01a43288
07-20-2005
Mike Amaro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mike Amaro v. United States Postal Service
01A43288
July 20, 2005
.
Mike Amaro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43288
Agency No. 4G-780-0196-98
DECISION
Pursuant to 29 C.F.R. Sec. 1614.405, the Commission accepts complainant's
appeal from the agency's final decision (FAD) in the above-entitled
matter. Believing that he was a victim of discrimination, in May 1998,
complainant filed an EEO complaint alleging that the agency discriminated
against him based on age (over 40) and in reprisal for prior EEO activity
when it, on January 16, 1998 (1) rated complainant as "unacceptable" on
his 1997 merit evaluation and (2) issued complainant a proposed letter
of warning in lieu of a 14-day suspension. Following an investigation,
the agency issued a FAD finding no discrimination based on age or
reprisal. On appeal to the Commission, we found no discrimination
based on age but found retaliation. See Amaro v. U.S. Postal Service,
EEOC Appeal No. 01994367 (February 5, 2002). The agency was ordered
to conduct a supplemental investigation on compensatory damages, and
awarded other appropriate remedies.
Following the supplemental investigation, the agency issued a FAD
awarding complainant $2,000.00 in non-pecuniary, compensatory damages.
Complainant again appealed to the Commission. We held that the amount of
the award of non-pecuniary, compensatory damages should be increased to
$3,500.00 and instructed complainant that she could petition the agency
for an award of attorney's fees. See Amaro v. U.S. Postal Service,
EEOC Appeal No. 01A30313 (December 12, 2003).
On February 11, 2004 complainant submitted an attorney's fees petition
to the agency seeking reimbursement for $5,670.00 in fees and expenses.
On April 21, 2004, the agency issued a FAD awarding complainant $1,313.50
in fees and expenses. From that FAD, complainant brings the instant
appeal.
Complainant, having prevailed in her previous appeals is
presumptively entitled to an award of attorney's fees and costs. 29
C.F.R. Sec. 1614.501(e)(1). Attorney's fees will be computed by
determining the "lodestar." The "lodestar" is the number of hours
reasonably expended multiplied by a reasonable hourly rate. Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983). By regulation, the Commission uses
the same basis for calculating the amount of attorney's fees. 29 C.F.R
Sec. 1614.501(e)(2)(ii)(B). A reasonable hourly rate is a rate based on
"prevailing market rates in the relevant community" for attorneys of
similar experience in similar cases. Cooley v. Department of Veterans
Affairs, EEOC Request No. 05960748 (July 30, 1998) (quoting Blum
v. Stenson, 465 U.S. 886 (1984)).
Hourly Rate
Complainant's attorney seeks to be compensated at an hourly rate of $300.
The agency's FAD was based on an hourly rate of $185. In support of
her claimed rate, complainant's attorney has submitted her own affidavit
and that of another lawyer. She also submits a document entitled �2001
Hourly Rate Report� prepared by the State Bar of Texas.
Our review of the evidence concerning prevailing market rates in the
relevant community supports an hourly rate of $200. Complainant's
counsel avers, and the agency does not dispute, that the agency has,
in the past, compensated her at the rate of $200 per hour. That is
certainly persuasive evidence that complainant's counsel's services are
worth at least that much. In addition, the Texas State Bar report shows
that the most common hourly rate charged by Texas attorneys in the Labor
and Employment field was $200.
However, there is insufficient evidence to establish that a lawyer of
complainant's counsel's experience could routinely command the rate of
$300 per hour in Texas. Complainant's counsel does not contend that she
has ever actually collected $300 per hour for her services. She concedes
that until recently her hourly rate was $200. The affidavit from
the second lawyer does not directly address the question of prevailing
market rates for an attorney with experience comparable to complainant's
counsel. The affiant avers that he has �personally seen attorneys with
substantially lower abilities and less experience [than complainant's
counsel] charging from $200.00 to $300.00 per hour to represent both
individuals and corporate defendants.� This statement does not help
complainant's case. It provides no evidence of prevailing rates because
it does not give any indication of what percentage of attorneys charge
rates in that range.
Hours Reasonably Expended
The agency has disallowed more than half of the 18.6 hours complainant's
counsel devoted to the successful second appeal and resulting
fee petition. The disallowals are primarily based on the agency's
conclusion that the amount of time spent on a particular activity was
�excessive.� We have reviewed the petition and the supporting time
records and conclude that the amount of time expended rendering various
services, such as brief drafting, petition preparation and communicating
with complainant are reasonable. It is not possible for the agency to
scrutinize a particular document, a brief for example, assess that it
could have been produced in three hours, rather the 4.8 hours claimed
and reasonably conclude that the time claimed was excessive. In the
practice of law, time must often be devoted to matters that may not
ultimately be reflected in a final work product. That attorney time,
if reasonably expended, is nonetheless compensable.
Conclusion
Based on the foregoing, the agency's final decision will be modified to
provide that complainant will be awarded $3,720.00 for attorney's fees
based on an hourly rate of $200 multiplied by 18.60 hours reasonably
expended.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall the agency shall pay complainant's attorney fees and
costs in the amount of
$3,720.00
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 verifying
that the corrective action has been implemented.
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. Sec. 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. Secs. 1614.407, 1614.408, and 29 C.F.R. Sec. 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. Secs. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 1614.604(c).
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29
C.F.R. Sec. 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. Sec. 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 this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. Sec. 1614.501.
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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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
July 20, 2005
__________________
Date