0120161017
05-29-2018
Ramon L.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ramon L.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120161017
Hearing No. 410-2014-00150X
Agency No. ATF201300686
DECISION
On January 21, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 23, 2018, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) finding of discrimination and award of attorney's fees and costs.
ISSUE PRESENTED
The issue presented in this case is whether the AJ properly reduced Complainant's attorney's fees and costs by 40%.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Group Supervisor, GS-14, Arson and Explosives Group ATF's Atlanta Field Division in Macon, Georgia. On May 8, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, and subjected him to a hostile work environment when:
1. On May 9, 2013, in a verbal meeting and in an email distributed on May 13, 2013, by the Special Agent in Charge (SAC), Atlanta Field Division, [Complainant was] notified that [he] would be involuntarily reassigned to Group II (Arson and Explosives Section) despite the SAC's promise not to reassign [him];
2. On May 17, 2013, during a meeting with the SAC in which [Complainant] informed him of his need to receive medical treatment; and as a result of his prior EEO activity with the prior management of Atlanta Field Division, the SAC made inappropriate comments in response to Complainant, stating "This was B.C. (before Chris), and You need to move on";
3. On or about June 20-25, 2013 [Complainant] received a series of phone calls and emails from the SAC and the ASAC advising that due to the fact that Complainant requested sick leave involving more than three consecutive days, Complainant would have to relinquish his duty firearms for the period of time that he would be on sick leave; and would be required to provide medical documentation in order to return to work;
4. On June 25, 2013, Complainant was issued a Letter of Reprimand. Complainant alleges that the Letter of Reprimand was posted in his official personnel file prior to him having an opportunity to respond; and
5. On July 2, 2013, management in the Atlanta Field Division allegedly released sensitive and confidential information concerning adverse personnel actions against Complainant and Complainant's personal medical information was allegedly discussed and released to subordinate employees.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Prior to the hearing, the Agency filed a Motion for a Decision Without a Hearing. In Complainant's opposition to the Agency's Motion, he withdrew claims 2 and 5 and his hostile work environment claim. The AJ denied the Agency's Motion. The AJ held a hearing on January 22, 2015, and issued a decision finding that the Agency retaliated against Complainant when he was reassigned from the Field Intelligence Group to the Arson and Explosives Group in May 2013 (claim 1). The AJ found that the Agency did not retaliate against Complainant when management instructed him to relinquish his duty issued firearms (claim 3) and he received a letter of reprimand for failing to follow instructions (claim 4). The AJ found that Complainant was entitled to compensatory damages and attorney's fees.
A hearing was held regarding damages. In the Award of Damages, Complainant requested $100,000 nonpecuniary compensatory damages and $146.411.19 in attorney's fees. Complainant was awarded $20,000.00 in nonpecuniary damages2 and $87,846.72 in attorney's fees and costs, which was a 40% reduction in the total lodestar amount requested by Complainant. In reducing the amount, the AJ took into consideration the following factors: (1) Complainant's limited success on his claims, (2) Complainant's Fee Petition contained numerous instances which might be considered excessive, duplicative, or unreasonable time expended; (3) Complainant's case was a retaliation claim, and did not offer a complex or novel issue; and (4) attorney travel time was to be reduced by 50% of the regular rate charged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged with regard to claim 1. The Agency also implemented the AJ's award of nonpecuniary compensatory damages and attorney's fees and costs.
CONTENTIONS ON APPEAL
On appeal, Complainant notes that he is only appealing the attorney's fees decision. He contends, among other things, that the AJ's reduction in attorney's fees is contrary to law and a violation of public policy. Complainant also argues that the attorneys' fees portion of the Award must be rejected, and he should be awarded all of the fees and costs he incurred in vindicating his and other's right to be free from retaliation. In the Fee Petition, Complainant requested fees and costs totaling $146.411.19 and even though the AJ determined that Complainant was the prevailing party, she reduced the amount awarded by 40%, to $87,846.72.
Complainant maintains that the AJ erred and abused her discretion in finding that Complainant had limited success. He also maintains that the AJ erred in finding that: 1) the fee petition contained numerous instances that "might be considered" excessive, duplicative or unreasonable time expended (though she gave only one example); 2) the case did not offer a complex or novel issue; and 3) the rate for an attorney's travel time should be reduced by 50% from the regular rate charged.
Further, Complainant contends that if the decision stands, it will discourage advocates from seeking full relief for victims of retaliation. The AJ's main justification for reducing the total lodestar amount was the fact that she awarded Complainant $20,000 in compensatory damages, compared to the $100,000 requested, which she erroneously interpreted as "achiev[ing] a limited amount of success." Finally, Complainant argues that his successful and unsuccessful claims were inextricably intertwined, so therefore he is entitled to an award of fully attorney's fees. In sum, Complainant argues that to say this was a simple retaliatory reassignment fails to consider the agency involved; the identity, complicity, and senior level of the responsible management officials; and the complex nature of the Agency's machinations in effecting its retaliatory actions. Thus, the fees should not be adjusted downward in this case.
In response, the Agency argues that Complainant only achieved a limited degree of success. In applying the 40% across the board reduction, the AJ considered the degree of success obtained by Complainant and attorney fees are not recoverable for work on unsuccessful claims. Further, the Agency re-iterates that Complainant's fee petition contained instances that may be considered excessive, duplicative, or unreasonable time expended. Complainant's case did not present a complex or novel issue. The AJ did not abuse her discretion by taking into consideration that an attorney's travel time should be reduced by 50%.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Attorneys' fees will be computed by determining the lodestar, the number of hours reasonably expended multiplied by a reasonable hourly rate. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 11, � VI.F.1 (Aug. 5, 2015). The number of hours should not include excessive, redundant, or otherwise unnecessary hours. Id. A reasonable hourly rate is based on the "prevailing market rates in the relevant community" for attorneys of similar experience in similar cases. Id. The hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims. EEO MD-110, Ch. 11, � VI.F.1. Successful and unsuccessful claims are not fractionable when they are closely intertwined and involve the same common core of facts. See Mannon v. U.S. Postal Service, EEOC Appeal No. 0720070074 (Apr. 4, 2012).
A reasonable fee award may be assessed in light of factors such as: (1) the time required (versus time expended) to complete the legal work: (2) novelty or difficulty of the issues: (3) the requisite skill to properly handle the case; (4) the relief sought and results obtained: and (5) the nature and length of the attorney-client relationship. See Cerny v. Dep't of the Army, EEOC Request No. 05930899 (Oct. 19, 1994).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's award is supported by the evidence in the record. We find that other than Complainant's conclusory arguments, no evidence has been presented which demonstrates that the AJ abused her discretion in reducing attorney's fees by 40% across the board. We agree that the evidence shows that Complainant was only successful with regard to one of his claims and attorney fees are not recoverable for work on unsuccessful claims.
Further, we agree with the AJ that the case did not present novel issues, nor was the one successful claim so inextricably intertwined with the unsuccessful claims that Complainant would be entitled to an award of full attorney's fees. We also agree that the fees for travel time were reduced in accordance with the Commission's longstanding case law and guidance, and other than disagreeing with the practice, Complainant has not provided any evidence which shows that this longstanding approach should be changed in this case. Finally, we find no persuasive evidence that the AJ erred in finding that the Fee Petition contained numerous instances which might be considered excessive, duplicative, or unreasonable time expended.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision.
ORDER
To the extent that it has not already done so the Agency is ORDERED, within (120) one hundred and twenty days of the date of this decision, to pay Complainant attorney's fees in the amount of $87,846.72.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (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
_5/29/18_________________
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 The amount of Complainant's nonpecuniary damages are not at issue and therefore will not be discussed in this case.
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