Patricia Rychlik, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency

Equal Employment Opportunity CommissionMar 28, 2000
01972841 (E.E.O.C. Mar. 28, 2000)

01972841

03-28-2000

Patricia Rychlik, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency


Patricia Rychlik v. Department of the Navy

01972841

March 28, 2000

Patricia Rychlik, )

Complainant, )

) Appeal No. 01972841

v. ) Agency No. 96-67004-009

)

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency )

)

DECISION

INTRODUCTION

On February 13, 1997, Patricia Rychlik (complainant) initiated an appeal

to the Equal Employment Opportunity Commission (EEOC) from the final

decision of the Department of the Navy (agency), issued on January 28,

1997, concerning a request for attorney's fees in connection with her

equal employment opportunity (EEO) complaint.<1> The appeal is accepted

by the Commission in accordance with the provisions of EEOC Order

No. 960.001.<2>

ISSUE PRESENTED

The issue presented is whether the agency correctly calculated the amount

of attorney's fees and costs to which complainant is entitled.

BACKGROUND

On July 2, 1996, complainant filed a formal complaint with the agency

alleging discrimination due to sex (female) and retaliation (prior

EEO activity), as well as sexual harassment based on a hostile work

environment, when she was not promoted to a WG-08 position. On December

20, 1996, the agency made a certified Offer of Full Relief (OFR) to settle

complainant's complaint, and included in the OFR was an offer to pay

reasonable attorney's fees and costs from the date the formal complaint

was filed. Complainant's representative (CR) advised the agency by letter

dated January 16, 1997, that complainant agreed to accept the OFR and

that a request for attorney's fees would be submitted in accordance with

29 C.F.R. �1614.501(e)(2). Subsequently, CR submitted a fee petition to

the agency requesting attorney's fees totaling $9,190.71 for 61 hours of

services rendered during the period March 11, 1996, through January 6,

1997, at an hourly rate of $150.00, plus costs incurred of $40.71.

On January 28, 1997, the agency issued a final agency decision (FAD),

in which it granted CR attorney's fees in the amount of $2,929.50,

for 17.7 hours of work at an hourly rate of $150.00, and including

fees incurred preparing the fee petition. The agency did not dispute

the hourly rate requested by CR, but disallowed the 43.2 hours claimed

by CR for work performed prior to filing the formal complaint, on the

ground that attorney's fees are only authorized for services performed

after the filing of the formal complaint. The FAD also disallowed CR's

request for reimbursement of $40.71 in costs incurred, pursuant to 29

C.F.R. �1614.501. It is from this decision that complainant now appeals.

ANALYSIS AND FINDINGS

By federal regulation, an agency may award the applicant reasonable

attorney's fees, in accordance with existing case law and regulatory

standards, incurred in the processing of an EEO complaint. 64

Fed. Reg. 37644, 37659, (1999)(to be codified and hereinafter referred

to as 29 C.F.R. �1614.501(e). The fee awarded is normally determined

by multiplying the number of hours reasonably expended on the case by a

reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley

v. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. �1614.501(e)(2)(ii)(B). The

attorney requesting the fee award has the burden of proving, by specific

evidence, his or her entitlement to the requested amount of attorney's

fees and costs in the matter. Copeland v. Marshal, 641 F.2d 880, 892

(D.C. Cir. 1983).

Statutory attorney's fees may be recovered only for services rendered

after complainant has notified the agency that she is represented

by an attorney and has filed her formal complaint in the matter.

29 C.F.R. � 1614.501(e)(1)(iv); Clark v. Department of the Navy, EEOC

Appeal No. 01956234 (October 25, 1996); Erickson v. Department of the

Army, EEOC Appeal No. 01944011 (March 12, 1996). The Commission has held

that attorney's fees are not awardable for services rendered between the

time of notice and the time the complaint is filed. McKeel v. Dept. of

Energy, EEOC Appeal No. 01893703 (December 12, 1989). However,

fees may be paid for time expended by counsel to determine whether to

represent the complainant. Stauner v. Department of Agriculture, EEOC

Appeal No. 01890678 (April 13, 1989). The Commission has found that an

attorney may reasonably expend up to two hours for such determination.

Vincent v. Department of the Army, EEOC Request No. 05941012 (February

27, 1996).

In the instant case, complainant as a matter of record did not file

her formal complaint until July 2, 1996. As such, the agency properly

disallowed the 43.2 hours requested by CR for services performed on

behalf of complainant's claim beginning in March of 1996 and continuing

until the filing of the formal complaint. In so finding, we note that

agencies are not required to pay attorney fees for services performed

during the pre-complaint process, unless the Commission affirms on

appeal an Administrative Judge's decision finding of discrimination

after an agency takes final action by not implementing that decision,

which did not occur in the instant case. 64 Fed. Reg. 37,660 (1999) (to

be codified as 29 C.F.R. �1614.501(e)(1)(iv)); Clark, supra. However,

as the Commission allows an attorney fee up to two hours for time prior

to filing the formal complaint while the attorney determines whether

to accept the case, we award CR an additional two hours in compensable

attorney fees beyond the agency's determination, for time expended prior

to July 2, 1996. Vincent, supra.

The Commission notes that the agency awarded the full 17.7 hours of time

requested by CR after the filing of the formal complaint, from July

3, 1996 through January 6, 1997, but disallowed costs. An agency may

make payment of costs contingent on the provision of documentation to

support a claim for costs, such as bills for copying, telephone bills,

or receipts for mailings. Bernard v. Department of Veterans Affairs,

EEOC Appeal No. 01966861 (July 17, 1998). The record herein contains

insufficient documentation to support CR's claim for mileage, postage,

and photocopying costs claimed herein, and thus the agency properly

denied CR's request.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

MODIFY the final agency decision awarding attorney's fees as set forth

in the Order of the Commission, below.

ORDER (C1199)

The agency is ordered to take the following remedial actions:

(1) Pay to the complainant attorney's fees in the amount of $300.00,

that is, an additional two (2) hours at $150 per hour, in addition

to attorney's fees which may already have been paid to complainant.

The agency shall tender such payment in full to complainant no later

than thirty (30) calendar days after the date on which this decision

becomes final.

(2) The agency shall also pay to complainant reasonable attorney's

fees and costs incurred in pursuit of this appeal. Complainant's

representative shall provide the agency with all necessary documentation

of services rendered and costs incurred in connection with this appeal

within twenty (20) calendar days of the date on which this decision

becomes final. The agency may tender this payment separately, or together

with the payment specified in paragraph (1) of this Order. If this payment

is tendered separately, the agency shall tender it to complainant no

later than forty-five (45) calendar days after the date on which this

decision becomes final.

(3) 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 calculation of interest due on the award of attorney fees and

costs, and evidence that the corrective action has been implemented. The

report shall be submitted no later than thirty (30) calendar days after

the date on which the corrective action has been completed.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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:

March 28, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

___________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to

all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.

2 The Commission notes that complainant's representative has not made

specific contentions on appeal, while the agency requests that the appeal

be denied.