorney's
fees and costs. See id.
The agency disagreed in part with the AJ's findings and appealed to our
office the AJ's decision. Specifically, the agency rejected the AJ's
finding of harassment and disparate treatment discrimination on the
bases of race, sex, and disability. With regard to the remedies, the
agency rejected, among other things, the AJ's order to place complainant
in a position above a GS-5; to restore 80% of all the leave she used
from February 1999 to May 1999, and to pay complainant $75,000.00 in
compensatory damages. Complainant, for her part, responded to the
appeal and filed a cross-appeal, asserting that she was entitled to
$100,000.00 in compensatory damages and a promotion to GS-7. We note
that the agency accepted and paid complainant's attorney the $34,277.85
in attorney's fees that the AJ awarded.
In our April 28, 2005 appellate decision, we affirmed the AJ's decision
in its entirety, reversing the agency's final order to the extent that
it had rejected the AJ's decision. We also rejected complainant's
cross-appeal because it had been untimely filed. See Olison v. Dep't of
Veterans Affairs, EEOC Appeal No. 07A40001 (Apr. 28, 2005). Complainant
subsequently filed a request for reconsideration on our denial of
her cross-appeal. Our office denied the request on January 30, 2007.
See Olison v. Dep't of Veterans Affairs, EEOC Request No. 0520050875
(Jan. 30, 2007). Before our decision on the request, complainant's
attorney submitted a fee request to the agency on August 28, 2005 for
the services he rendered on the appeal. Following our decision on the
request, on February 19, 2007, complainant's attorney submitted another
fee statement for services rendered between August 29, 2005 and February
19, 2007. In this petition, complainant's attorney requested a total
of $30,346.501 in fees. This total included services rendered by four
individuals at the law firm (a partner, a junior associate, and two
paralegals), each of whom claimed different billing rates.
As stated above, the agency issued its final decision on attorney's fees
on April 26, 2007. The agency points out that complainant's attorney
requests fees for three different actions: (1) the response to the
agency's appeal, (2) complainant's cross-appeal, and (3) complainant's
request for reconsideration. However, the agency notes that complainant
prevailed only as to the agency's appeal; she did not prevail as to her
cross-appeal or her request for reconsideration. The agency further
points out that complainant's attorney failed to indicate the hour totals
per employee who worked on complainant's case.
Taking these facts into account, the agency arrived at the following
conclusions. It determined that the 2.8 hours billed by the partner
for the period before the AJ's decision (pre-August 11, 2003)2 was
reasonable. The agency further found that the 127.83 hours that
complainant's attorney claimed for the period between August 11, 2003
and April 28, 2005, the date of our appellate decision, was excessive
because although the majority of this time was spent responding to
the appeal and preparing the unsuccessful cross-appeal, the firm had
already spent a considerable amount of time on the case, having argued
before the matter before the AJ. Therefore, the agency found that the
proper course of action was to disallow 50% of the hours requested for
this period and to accept as reasonable 17.5 hours billed by partner,
44.9 hours billed by the junior associate, and 0.5 hours billed by the
paralegal. With regard to the period after April 28, 2005, the agency
again accepted only 1.6 hours of the non-fee preparation time claimed
by the partner as the other claimed hours appear to have been spent on
the unsuccessful request for reconsideration.
With regard to compensation for the time spent of preparing the fee
petition, the agency determined that the 1.0 hour claimed by the partner
for the pre-August 11, 2003 period was reasonable. As for the period
between August 11, 2003 and April 28, 2005, complainant's attorney made
no fee request. For the period following our appellate decision of
April 28, 2005, the agency found the fee request to be excessive and
disproportionate, particularly given the poor quality of the request.
As such, the agency only approved 50% of the time requested - 2.4 hours
for the partner and 4.4 hours for the paralegal.
As for the hourly rates due to the law firm, the agency found the
attorney's rates reasonable. The partner claimed $250 per hour for
services rendered before April 28, 2005 and $300 per hour for services
rendered after April 28, 2005. The junior partner claimed a rate of
$175 per hour for all periods. The paralegal claimed a rate of $75 per
hour for services rendered before April 28, 2005 and $90 per hour for
the work performed after April 28, 2005.
In addition to attorney's fees, complainant's attorney also claimed costs.
The agency notes that although the fee petition contains little or no
explanation, justification or documentation as to the costs, it awarded
the $102.60 requested in light of the protracted processing of the case.
The agency's decision on attorney's fees and costs can be summarized in
the following tables:
Hours Expended Representing Complainant = $13,450.00
* Period before August 11, 2003:
Partner: 2.8 hours at $250/hour = $ 700.00 * Period between August 11,
2003 and April 28, 2005:
Partner: 17.5 hours at $250/hour = $4,375.00 Jr. Assoc 44.9 hours at
$175/hour = $7,857.50 Paralegal 0.5 hour at $75/hour = $ 37.50 *
Period after April 28, 2005:
Partner: 1.6 hours at $300/hour = $ 480.00
Hours Expended Preparing Fee Petition = $1,366
* Period before August 11, 2003:
Partner: 1.0 hour at $250/hour $ 250.00 * Period between August 11,
2003 and April 28, 2005: NONE
* Period after April 28, 2005:
Partner: 2.4 hours at $300/hour $ 720.00 Paralegal: 4.4 hours at
$90/hour $ 396.00
Allowable Costs = $102.60
Total Award = $14,918.60
CONTENTIONS ON APPEAL
Complainant filed no statement in support of appeal although her attorney
requested and was granted an extension of time to submit such a statement.
The agency, for its part, requests that we affirm its final decision.
ANALYSIS AND FINDINGS
Title VII and the Rehabilitation Act authorizes the award of reasonable
attorney's fees, including for an attorney's processing of a compensatory
damages claim. See 29 C.F.R. � 1614.501(e). To establish entitlement
to attorney's fees, complainant must first show that she is a prevailing
party. See Buckhannon Bd. & Care Home Inc. v. West Virginia Dep't of
Health & Human Resources, 532 U.S. 598 (2001). A prevailing party
for this purpose is one who succeeds on any significant issue, and
achieves some of the benefit sought in bringing the action. See Davis
v. Dep't of Transportation, EEOC Request No. 05970101 (Feb. 4, 1999)
(citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)).
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 a "lodestar." See 29 C.F.R. � 1614.501(e)(2)(ii)(B); Bernard
v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998).
In determining the number of hours expended the Commission recognizes
that the attorney "is not required to record in great detail the manner in
which each minute of his time was expended." Id. However, the attorney
does have the burden of identifying the subject matters on which he spent
his time by submitting sufficiently detailed and contemporaneous time
records to ensure that the time spent was accurately recorded. See id.
Further, a reasonable fee award may be assessed in light of factors such
as: (1) the time required (versus time expended) to complete the legal
work; (2) novelty or difficulty of the issues; (3) the requisite skill to
properly handle the case; (4) the degree to which counsel is precluded
from taking other cases; (5) the relief sought and results obtained;
and (6) the nature and length of the attorney-client relationship.
See Cerny v. Dep't of the Army, EEOC Request No. 05930899 (Oct. 19, 1994).
Complainant is only entitled to an award for time reasonably expended.
It does not always follow that the amount of time actually expended is
the amount of time reasonably expended. See Elvin v. Dep't of Labor,
EEOC Request No. 01943425 (Aug. 31, 1995). Rather, "billing judgment"
is an important component in fee setting, and hours that would not be
properly billed to a private client are also not properly billed to the
agency pursuant to a successful EEO claim. See id. Counsel for the
prevailing party should make a "good faith effort to exclude from a fee
request hours that are excessive, redundant or otherwise unnecessary." See
Bernard, EEOC Appeal No. 01966861.
The Commission has held that one method of addressing the appropriate
amount of attorney's fees when a complainant is not completely successful
is to take a percentage across-the-board reduction of compensable
time billed. See Blinick v. Dep't of Housing & Urban Dev., EEOC Appeal
No. 07A20079 (Feb. 3, 2004) (citing McGinnis v. Dep't of Defense, EEOC
Request No. 05920150 (July 15, 1992)). Even if complainant did not
prevail on every aspect of her complaint, that does not, in itself,
justify a reduction in the hours expended where the successful and
unsuccessful claims are closely intertwined. See id. "Claims are
fractionable or unrelated when they involve distinctly different claims
for relief that are based on different facts and legal theories." Id.
Having reviewed the evidence, we find that the agency's decision was fair
and reasonable and as such we affirm the decision in its entirety. As the
agency pointed out, complainant only prevailed as to the agency's appeal.
Complainant did not prevail either on her cross-appeal or on her request
for reconsideration; therefore, she is not entitled under law to fees
or costs with regard to those actions. Moreover, given the initial
finding of discrimination, the agency acted appropriately in reducing
the time billed by 50%. We also note that complainant's attorney has
not presented any arguments in support of his claim for more attorney's
fees despite bearing the burden of proving his entitlement.
CONCLUSION
For the foregoing reasons, the Commission finds no reason to disturb
the agency's final decision and directs the agency to comply with the
Order below.
ORDER
Within thirty (30) days of this decision becoming final, the agency
shall:
1. Pay complainant's attorney $14,918.60 in attorney's fees, and
2. Pay complainant's attorney $102.60 in costs.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (M0701)
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 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 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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 17, 2007
__________________
Date
1 Specifically, complainant's attorney requested $30,449.10 in
attorney's fees and $102.60 in costs.
2 While the AJ's decision included an award of fees for this period
(taken from a fee statement dated June 23, 2003), complainant's attorney
explained that the 2.8 hours stem from hours worked on the case from
June 23 to August 11, 2003.
3 Complainant's attorney claimed 37.00 hours for work performed by the
law firm partner, 89.80 hours for work performed by the junior associate,
and 1.00 hour for paralegal services.
??
??
??
??
2
0120072707
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120072707