01983008
08-28-2000
Lois G. Bucher, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Lois G. Bucher v. Health and Human Services
01983008
August 28, 2000
.
Lois G. Bucher,
Complainant,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01983008
Agency No. FDA-386-94
DECISION
Complainant, by and through her attorney, timely initiated an appeal
to the Equal Employment Opportunity Commission (�EEOC� or �Commission�)
from a final agency decision (�FAD�), concerning an award of attorneys'
fees.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue presented is whether the agency properly reduced complainant's
request for attorney's fees from $4,504.07 to $1,134.07.
BACKGROUND
Complainant filed a formal EEO complaint on February 28, 1994, alleging
that she was discriminated against on the basis of her sex (female)
when her temporary promotion was not extended even though the Office of
Personnel Management (�OPM�) authorized the extension. On January 24,
1995, the agency and complainant entered into a settlement agreement
which among other provisions provided that the agency would contribute
to the Civil Service Retirement System the difference between the
sum the agency and complainant contributed between October 17, 1993,
and September 30, 1994, and the amount that each would have contributed
had complainant continued to be paid at the GS-13 step 7 rate in effect
during that period. The agreement also resolved the issue of the amount
of attorney's fees for pursuit of the complaint.
On July 21, 1995, complainant informed the agency that it had not
complied with the above-referenced provision of the settlement agreement.
According to complainant, the agency assured her when the agreement was
signed that it would be implemented in approximately ninety (90) days.
Complainant stated that implementation had not occurred even though six
months had passed since the agreement was executed. Complainant requested
that the settlement agreement be implemented without further delay.
Complainant submitted a second notification of breach to the agency on
February 7, 1996. After the agency failed to respond to her breach
allegation, complainant filed an appeal with this Commission on July
19, 1996. We found that the agency breached the settlement agency and
ordered the agency to comply with the settlement agreement and to pay
to complainant attorney's fees in association with pursuing the breach
of the settlement agreement. See Bucher v. Department of Health and
Human Services, EEOC Appeal No. 01965596 (May 14, 1997).
Complainant thereafter submitted her itemized request for attorney's
fees and legal costs of $4,504.07 to the agency. In its FAD, the
agency determined that complainant was only entitled to $1,134.07
of the requested fees. Specifically, the agency concluded that since
$2,731.75 of the requested fees were resolved pursuant to the January 24,
1995 settlement agreement, complainant was only entitled to $818.04 for
attorney's fees in conjunction with pursuing the breach of the settlement
agreement and $316.03 for postage and travel costs. The agency found
that complainant was not entitled to the $2,186.03 requested for legal
work done by her husband prior to her retaining her attorney.
On appeal, complainant contends that the agency had never prior to its
FAD regarding attorney's fees, objected to her husband serving as her
initial representative and thus should not now object to paying his
expenses as result of the representation. She further asserts that
her husband, while not an attorney, has more than thirty (30) years of
experience in the legal field.
ANALYSIS AND FINDINGS
By regulation, a federal agency must award attorney's fees, in accordance
with existing law, for the successful processing of an EEO complaint. See
64 Fed. Reg. 37,644, 37,659-660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)). In general, attorney's fees
shall be paid only for services performed after the filing of a written
complaint and after the complainant has notified the agency that she is
represented by an attorney. Id. Further, attorney's fees are allowable
only for the services of members of the Bar and law clerks, paralegals or
law students under the supervision of members of the Bar. Id. 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 Blum v. Stenson, 465 U.S. 886 (1984); 29 C.F.R. �
1614.501(e). A prevailing complainant is also entitled to recovery of
his/her costs. Costs include witness fees, transcript costs, mileage,
postage, telephone calls, and photocopying. Hafiz v. Department of
Defense, EEOC Petition No. 04960021 (July 11, 1997).
On appeal, complainant does not dispute the agency's reduction of
her requested fees for services performed by her attorney, <2> but
contends that in addition to paying her attorney's fees and costs,
the agency should also pay the fees and costs sought for her husband's
services which were performed prior to her retaining an attorney.
Complainant provided an itemized statement of her husband's fees and
costs which totaled $2,186.03. The agency paid $316.03 of the requested
amount because the amount represented postage and other costs which are
recoverable under the regulations. After reviewing the record, we find
that the agency was correct in not paying the remaining representative
fees for complainant's husband. Her husband's fee statement basically
sought payment for performing legal work, such as drafting documents,
conferencing with complainant, and performing research. However,
as stated earlier, our regulations only require the agency to pay
attorney's fees for services from members of the Bar. See 29 C.F.R. �
1614.501(e). Since her husband is not a member of the Bar, complainant
cannot receive an award for his services. While non-attorneys can
serve as representatives in prosecuting EEO complaints (see 29 C.F.R. �
1614.605(a)), our regulations do not require the agency to pay fees for
a non-attorney representative.
CONCLUSION
Based on a review of the record and for the foregoing reasons, it is the
decision of the Commission to AFFIRM the agency's final decision which
awarded complainant $1,134.07 in attorney's fees and costs.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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 (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, Acting Director
Office of Federal Operations
August 28, 2000
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 After reviewing the FAD, we find that the reduction in fees was
appropriate in light of the fact that most of the requested fees were
settled in the prior settlement agreement and that the $818.04 accounted
for the fees in conjunction with pursuing the breach issue.