01996144
07-27-2000
Margaret M. Flanagan, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Margaret M. Flanagan v. Health and Human Services
01996144
July 27, 2000
.
Margaret M. Flanagan,
Complainant,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01996144
Agency Nos. NIH55889; NIH29091
Hearing Nos. 120-93-7501X; 120-93-7210X
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).
ISSUE PRESENTED
The issue presented is whether the agency properly reduced complainant's
request for attorney's fees from $37,789.57 to $968.96.
BACKGROUND
Complainant filed a formal EEO complaint alleging discrimination on
the bases of disability (back injury and carpal tunnel syndrome) and
retaliation when: (1) the agency failed to promote her from August 5,
1981 until April 9, 1990; (2) she was placed on Absent Without Leave
(�AWOL�) status from July 16, 1990 through August 6, 1990; and (3) the
agency failed to select her for the position of Nurse Specialist, GN-12
on June 21, 1990. On October 12, 1994, an EEOC Administrative Judge (AJ)
recommended a finding of discrimination only with respect to the AWOL
issue. The agency thereafter issued its FAD adopting the AJ's findings.
After complainant appealed the FAD, the Commission issued a decision on
August 4, 1997, affirming the FAD. Complainant subsequently requested
for reconsideration which was denied on April 23, 1998.
Thereafter, the parties had discussions regarding the award of the
attorney's fees. Complainant's attorney submitted various invoices for
services rendered in the pursuit of complainant's claims. In its FAD
dated December 2, 1998, on the attorney's fee claim, the agency did not
dispute the reasonableness of the claimed fees, but instead found that
since complainant did not prevail on all of her issues, she was only
entitled to fees for those issues on which she prevailed. Specifically,
the FAD found that complainant's two complaints of discrimination
involved thirty-eight (38) non-selection issues and the AWOL issue, and
that complainant had only prevailed on one of the thirty-nine issues.
Thus, the agency awarded complainant one-thirty-ninth (1/39th) of the
requested fees ($37,789.57), or $986.96.
On appeal, complainant contends that the agency failed to recognize that
the matter involved two complaints of discrimination and not thirty-nine
(39) individual complaints of discrimination. Complainant further
contends that the FAD was unreasoned and not based on the facts at issue.
As a result, complainant requests that the Commission remand the matter
back to the agency for the issuance of a reasoned decision. The agency
counters by asserting that the appeal is untimely because the agency
issued is final decision regarding attorney's fees on December 2, 1998,
but complainant did not file her appeal until July 4, 1999.<2>
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)). 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)(2)(ii)(B).
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.� See Bernard
v. Department of Veterans Affairs, EEOC Request No. 01966861 (July 17,
1998). However, the attorney does have the burden of identifying the
subject matters in which he spent his time, which can be documented by
submitting sufficiently detailed contemporaneous time records to ensure
that the time spent was accurately recorded. Id.
In this case, the agency does not dispute the reasonableness of the
attorney's fees request, but instead contends that complainant is only
entitled to fees in conjunction with the issue upon which she prevailed.
We agree with the agency, but disagree with method the agency used to
reduce the award.
In order to obtain an award of attorney's fees, the complainant must be
considered a prevailing party. See Texas State Teachers Ass'n v. Garland
I.S.D., 489 U.S. 782 (1989). A prevailing party for purposes of
obtaining attorney's fees is one who succeeds on any significant issue,
and achieves some of the benefit sought in bringing the action. Davis
v. Department of Transportation, EEOC Request No. 05970101 (February 4,
1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)). Where a
complainant does not prevail on every issue, fees are only available
for the work that was performed with regard to the issue on which the
complainant prevailed. Rather than attempt the often impossible task of
deciding which work pertained to what issue, the Commission's approach
is to take a percentage across-the-board reduction of the hours claimed.
McGinnis v. Department of Defense, EEOC Request No. 05920150 (July 15,
1992); Coburn v. Department of the Navy, EEOC Appeal No. 01985311 (March
20, 2000).
The agency viewed complainant's two complaints as raising thirty-eight
(38) selection issues and the AWOL issue. Since she only prevailed on the
AWOL issue, the agency only awarded complainant one thirty-ninth (1/39th)
of the requested fees. However, we instead find that the complainant's
two complaints only raised three issues. The first complaint raised
the issue of the agency's failure to promote complainant for the period
between August 5, 1981 and April 9, 1990. The second complaint raised
both the AWOL issue and complainant's non-selection for the position
of Nurse Specialist, GN-12 on June 21, 1990. We find that the first
complainant was substantial, in that it involved the agency's failure to
promote complainant in thirty-eight (38) separate selections. As such,
we find that the first complaint was equal to fifty percent (50%) of
the total claim. Of the remaining two issues in the second complaint,
complainant only prevailed on the AWOL issue. As a result, we find that
she is only entitled to an attorney's fee award equivalent to twenty-five
percent (25%) of the total claim. Therefore, we order the agency to pay
complainant $9,447.39 (25% of the $37,789.57 requested for attorney's
fees).
CONCLUSION
Based on a review of the record and for the foregoing reasons, it is the
decision of the Commission to MODIFY the agency's final decision and to
award complainant attorney's fees as discussed in this opinion and as
further set forth in the ORDER below.
ORDER
The agency is ordered to pay to complainant, total attorney's fees in the
amount of $9,447.39 for services performed prior to December 2, 1998.
The agency shall tender the additional payment due to the attorney
within 30 calendar days after this decision becomes final. In addition,
we order the agency to pay reasonable attorney's fees and costs incurred
in pursuit of this appeal (EEOC Appeal No. 01996144). Complainant shall
provide the agency, in accordance with applicable regulations, with
all necessary documentation of services rendered and costs as incurred
in pursuit of this appeal within 30 calendar days of the date this
decision becomes final. The agency may tender this payment separately,
or together with the payment specified above in this order. If this
payment is tendered separately, the agency shall tender it to complainant
no later than 60 calendar days after complainant's submission of the
necessary documentation.
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 evidence that the corrective action
has been taken.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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
July 27, 2000
Date 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � �
1614.402) requires that an appeal from an agency's final decision must be
filed within thirty (30) days of the decision. While the agency contends
that the final decision was issued on December 2, 1998, complainant's
attorney states that he did not receive the final decision until June
25, 1999. The agency acknowledges that the initial mailing of the
decision was returned unclaimed. However, the agency contends that it
re-mailed the decision and electronically transferred the $968.96 into
the attorney's bank account on February 8, 1999. Notwithstanding its
above contentions, the agency has not provided any evidence that the final
decision was received by complainant's attorney prior to June 25, 1999.
As a result we find that the appeal is timely.