[Redacted], Tessa G., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 23, 2021Appeal No. 2020003908 (E.E.O.C. Sep. 23, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tessa G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020003908 Agency Nos. 1F-946-0048-01; 4F-945-0038-98; 1F-946-0064-98 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a) concerning her entitlement to attorney's fees. ISSUE PRESENTED The issue presented on appeal is whether Complainant is entitled to attorney's fees and costs in the amount of $57,816.11. BACKGROUND At the time of events giving rise to this complaint, Complainant worked at the Agency's Processing and Distribution Center (P&DC) in Oakland, California. Complainant filed complaints with the Agency in which she alleged that she was subjected to a hostile work environment and discrimination based on her sex (female), race (African-American), disability (physical), and in reprisal for her prior protected EEO activity regarding: (1) her non-selection for promotion to the position of Labor Relations Specialist, EAS-17, on October 6, 1997; (2) harassment and termination from her limited duty assignment on June 18, 1998; and (3) harassment and elimination of her permanent duty job offer on Tour 2, and being told to report to Mail Processing on Tour 3. 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. 2020003908 2 An EEOC Administrative Judge (AJ) subsequently issued a decision finding discrimination in Complainant’s favor on the bases of sex, race, disability, and reprisal. The Agency fully implemented the AJ's decision. However, Complainant challenged the relief provided by the AJ in an appeal to the Commission. In EEOC Appeal No. 0120072120 (January 6, 2010), the Commission ordered the Agency to, among other things, provide Complainant with a “clear, detailed ‘plain language’ explanation of its back-pay calculations, including the calculations of all benefits provided to complainant.” Dissatisfied with the Agency's compliance, Complainant submitted a Petition for Enforcement to the Commission on September 15, 2011. In EEOC Petition No. 0420120009 (September 13, 2013), the Commission ordered the Agency to provide Complainant with a “clear, plain language explanation of whether it has paid the earnings on [Complainant's] TSP contributions.” Additionally, the Commission ordered the Agency to: compensate Complainant for increased tax liability; recalculate Complainant's back-pay award and provide a plain language statement of its calculations; conduct a supplemental investigation of the selectee's salary and “personal absence time” during the back-pay period; and to address in writing Complainant's concerns regarding notice to the Office of Personnel Management (OPM) to recalculate retirement benefits accurately. Following its supplemental investigation, the Agency concluded that the inquiry demonstrated that it was in full compliance with the Commission’s order and remedies, and that no further action was required. However, in EEOC Appeal No. 0120141345 (December 28, 2016), the Commission determined that Complainant was entitled to attorney's fees because the Agency had failed to provide a clear, plain language explanation regarding TSP calculations. The Commission therefore ordered the Agency to determine Complainant's entitlement to attorney's fees only related to the TSP issue.2 On or about May 21, 2018, Complainant submitted a Verified Statement of Fees and Costs, seeking: $42,460 for attorney's fees, at a rate of $420 per hour; $10,780 for services rendered by a law clerk, at a rate of $200 per hour; and $5,101.30 in costs. In a decision dated June 25, 2018, the Agency reduced the amount of fees requested, finding that Complainant's attorney's fees statement included duplicate and excessive billing, and unreasonable hourly rates. Specifically, the Agency reduced the attorney’s hourly rate to $300 per hour and the law clerk rate to $100 per hour, and only awarded ten percent of the hours requested. The Agency also reduced the requested costs by only granting ten percent of the costs claimed by Complainant. Complainant appealed the Agency’s determination. 2 On April 5, 2018, the Commission denied the Agency's Request for Reconsideration in EEOC Request No. 0520170164. 2020003908 3 In EEOC Appeal No. 0120182836 (November 21, 2019) the Commission modified the Agency’s June 25, 2018, decision, noting that the fee petition reflected $42,460 in services performed by Complainant's attorney, $5,390 in law clerk services,3 and $5,101.30 in costs, resulting in a total claim of $52,951.30 in attorney's fees and costs. The Commission applied a twenty percent reduction to the claimed amounts, finding that Complainant was entitled to $42,361.04 in attorney's fees and costs associated with the TSP issue. The Commission therefore ordered the Agency to pay Complainant $42,361.04 in attorney's fees and costs. The Commission further issued the following order regarding attorney’s fees associated with EEOC Appeal No. 0120182836: If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he 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 receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. On December 8, 2019, Complainant submitted a Verified Statement of Attorney’s Fees and Costs (Fee Petition) to the Agency. Therein, Complainant, through her attorney, requested a total of $57,816.11 in attorney’s fees and costs related to EEOC Appeal No. 0120182836. In April 2020 and earlier, Complainant, through her attorney, informed the Agency that it was required to issue a decision on her Fee Petition and had not done so. In response, in an email to Complainant’s attorney, an Agency representative wrote: I started to compose a response to all your nonsense rhetoric . . . but, frankly, you’re just not worth the time or effort. I’m so pleased to learn that you have retired from practicing law and no one in my office will have to deal with you again. . . . CONTENTIONS ON APPEAL On appeal, Complainant, through her attorney, maintains that the Agency never issued a final agency decision regarding her December 8, 2019, Fee Petition. Complainant therefore requests that, rather than remand this matter to the Agency for a final decision, that the instant appellate decision address her December 8, 2019, Fee Petition. 3 The Commission found that the law clerk's work should be reimbursed at a rate of $100 per hour, and therefore reduced the amount requested from $10,780 to $5,390. 2020003908 4 The Agency did not respond to Complainant’s brief on appeal.4 ANALYSIS AND FINDINGS By federal regulation, the agency is required to award attorney's fees 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)(l)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the numbers 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. Eckerhard, 461 U.S. 424 (1983). There is a strong presumption that the lodestar amount represents the reasonable fee, though in limited circumstances, this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency. 29 C.F.R. § 1614.501(a)(2)(ii)(B). However, any party seeking to deviate from the lodestar has the burden of justifying the propriety of such a deviation. See EEO Management Directive-110, at 11-8. Further, Commission's regulations pursuant to 29 C.F.R. § 1614.501(e)(2)(ii)(A) provide that an agency shall issue a decision determining the amount of attorney's fees or costs due within 60 days of receipt of the statement and affidavit in support of a request for fees or costs. In the instant case, the Agency did not issue a decision on Complainant’s request for attorney’s fees and costs.5 The Agency also failed to submit any response to the instant appeal. As noted above, even assuming that the Agency believed a reduction in the lodestar should be implemented, it is the Agency that bears the burden of showing why the decrease is appropriate. EEO MD-110, at 11-1; Sheila Hendley, Complainant, EEOC DOC 01A43034, 2005 WL 819537, at *1 (Mar. 30, 2005). The Commission declines to presume the Agency’s assessment of the fees requested or assume the Agency’s burden of establishing evidentiary support for any modification to the amount sought by Complainant’s attorney. Therefore, the Agency is ordered to promptly pay the full amount of the attorney's fees and costs requested by Complainant in her Fee Petition. 4 The Agency submitted a Compliance Report showing payment of the prior award of attorney’s fees in the amount of $42,361.04. However, the prior award of attorney’s fees is not at issue in this current appeal. 5 The Commission, in its discretion, may award the full amount of requested attorney's fees where a federal agency is untimely in issuing a final decision on a fee request made pursuant to the provisions of its regulations. See Nannie D. v. Dep’t of Army, EEOC Appeal No. 0120170074 (Mar. 21, 2019); Dorathy M. v. Dep't of Transp., EEOC Appeal No. 0120143074 (Feb. 23, 2016); Mason v. Dep’t of the Interior, EEOC Request No. 05930678 (Jan. 14, 1994). 2020003908 5 CONCLUSION Therefore, after a careful review of the record, including Complainant's contentions on appeal, we grant Complainant's request for attorney's fees and costs and REMAND this case to the Agency for remedial action in accordance with the Order below. ORDER Within thirty (30) calendar days of the date this decision is issued, the Agency shall submit payment to Complainant's attorney in the amount of $57,816.11. The Agency shall submit a report of a copy of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall include documentary evidence that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2020003908 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020003908 7 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 September 23, 2021 Date Copy with citationCopy as parenthetical citation