01a40708
07-12-2005
Michael Arnold, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael Arnold v. United States Postal Service
01A40708
07-12-05
.
Michael Arnold,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40708
Agency No. 4F-945-1076-96
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his attorney's petition for fees incurred in connection
with his successful prosecution of a complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
As is detailed in our decision on the merits of this matter, Arnold
v. United States Postal Service, EEOC Appeal No. 07A20087 (June
25, 2003), an EEOC Administrative Judge (AJ) found that complainant
successfully prosecuted a claim of race and sex discrimination when his
position was put up for bid. The agency issued an order that rejected the
findings of the AJ and filed an appeal with the Commission. On appeal,
the Commission reversed the agency's order. Complainant was awarded
remedial relief, including an order directing the agency to reimburse
him for reasonable attorney's fees incurred in connection to his case.<1>
Subsequently, complainant's counsel submitted a petition seeking an
award of $20,497.94 in fees and costs for services related to opposing
the agency's appeal. The petition contains entries describing the legal
services rendered in increments of 1/10th of an hour. It is supported
by a statement from A-1, complainant's counsel, outlining the services
that she and B-1, her legal clerk who is a member of the bar, performed
on behalf of complainant. The fees requested are set forth as follows:
46.60 hours @ $375.00 per hour ($17,475.00) for A-1; 18.05 hours @
$160.00 per hour ($2,888.00) for B-1; and costs of $134.94.
In its final agency decision, the agency determined that complainant
was only entitled to reimbursement in the amount of $17,628.23 in fees
and costs. The agency did not take issue with the hourly rate claimed
by A-1, but concluded that the amount of time spent �on research and on
procedural matters� was excessive due to A-1's expertise in litigating
employment issues.
LEGAL STANDARD
The Commission may award complainant reasonable attorney's fees and other
costs incurred in the processing of a complaint regarding allegations
of discrimination in violation of Title VII. 29 C.F.R. � 1614.501(e).
A finding of discrimination raises a presumption of an entitlement to an
award of attorney's fees. Id. An award of attorney's fees is determined
by calculating the lodestar, i.e., by multiplying a reasonable hourly
fee times a reasonable number of hours expended. Hensley v. Eckerhart,
461 U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B). There is a strong
presumption that this amount represents the reasonable fee. 29 C.F.R. �
1614.501(e)(2)(ii)(B). A reasonable hourly fee is the prevailing market
rate in the relevant community. Blum v. Stenson, 465 U.S. 886 (1984).
A petition for fees and costs must take the form of the verified statement
required by the Commission's regulations at 29 C.F.R. � 1614.501(e)(2)(i).
ANALYSIS AND FINDINGS
We find the legal services reflected in complainant's fee petition are
reasonable. The agency offers nothing to support its position other
than its conclusory assertion that A-1 and/or B-1 spent an excessive
amount of time on research and procedural matters. There is no basis for
this conclusion. In this regard, we note that the subject fee petition
covers the period shortly before and after the agency rejected the AJ's
decision and filed its appeal. During this period, A-1 explained the
AJ's decision to complainant, discussed his options should the agency
file an appeal, reviewed the agency's appeal, wrote the appeal brief
and kept complainant informed about the status of the case. B-1, among
other things, was tasked with researching cases and drafting arguments.
Without some evidence or argument to support the agency's position
that A-1 and/or B-1 spent an excessive amount of time on research and
procedural matters, we are unable to conclude that the amount of time
expended was excessive.
CONCLUSION
For the foregoing reasons, we find that Complainant is entitled to an
award of $20,497.94 in attorney's fees and costs.
ORDER
Within thirty days from the date this decision becomes final, to the
extent it has not already done so, the agency shall tender to complainant:
$20,497.94 in attorney's fees and costs. 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
supporting documentation of the agency's payments to complainant.
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
______07-12-05____________
Date
1On appeal, the Commission upheld the AJ's award of $37,599.27 in attorney
fees and costs.