0120162297
04-25-2018
Meghann M.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Meghann M.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120162297
Hearing No. 531-2010-00007, Appeal No. 0720150028
Agency No. HQ-08-0461-SSA
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 6, 2016 final order concerning her equal employment opportunity (EEO) complaint regarding the award of fees and costs for Complainant's attorney following the Commission's decision in EEOC Appeal No. 0720150028 (March 15, 2016).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Director for the Division of Retirement Services at the Agency's facility in Baltimore, Maryland.
On September 2, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and/or reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. beginning April 2008, Complainant was involuntarily detailed for 120 days;
2. Complainant was denied a performance award for FY 2007;
3. Complainant was permanently removed from her position as Director, Division of Retirements and Survivors Disability Insurance Statistics, effective November 2008;
4. on December 7, 2008, she was detailed to a position in the Office of Financial Policy and Operations;
5. on January 9, 2009, she received a performance rating of "Excellent" which was lower than the "Outstanding" performance rating she received for FY 2007; and
6. the Agency continuously failed to select her for supervisory positions within the Agency.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on October 26-27, 2010. Following a two-day hearing, the AJ ruled in favor of Complainant on claims 1, 3 and 4.
The AJ awarded Complainant $75,000 in non-pecuniary compensatory damages; pecuniary damages of $19,401.42; $6,245 for future pecuniary damages and restoration of 215.06 hours leave, less such leave otherwise restored by the Agency. The AJ ordered that Complainant be reinstated and restored to the position she encumbered prior to the discriminatory incident and awarded her attorney's fees and costs in prosecuting this case.
The Agency appealed. In EEOC Appeal No. 0720150028 (March 15, 2016), we concluded that the evidence of record supported the AJ's finding on liability. It establishes that Complainant was accorded harsher treatment than the male for a single incident, where the male was the instigator of the incident.
The decision ordered the Agency to take the following remedial actions:
1. Within thirty (30) days of the date on which this decision becomes final, the Agency shall tender to Complainant the sum of $19,401.42 in pecuniary damages and the sum of $6,245 for future pecuniary damages.
2. Within thirty (30) days of the date on which this decision becomes final, the Agency shall implement the awarded restoration of 215.06 hours leave, less such leave otherwise restored by the Agency.
3. Within thirty (30) days of the date this decision becomes final, the Agency shall rescind the removal action and retroactively reinstate Complainant and restore her to the position she encumbered prior to her removal - Division Director, SRSA or its equivalent. Complainant shall also be awarded seniority and other employee benefits from the date of her April 2008 reassignment to the date of reinstatement.
4. Within thirty (30) days of the date on which this decision becomes final, the Agency shall tender to Complainant the sum of seventy-five thousand ($75,000.00) in non-pecuniary damages.
5. Complainant is to be compensated for attorney's fees and costs in prosecuting this case. (See "Attorney's Fees" paragraph below). This covers the fees associated with prosecuting this action through appeal with interest for any incurred and reasonable attorney's fees.
6. Within thirty (30) days of the date on which this decision becomes final, the Agency is directed to conduct training for the S1 and S2 who were found to have violated Title VII. The Agency shall address these employees' responsibilities with respect to sex discrimination and retaliation.
7. Within thirty (30) days of the date on which this decision becomes final, the Agency shall consider taking disciplinary action against S1 and S2. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
In compliance with the now-affirmed AJ's decision, the Agency issued Complainant a check for $210,667.97 for attorney's fees and $ 3,307.19 in legal costs, as determined by the AJ. The Agency then asked Complainant's attorney to provide an additional petition for fees and costs associated with the processing of the appeal in EEOC Appeal No. 0720150028.
By April 14, 2016, the attorney submitted the petition for $540,105.04 in fees and $6,674.67 in costs. The attorney argued that when the Commission remanded the award to the Agency, it implicitly vacated the AJ's decision regarding attorney's fees. As such, the attorney submitted a request for all fees incurred, including the attorney's fees and costs already presented to the AJ, with a request to reconsider the amounts determined by the AJ.
In its July 6, 2016 decision, the Agency addressed the attorney's petition for fees and costs. The Agency found that the it had already provided Complainant with fees and costs associated with the processing of the complaint up to the point of the appeal. Therefore, the Agency determined that the only fees and costs to which Complainant was entitled involved the processing of the appeal from February 24, 2015 to the filing of the petition for fees and costs. Accordingly, the Agency determined that the only fees at issue were for work performed by the attorney and co-counsel after October 5, 2012, in the amount requested in the petition for $99,315.50 in fees and $535.21 in costs.
The Agency found that the attorney and his co-counsels (Associate 1 and Associate 2) provided sufficient evidence that the hourly rates of $ 568.00, $ 530.00 and $ 455.00 per hour were in line with the prevailing market rates under the "Laffey Matrix." The Agency then reduced the hours expended by the attorneys by 50% for a total of $ 49,657.75. As to the costs request, the Agency found that the attorney failed to provide receipts for several of the entries. Therefore, the Agency only provided costs for couriers and mailings in the amount of $240.91.
Complainant appealed, asserting that she is entitled to a review of all fees and costs associated with the processing of the complaint. She asked that the Commission find that she is entitled to $540,105.04 in fees and$ 6,674.67 in costs. The Agency, in response, asks that the Commission affirm its decision.
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)(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).
There is a strong presumption that the number of hours reasonably expended multiplied by a reasonable hourly rate, the lodestar, represents a reasonable fee, but this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency. 29 C.F.R. � 1614.501(e)(2)(ii)(B). The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-9. (Aug. 5, 2015). A fee award may be reduced: in cases of limited success; where the quality of representation was poor; the attorney's conduct resulted in undue delay or obstruction of the process; or where settlement likely could have been reached much earlier, but for the attorney's conduct. Id. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id. at p. 11-10.
Limitation on Fees and Costs
As an initial matter, the Agency limited review of the fee petition to the fees and costs incurred following the decision by the AJ. Complainant argued in the instant appeal that she is entitled to a review of all attorney's fees and costs associated with the processing of the matter as a whole. She asserted that, in her cross-appeal to EEOC Appeal No. 0720150028, she had asked for a review of the AJ's award of attorney's fees and costs. She claimed that because the previous decision was silent on the matter, the Commission implicitly vacated the AJ's award of attorney's fees and costs.
The decision in EEOC Appeal No. 0720150028 stated that the Agency filed its notice of appeal from both the AJ's decision on liability, the compensatory damages award. and the award of attorney's fees and costs. The Commission did not expressly restate the order by the AJ regarding the amount of attorney's fees and costs. However, in EEOC Appeal No. 0720150028, we specifically found that the record supported the AJ's decisions and the provision of relief was appropriate. We concluded by finding that Complainant was entitled all the relief and damages awarded by the AJ, which would include the AJ's specific award of fees and costs for Complainant's attorney and his associates. Further, the decision in EEOC Appeal No. 0720150028 concluded by affirming the "final decision of the AJ which we deem as the final decision in this matter." Complainant argued that she was unclear of the decision regarding attorney's fees and costs. However, she failed to exercise her right to file a request for reconsideration of the decision in EEOC Appeal No. 0720150028. Based on our review, we determine that the Agency correctly held that Complainant is not entitled to further review of the award of attorney's fees and costs already determined by the AJ. As such, we shall limit the review of fees and costs to work done by the attorney following the February 11, 2015 decision by the AJ.
Hourly Rate
The Agency does not contest use of the hourly rates claimed by Complainant in this case which were derived from the Laffey Matrix: $568/hour for Complainant's attorney, $530/hour for Associate 1, and $455/hour for Associate 2. Therefore, these hourly rates are not at issue and will be adopted in this decision.
Hours Expended
We turn to the hours expended by the attorney and his associates since the AJ's decision dated February 11, 2015. The attorney indicated that he expended 52 hours, Associate 1 expended 2.8 hours, Associate 2 expended 150.1 hours for a total of 204.9 hours. The Agency determined that an across-the-board 50% reduction was appropriate noting that Complainant did not obtain higher attorney's fees and costs or compensatory damages.
While attorney fees may not be recovered for work on unsuccessful claims, the fact that a complainant did not prevail on every aspect of her complaint does not justify a reduction in the hours expended where the claims are intertwined, making it impossible to segregate the hours involved in each claim. Hensley, at 433, 448. Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. National Association of Concerned Veterans (NACV) v. Secretary of Defense, 675 F.2d 1319, 1337 n. 13 (D.C. Cir. 1982). Claims are fractionable or unrelated when they involve "distinctly different claims for relief that are based on different facts and legal theories." Hensley, 461 U.S. at 434-35. Upon review of the submission by Complainant's attorney, we find that the entries included several hours regarding the review and processing of the appeal before the Commission. We note that the Agency's appeal of the AJ's decisions included assertions that the AJ erred in finding discrimination and awarding remedies to Complainant based on the findings. As such, we determine that the appeal and cross-appeal were intertwined and we conclude that the 50% reduction across-the-board was not appropriate. Therefore, we provide the Attorney with 52 hours, Associate 1 with 2.8 hours, and Associate 2 with 150.1 hours.
Accordingly, we find that Complainant is entitled to $29,536.00 for her primary attorney, $1,484.00 for Associate 1, and $68,295.50 for Associate 2, for a grand total of $ 99,315.50 in attorney's fees.
Costs
Finally, the Attorney submitted a list of expenses in the amount of $ 535.21. Included on the list was five entries for couriers, four entries for research, two entries for mailing and postage, and one for "witness fee." However, the attorney only provided receipts for the couriers. The Agency agreed to provide for the two mailing and postage entries along with the couriers.
Costs must be proved in the same manner as fees are, and the complainant must provide documentation, such as bills or receipts. MD-110, at 11-13. With respect to the reimbursement for mailing and research, receipts for costs may not always be available when a law firm uses billing meters and timers. See Conrad v. Dep't of Justice, EEOC Appeal No. 0120111519 (Nov. 29, 2011). In these situations, we require the fee applicant to submit a verified statement of costs, which should include a list of services rendered itemized by date, a detailed summary of the task, the rate, and, where practicable, the names of the people performing the tasks. Id. From the list provided by the Attorney, the only item that does not have sufficient evidence is the entry for "witness fee." There is no indication of who the "witness" was and the purpose for the alleged "witness" at the appeal and post appeal stages. As such, we find that Complainant is entitled to $ 485.76, which was the amount requested less the fee for the "witness."
CONCLUSION
Upon review of the record, we MODIFY the Agency's final decision regarding Complainant's entitlement to fees costs and REMAND the matter to the Agency to take action in accordance with the ORDER below.
ORDER
Within one hundred and twenty (120) calendar days of the date this decision is issued, to the extent it has not already done so, the Agency is ordered to pay to Complainant $99,315.50 in attorney's fees and $ 485.76 in legal costs.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
April 25, 2018
__________________
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.
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