0120141533
08-24-2016
Leonarda S.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leonarda S.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141533
Hearing No. 551-2011-00033X
Agency No. 200P-0648-2010103005
DECISION
On April 7, 2014, Complainant filed an appeal from the Agency's March 7, 2014, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.2 For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether the Administrative Judge (AJ) erred as a matter of law or abused his discretion when he did not award the full amount requested in attorney's fees.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clinical Pharmacy Specialist at the Agency's Veterans Affairs (VA) Hospital in Portland, Oregon. The Agency provided Complainant with an accommodation in the form of computer-aided-real-time translation (CART) services during meetings. In the spring of 2010, Complainant's second line supervisor (S1) stated that Complainant did not need the CART service for small meetings, and stopped providing her with transcripts of meetings. Complainant transferred to a VA facility in Texas on May 21, 2010.
On June 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (hearing impaired/profound deafness) when it subjected her to a hostile work environment, and when it failed to accommodate her with translation services from March until May 2010. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing; the AJ held a hearing; and the AJ issued a decision on January 28, 2014.
In his decision, the AJ found that the Agency discriminated against Complainant on the basis of disability when it failed to accommodate her by refusing to provide printouts of the captioning between April 15 and May 21, 2010; it subjected her to a hostile work environment from March through May 2010; and when it failed to engage in the interactive accommodation process, in violation of the Rehabilitation Act. With regards to the finding of a hostile work environment, the AJ found that S1's statement that the CART service was optional, and unnecessary in small meetings, was stated to harass her because it would reasonably create apprehension. The AJ found that this statement caused Complainant to feel isolated, in the dark, and fearful of her job and career. Additionally, the AJ found that denying Complainant copies of the transcripts was also harassment.
The AJ awarded the following remedies:
1. Attorney's fees;
2. $12,500 in non-pecuniary compensatory damages;
3. The Agency shall ensure that other deaf or hearing impaired employees are not subject to the same, or similar acts of disability discrimination;
4. EEO training to S1; and
5. Posting a notice of a finding of discrimination at its Vancouver and Portland, Oregon facilities.
On May 20, 2013, the Agency issued a final order adopting the AJ's findings, and fully implementing the relief. Following the AJ's decision, Complainant submitted a claim for attorney's fees for 97.7 hours at $475 per hour, and $2,357.39 in costs, for a total of $44,014.89.
On January 28, 2014, the AJ issued a decision on the attorney's fees and costs, awarding a total of $25,607.39. In regards to the hourly rate, Complainant's attorney provided data from a trade magazine showing that the hourly rate for equity partners at large law firms in the Dallas-Fort Worth area was $463 per hour. The Agency argued that Complainant's attorney was not an equity partner at a large law firm, but rather a solo practitioner, and that the going rate for experienced employment attorneys in the area was between $231 and $290 per hour, and suggested an hourly rate of $259. The AJ awarded an hourly rate of $300 per hour based upon the exhibits provided by both parties.
For the number of hours claimed, the AJ reduced the hourly rate for travel by 50%. Additionally, the AJ overruled six of the seven Agency objections to the hours claimed, finding them to be reasonable. The AJ only sustained one objection, finding that the 13.6 hours claimed for the attorneys' fees statement was unreasonable, and reduced it by 5.6 hours, for a total of eight hours. The AJ awarded the following for attorney's fees and costs:
1. 70.4 hours at $300/hour = $21,120.00
2. 14.2 hours of travel time at $150/hour = $2,130.00
3. Costs of $2,357.39
The Agency subsequently issued a final order fully adopting the AJ's award of attorney's fees. Complainant filed the instant appeal, and requested an extension until May 7, 2014, to file a brief in support of the appeal, but did not submit a brief. On June 23, 2014, the Agency requested that the Commission affirm the Agency's final order implementing the AJ's decision on attorney's fees.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
ANALYSIS AND FINDINGS
By federal regulation, the agency is required to award attorney's fees and costs 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)(1)(ii). 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. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983).
The reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum, supra. In this case, we find that the AJ did not err as a matter of law, or abuse his discretion in determining that $300 is a reasonable hourly rate for Complainant's attorney. In support of the requested hourly rate of $475, Complainant's attorney provided data showing that equity partners at large law firms in the Dallas area billed at a rate $463 per hour. However, we note that Complainant's attorney is not an equity partner at a large firm, and his experience as a solo practitioner does not reasonably compare in skill, experience, and reputation of that of an equity partner at a large law firm. Additionally, in his contract with Complainant, his agreed upon rate was $300 per hour.
In regards to the travel time, we find that the AJ properly reduced the rate by 50%. This comports with the Commission's position that an award of attorney's fees for time spent traveling should be compensable at a reduced rate of one half the attorney's normal hourly rate. See Black v. Dep't of the Army, EEOC Appeal No. 01943642 (Feb. 27, 1996). Additionally, we find that the AJ's 5.6 hour reduction of the hours billed for work on the attorney's fees statement was reasonable, not an error of law, nor an abuse of discretion. Accordingly, we AFFIRM the AJ's award of $25,607.39 in attorney's fees and costs.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision awarding $25,607.39 in attorney's fees and costs, and ORDER the Agency to pay Complainant's attorney's fees and costs, in accordance with the order below.
ORDER
To the extent that it has not already done so, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision becomes final:
1. Pay Complainant's attorney's fees and costs in the amount of $25,607.39.
2. Pay Complainant $12,500 in non-pecuniary compensatory damages.
3. Post a notice in accordance with the paragraph below.
4. Provide eight (8) hours of EEO training to the responsible management official.
5. Consider taking appropriate disciplinary action against the responsible management official. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the Compliance Officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation-of their departure date(s).
POSTING ORDER (G0914)
The Agency is ordered to post at its VA Hospital in Portland, Oregon a copy of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
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 (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.
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
__8/24/16________________
Date
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.
2 Complainant initially filed an appeal on March 6, 2014, from the AJ's decision. However, the Agency subsequently issued its final order, and Complainant submitted a second notice of appeal on the Agency's final order on April 7, 2014.
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