0120141180
09-14-2016
Nenita S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nenita S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120141180
Agency No. 4H300024607
DECISION
On February 12, 2014, Complainant filed an appeal from the Agency's January 10, 2014, final decision concerning the attorney's fee award for her equal employment opportunity (EEO) complaint alleging 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission MODIFIES the Agency's final decision.
ISSUE PRESENTED
Whether the Agency properly awarded Complainant's attorney's fees.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Riverdale Post Office in Riverdale, Georgia. Complainant alleged that the Agency discriminated against her based on disability when it took her out of her rehabilitation assignment, and instructed her to return to a position of a modified letter carrier on July 5, 2007. An EEOC Administrative Judge (AJ) found that the Agency discriminated against Complainant, and on July 22, 2009, the Agency rejected the AJ's finding and issued a decision finding no discrimination. Complainant appealed the Agency's decision to the EEOC's Office of Federal Operations (OFO).
On appeal, OFO reversed the Agency's decision, and among other things, ordered it to pay Complainant $19,000 in attorney's fees.2 Complainant was also authorized to submit for attorney's fees for work done for the appeal. On November 18, 2013, Complainant submitted a fee petition to the Agency requesting $9,201 for work completed from July 29, 2009, through August 14, 2013. On January 3, 2014, Complainant requested an additional two hours and 30 minutes of work, for a total of $9,951 in attorney's fees.
On January 10, 2014, the Agency issued its final decision awarding $4,950 in attorney's fees. The Agency found that the hours submitted were inflated and unreasonable. It awarded 16.5 hours at the attorney's requested hourly rate of $300. This included one hour and 30 minutes, out of the two hours and 30 minutes, requested on January 3, 2014. The Agency issued a check to Complainant's attorney for $4,950 on January 23, 2014.
Complainant filed the instant appeal, and submitted a brief in support of her appeal on March 24, 2014. The Agency requested that the Commission affirm its final decision on March 6, 2014.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency's decision to reduce the award of attorney's fees is arbitrary. Complainant is also requesting additional hours for work on this appeal, and is asking for an additional $6,426.00 in attorney's fees.3
The Agency states that Complainant's fees were inflated and unreasonable. Additionally, the Agency argues that Complainant has not raised any issues on appeal to warrant further consideration.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
By federal regulation, an agency is required to award attorney's fees and costs 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). All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant or otherwise unnecessary hours. EEO MD-110, at Ch. 11 � VI.F.
On appeal, we note that the Agency is not challenging the attorney's hourly rate, but only the reasonable number of hours, and as such, this decision will only address the issue regarding reasonable number of hours. In its final decision, the Agency referenced an earlier letter to Complainant with details regarding its reduced award of attorney's fees. The Agency found that the hours claimed were "unreasonable, unnecessary, inflated, and duplicative." Specifically, the Agency noted that the eleven hours claimed for researching and drafting the reply brief was inflated, and found six hours to be reasonable; that there were numerous hours claimed to provide updates to Complainant, despite the fact that no Commission decision had been rendered during that time period; and Complainant's attorney claimed half an hour for an update when Complainant received her compensatory damages payment.
Upon review of the fee petition, we agree with the Agency that some of the hours claimed seem inflated. For example, we agree that eleven hours for Complainant's Reply Brief is excessive, and agree that six hours is more reasonable. The brief was about ten pages, and reiterates many of the same arguments found in her prior submissions, and the AJ's decision. Additionally, we find that the charges for the status inquiry to OFO are inflated. Complainant's attorney billed 1.75 hours to review Complainant's letter to OFO, and one hour to review and discuss the Commission's response. We find the hours to be inflated because Complainant's letter was written by her, and any involvement by her attorney would have been minimal; and the OFO response was a short letter stating that her appeal would be processed as expeditiously as possible.
We also find that the billing of half an hour to learn that Complainant had received her compensatory damages payment is not detailed enough to warrant compensation. The Agency issued Complainant a check, and we assume that she called her attorney to inform him that she received it. We note that no issues were raised regarding Complainant's compensatory damages award, and a half hour to learn that Complainant received her payment is inflated. Additionally, the three and a half hours to prepare the Complainant's fee petition for the appellant proceedings is high. The fee petition contained a short cover letter; an affidavit regarding Complainant's attorney's reasonable hourly rate; and the list of billing items. We note that the affidavit is not a newly created document, and that it is virtually identical to the one that was previously submitted. The most amount of time would have been spent on the list of dates, hours and description of the billing action for twenty-eight line items. As such, we will reduce the hours, as follows:
1. 9/5/2009 Research Draft Reply Brief 11 hours to 6 hours
2. 5/17/2011 Client update OFO Status Letter 1.75 hours to .5 hours
3. 11/13/2011 Review OFO Letter Case Update 1 hour to .5 hours
4. 10/24/2013 Client update received comp damages .5 hours to zero hours
5. 11/14/2013 Complete attorney fee petition 3.5 hours to 1.5 hours
In total, we reduce the number of hours billed from 30.67 to 21.42 hours.
However, we find that the time billed for the periodic updates to the Complainant are reasonable. While we credit the Agency's argument that there was no new information pending the Commission's decision, the updates were made every few months, ranging from .06 to .5 hours at a time. Accordingly, we will leave these charges undisturbed. We conclude that Complainant's attorney should be awarded attorney's fees for 21.42 hours at $300 per hour, for a total of $6,426.00. We note that the additional attorney's fees requested for this appeal need to be submitted to the Agency, not the Commission.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the attorney's final decision to award Complainant attorney's fees of $6,426. The Agency is ordered to pay the difference owed to Complainant's attorney, in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following remedial actions within one hundred and twenty (120) days of the date this decision becomes final:
1. The Agency shall pay Complainant's attorney an additional $1,476, for a total of $6,426.00 in attorneys' fees.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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).
ATTORNEY'S FEES (H0610)
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 this decision becoming final. 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 (K0610)
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 77960, Washington, DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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
__9/14/16________________
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.
2 EEOC Appeal No. 0720090050 (September 17, 2013).
3 We note that the additional attorney's fees requested on appeal need to be submitted to the Agency, not the Commission.
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