01a53107
01-12-2006
Patricia McGraw, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Patricia McGraw v. Department of Veterans Affairs
01A53107
January 12, 2006
.
Patricia McGraw,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A53107
Agency No. 99-2934
DECISION
Complainant filed an appeal with the Commission challenging the Final
Agency Decision on Attorneys' Fees in connection with the investigation
and determination of compensatory damages (Fee Award #2).
Procedural Background
On November 27, 2002, the Commission upheld an EEOC Administrative Judge's
(AJ) ruling that complainant was retaliated against by the agency in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., when in October 2001, she was
not selected for the position of Rehabilitation Nurse. The Commission
remanded the matter to the agency for a supplemental investigation on
compensatory damages and attorney's fees. An evidentiary hearing was
conducted by the agency on March 4, 2003. An attorney's fee petition
was submitted by complainant's attorney on March 11, 2003. On May 29,
2003, the agency issued a decision on Attorney's Fees (Fee Award #1).<1>
The agency issued its Final Agency Decision on Compensatory Damages
on December 9, 2003 (hereinafter "Damages Award"). Complainant's
attorney submitted a second attorney's fee petition on January 13, 2004.
The agency, thereafter, requested clarification of this fee petition and
a revised fee petition was submitted by complainant's attorney on April
9, 2004. Thereafter, on June 23, 2004, the agency awarded complainant
an additional $12,389.98 in attorney's fees and costs in Fee Award #2.
Complainant appeals this award.
In Fee Award #2, the agency finds inconsistencies in complainant's
requested attorney's fees and costs. As the agency notes, the revised
fee petition requests $12,468.00 for 105.40 hours of work performed
and $147.51 in costs. However, pre-bill worksheet #1 shows a request
for $13,659.00 for 92.60 hours of work performed and $233.42 in costs.
Pre-bill worksheet #2 shows an additional $6,932.50 request for an
additional 40.90 hours of work performed and $30.12 in costs. In Fee
Award #2, the agency assumed the total amount of the attorney's fee
request is the sum of the amounts shown on pre-bill worksheet #1 and
pre-bill worksheet #2 which totals $20,367.00 for 133.50 hours of work
performed and $263.54 in costs.
The agency awarded complainant's $12,192.00 for 82.80 hours of work
performed and $197.98 in costs. The agency denied the remaining
requested attorney's fees and costs on various bases discussed more
fully below.
Analysis and Findings
A finding of discrimination raises a presumption of entitlement to an
award of attorney's fees. 29 C.F.R. � 1614.501(e). Attorney's fees
shall be paid for services performed by an attorney after the filing
of a written complaint. 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).
In determining the number of hours reasonably 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." Hensley,
461 U.S. at 437, n. 12. 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. See
National Association of Concerned Veterans v. Secretary of Defense, 675
F.2d 1319 (D.C. Cir. 1982). Counsel for the prevailing party should make a
"good faith effort to exclude from a fee request hours that are excessive,
redundant or otherwise unnecessary." Hensley, 461 U.S. at 434.
Dispute of Agency's Lost Wage Award
The revised fee petition claims a total of 9.6 hours ($1,350.00) for work
performed by an associate attorney representing complainant (CSW) for the
purpose of disputing the agency's lost wage (back pay) determination.
The agency excluded this amount since complainant failed to show that
the lost wage dispute resulted in any additional relief for complainant.
We find that complainant failed to show that the attorney's work on the
lost wage dispute resulted in additional relief. Accordingly, we agree
with the agency's denial of this claim. See Flanagan v. Department of
Health and Human Services, 01996144 (July 27, 2000) (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).
Previously Reimbursed Attorney's Fees
The agency denied a claim for 3.10 hours ($418.50) for work performed in
association with the review of the Commission's decision, preparation of
the original fee petition and other nonspecific work. The agency contends
that this claim was included in the previous fee award. Upon review of
the record, it appears that this claim was previously paid. We note
that complainant fails to address this issue on appeal. Accordingly,
we affirm the agency with respect to its denial of this claim.
Appeal of Compensatory Damages Award
The agency denied, as premature, a claim for 18.9 hours ($2,902.50) of
work performed in connection with complainant's appeal of the agency's
Damages FAD. Since the issuance of Fee Award #2, the Commission
resolved the pending appeal on compensatory damages. Specifically,
the Commission modified the Damages Award. See McGraw v. Department of
Veteran's Affairs, EEOC Appeal No. 01A41733 (July 20, 2005). Accordingly,
we modify Fee Award #2 and find that complainant is entitled to an
additional $2,902.50 in attorney's fees.
Pending EEO Charge
The agency also denied a claim for .60 hours of work in connection with
complainant's previously pending EEO complaint. The agency notes that
complainant filed a formal EEO complaint (Agency #200J-0583-2003101-767)
on March 28, 2003, alleging that the agency did not properly and fully
implement the Commission's decision. The agency asserts that on May 30,
2002, the agency dismissed this complaint on the grounds that it was
comprised of allegations of non-compliance. The agency denied this
claim since complainant failed to establish that she is a prevailing
party with regard to this complaint. We agree with the agency and note
that complainant does not address this issue on appeal. See Flanagan
v. Department of Health and Human Services, 01996144 (July 27, 2000).
Other Work Performed
The agency also argues that numerous entries in the revised fee petition
lack adequate descriptions of the work performed. Accordingly, the
agency excluded .70 hours claimed in entries "#180128," "#181692"
and "#145372." Upon review of the record, we agree with the agency's
exclusion of such work since such entries are not sufficiently clear.
See Stapp v. Department of the Navy, EEOC Appeal No. 01A05634 (September
9, 2002).
Functional Capacity Evaluation
The agency denied .20 hours for work performed on December 21, 2003,
in connection with a Functional Capacity Evaluation (FCE) because it
does not appear related to the Damages Award. We agree with the agency
and find insufficient evidence in the record connecting the FCE with the
Damages Award. We note that complainant fails to address this issue on
appeal.
Work After Damages Award Issued
The agency argues that entries after December 9, 2003, should be excluded
(except the fee petition work), since no other work performed after the
compensatory damages decision was issued can reasonably be construed
as work performed in furtherance of the Damages Award. We disagree.
The record clearly shows that complainant appealed the compensatory
damages award which resulted in a modification of the compensatory
damages award. See McGraw v. Department of Veteran's Affairs, EEOC
Appeal No. 01A41733 (July 20, 2005). Moreover, the entries excluded by
the agency are sufficiently detailed to support the finding that such
work was related to the appeal of the Damages Award. Accordingly,
3.70 hours of work performed by CSW after December 9, 2003 (totaling
$555.00<2>) should be reimbursed by the agency.
Previously Reimbursed Work
The agency excluded 3.80 hours of work performed by a partner in the
law firm representing complainant (KEL) and 8.70 hours of work by CSW
that it claims was previously considered in Fee Award #1. We agree.
We also note that complainant fails to address this issue on appeal.
In addition, we find entries #126916, #127525, #128713, #129665,
#129677, #133902, #134437, #134439, #134451, #134511, #134517, #134639,
#144113, #145104, and #145376, are generally unsupported and vague.
For example, the Pre-Bill Worksheet identifies the attorney's fees
in dispute as "telephone call with opposing counsel," "telephone call
with client," "review correspondence from client," "met with client,"
"review materials from client," etc. We find it difficult to ascertain
the reasonableness of work performed under such general descriptions.
See Stapp v. Department of the Navy, EEOC Appeal No. 01A05634 (September
9, 2002).
Work Performed by BLW
The agency excludes .30 hours of work performed by a second associate
attorney representing complainant (BLW) on the basis that his hourly rate
of $200 is not supported by an affidavit noting his legal experience
and customary hourly rate. We agree with the agency. We note that
complainant fails to address this issue on appeal.
Costs
The agency excluded $32.08 in costs previously reimbursed. In addition,
the agency excluded $3.36 for costs associated with an unspecified appeal
on January 5, 2004 (#185894). The agency also excluded all cost entries
in pre-bill worksheet #2 totaling $30.12 because those costs do not appear
to be related to complainant's Damages Award. Upon review of the record,
we agree with the agency and note that complainant fails to address this
issue on appeal.
Accordingly, for reasons set forth above, we MODIFY the agency's final
decision on attorney's fees and REMAND this matter to the agency to take
corrective action in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days from the date this decision becomes
final, to the extent not previously paid, the agency shall pay complainant
$15,842.48 in attorney's fees and costs associated with her compensatory
damages claim.
2. The agency shall submit a report of compliance, as provided in
the statement entitled "Implementation of the Commission's Decision."
The report shall include supporting documentation, including evidence
that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 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. � 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 (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 (T0900)
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 (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
January 12, 2006
__________________
Date
1 The agency awarded $6,070.60 in attorney's fees and costs and excluded a
total of 31.20 hours as premature and relevant to complainant's attorney's
work on the compensatory damages claim which, at the time, was unresolved.
Complainant appealed and the Commission affirmed Fee Award #1. See McGraw
v. Department of Veterans Affairs, EEOC Appeal No. 01A340005 (December 9,
2004).
2 The agency found that the record supports an increase in CSW's hourly
rate to $150 after April 16, 2003.