01982768
10-18-1999
Paula Coffman Tilden, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Paula Coffman Tilden, )
Appellant, )
) Appeal No. 01982768
v. ) Agency No. 93-2240
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
On February 24, 1998, appellant timely appealed to this Commission from
the final decision of the agency dated January 29, 1998, concerning
an award of attorney's fees for services performed in the underlying
claim.<1> Appellant's representative submitted a fee petition to the
agency on December 16, 1997, for $16,706.00 representing 69.8 hours of
services performed at an hourly rate of $150.00; 34.4 hours of service
at an hourly rate of $100.00; 47.6 hours of service at an hourly rate of
$60.00; and costs ($299.45).<2> The agency awarded appellant $12,842.00
in total. The issues presented herein are whether the agency properly:
(1) reduced the paralegal's requested hourly rate from $60.00 to $40.00;
(2) reduced the number of hours performed by both the associate counsel
and by the paralegal by 50%; and (3) denied costs.<3>
By regulation, a federal agency must award attorney's fees, in accordance
with existing law, for the successful processing of an EEO complaint.
See 29 C.F.R. � 1614.501(e). The fee award is ordinarily determined
by multiplying a reasonable number of hours expended on the case by
a reasonable hourly rate, also known as a lodestar. See 29 C.F.R. �
1614.501(e)(2)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424 (1983);
Blum v. Stenson, 465 U.S. 886 (1984); City of Burlington v. Dague,
112 S. Ct. 2638 (1992).
Part I: REASONABLE HOURLY RATE
The Supreme Court has held that the reasonable hourly rate for statutory
fee cases is to be determined by the "prevailing market rates in the
relevant community." Blum, 465 U.S. at 895. The burden is on appellant
to produce satisfactory evidence, in addition to the attorney's own
affidavit, that the requested rates are consistent with those in the
community for similar services by attorneys with comparable skill,
experience, and reputation. Id. The Commission views the attorney's own
customary billing rate as the most reliable evidence of prevailing rates.
See Cooley v. Department of Veterans Affairs, Request No. 05960748
(July 30, 1998).
The agency found that the $60.00 hourly rate for the paralegal's services
was excessive and that appellant's representative failed to provide
sufficient information regarding the paralegal's experience, reputation
or ability. However, appellant's representative's affidavit states that
the paralegal was certified in 1992 after completing a course of study.
On appeal, appellant contends that paralegal fees in Fresno, California
range from $55.00 to $75.00 per hour but fails to meet her burden of
producing sufficient documentary evidence in support of this contention.
However, the Commission notes that the agency found the $60.00 hourly
rate excessive given that experienced staff attorneys in the agency's
office are �usually paid less than $40.00 per hour.� We find the
agency's reasoning untenable in so far as there is no comparison between
the rate at which a private sector paralegal is billed and the salary
earned by a federal sector attorney. We also find that the paralegal
had approximately two years of experience when she began working on
appellant's claim. After our own independent review, the Commission
disagrees with the agency that the paralegal's hourly rate was excessive.
Part II: NUMBER OF HOURS REASONABLY EXPENDED
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, a fee petition must contain sufficiently
detailed information about the work done to permit determination of the
correct award. See National Ass'n 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,
The agency determined that it was not reasonable that the paralegal spent
47.6 hours prior to the hearing preparing this case. We note that based
on the agency's calculation, the lead attorney spent 56.1 hours on this
case prior to the hearing. Combining these hours, approximately 2� work
weeks (103.7 hours) were spent preparing for the formal administrative
hearing wherein appellant prevailed on her claim of retaliation.
The paralegal's tasks primarily included conferences with appellant and
witnesses; the preparation of memoranda for the lead attorney concerning
witness statements; and the preparation of a trial book for the hearing.
The Commission finds it reasonable that the paralegal spent approximately
six work days performing these tasks, and we conclude that the agency
erred in reducing her hours.
However, the Commission agrees with the agency that the 34.4 hours
expended by the associate counsel preparing the appeal was excessive.
Appellant contends that the associate counsel had to prepare twice,
once on appeal and again in response to the agency's request for
reconsideration. However, this contention is contradicted by the fee
petition which indicates that all of the time expended by the associate
counsel was for the preparation of the appeal. Given that the EEOC
Administrative Judge's recommended decision finding retaliation set
forth the facts and referenced the relevant statutes and regulations,
the Commission finds that it should not have taken an associate with
approximately seven years of experience 34.4 hours to prepare a 14� page
brief. Accordingly, we find that the agency's 50% reduction of the number
of hours expended by the associate was proper. See Bernard v. Department
of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998).
Part III: 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. Davis v. Department of the
Treasury, EEOC Request No. 05901213 (March 1, 1991). The record herein
contains insufficient documentation to determine whether appellant's
claim for the telephone, postage, photocopying, mileage and parking
costs is reasonable. We agree with the agency's determination that
appellant's claim for costs is unsupported by receipts and/or bills.
However, we disagree with the agency's blanket denial of all costs and
conclude that a reasonable expectation of the amount of costs claimed
is 50% of the claim presented herein. See Bernard, supra.
Part IV: CONCLUSION
Based on the above, the Commission concludes that the agency erred in
finding that:(1) the requested hourly rate of $60.00 for the paralegal's
services was unreasonable; and (2) the number of hours the paralegal
expended in the successful prosecution of this claim was excessive.
The Commission also concludes that the agency erred when it denied
appellant all costs. However, the Commission agrees with the agency's 50%
reduction of the hours expended by the associate counsel in preparation
of the appeal. Therefore, it is the decision of the Commission to MODIFY
the agency's final decision and to award appellant a fee as set forth
in the ORDER below. This matter is AFFIRMED in part; REVERSED in part;
and REMANDED to the agency for further processing in accordance with
this decision and the applicable regulations.
ORDER
The agency is ORDERED to pay appellant, within thirty (30) days of the
date that this decision becomes final, an additional attorney's fee
of $2,053.72. This figure represents the sum of: (1) the difference
between the 47.6 hours not previously compensated at the hourly rate
of $60.00 and the 23.8 hours previously compensated at the lower hourly
rate of $40.00; and (2) $149.72 in costs.
A copy of the agency's letter to appellant enclosing a check for payment
of the determined attorney's fees as well as the new final agency
decision, must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
October 18, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 In the underlying claim, appellant
alleged unlawful retaliation in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
2 The agency received a stack of billing records from appellant's
representative. The agency attempted to total the hours of services
performed by appellant's representative, an associate counsel and
a paralegal. These totals represent the agency's findings after a
laborious examination of the billing records. These findings do not
reconcile with the $16,706.00 claimed.
3 We note that appellant states that her attorney withdrew as her legal
representative because she refused to pay him any additional money.
Therefore, she filed this appeal pro se.