0120160955
07-24-2018
Rolland V.,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (National Park Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rolland V.,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120160955
Hearing No. 430-2011-00354X
Agency No. NPS100214
DECISION
On January 13, 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 February 29, 2016, 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 decision regarding attorney's fees and costs.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency improperly reduced his attorney's fees and costs by $3100.00.
BACKGROUND
At the time of events giving rise to his complaint, Complainant worked as a Park Ranger at the Agency's Blue Ridge Parkway facility in Blowing Rock, North Carolina. On June 28, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic), national origin (Cuban), and reprisal for prior protected EEO activity when:
1. On February 9, 2010, the Agency issued him a Letter of Warning;
2. On February 9, 2010, the Agency issued him a Letter of Reprimand;
3. From December 11, 2009, to February 9, 2010, the Agency denied him Firearms Instructor training, S-212 Chainsaw training, Field Training Evaluation Program training, and the opportunity to teach Use of Force training to other facilities;
4. On November 6, 2009, the Agency downgraded his performance appraisal;
5. In a meeting with the Chief on October 27, 2009, the Chief made negative comments regarding Complainant's work integrity that hindered his opportunity for promotion and upward mobility positions; and
6, On or about October 21, 2009, he was addressed with written and verbal disparaging remarks regarding his selection for a specific position.
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, and the AJ held a hearing on January 9, 2013, and issued a decision on April 19, 2013. The AJ found that Complainant did not demonstrate that he was subjected to discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant appealed the Agency's final order to the Commission. On September 11, 2015, the Commission issued a decision that affirmed the Agency's final order regarding claims 1, 2, 3, and 4. The decision also found that Complainant's claim of a hostile work environment failed. With regard to claims 5 and 6, however, the Commission found that management's actions were likely to deter employees from participating in the EEO process and thus constituted reprisal.2
As a result of the finding of reprisal discrimination for claims 5 and 6, the Commission found, among other things, that Complainant was entitled to an award of attorney fees. On January 13, 2016, Complainant's attorney submitted documentation for attorney's fees in the amount of $34,969.43. On February 29, 2016, the Agency issued a decision regarding Complainant's petition for attorney's fees. The Agency found, however, that there was:
insufficient evidence in the record to award Complainant's attorney's fees based on the information submitted. [Complainant's attorney'] petition is insufficient to establish the number of hours he expended on Complainant's case, the total cost of his work on the case, and whether the expended hours were for the Complainant's EEO complaint.
The Agency noted that Complainant's attorney's documentation referenced the wrong Complainant and case number. The Agency requested that Complainant submit supplemental information within thirty (30) days.
Thereafter, on March 9, 2016, Complainant's attorney submitted a revised itemized statement of fees. On April 14, 2016, the Agency issued a decision regarding the revised fee statement. The Agency noted that as of January 13, 2016, Complainant's attorney, claimed attorney's fees and costs in the amount of $34,369.43 for representation from April 13, 2011, to January 13, 2016. The record included an affidavit signed by the attorney, in which he indicated that he performed legal services in the matter of Complainant's EEO complaint from April 13, 2011, to May 1, 2013, at a rate of $350.00 an hour, and from May 1, 2013, to January 13, 2016, at a rate of $400.00 an hour.
The Agency's decision found that 9 hours and 30 minutes billed between May 17, 2013, and January 13, 2016, should have been billed at a rate of $350.00 an hour, for a total of $3,325.00, instead of $400.00, which would have totaled $3,800.00. In addition, fifteen (15) hours for travel should have been be billed at a rate of $175.00 an hour, for a total of $2,625.00. As such, the Agency found an entitlement for seventy-nine (79) hours and forty-five (45) minutes at the rate of $350.00 an hour for a total of $27,912.50; and fifteen (15) hours of travel time at the rate of $175.00 for a total of $2,625.00. The Agency also awarded $413.00 for travel expenses; $55.86 for meals; $263.07 for lodging for a total of $731.93. Therefore, the Agency found that Complainant's attorney was owed attorney's fees in the amount of $31,269.43. This, according to the Agency, reflected the legal work extended, the complexity of the case, the level of success, and the requisite skill needed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the Agency issued a decision on the fee petition this time granting fees as requested but arbitrarily reducing the hourly rate with no more explanation than that $350 per hour had been found reasonable in the past by the Commission and therefore that was correct even though several years had passed and the Complainant's affidavit and supporting materials supported the higher rate. Complainant attorney notes that the Commission has acknowledged the potential for rates to rise in cases that extend over several years including from $350 per hour to $400 per hour, and cites the decision in Bok T. v. SSA, EEOC Appeal No. 0720150014 (Mar. 31, 2016) as support for his position. He also submits a May 2, 2016 Administrative Judge's decision regarding attorney's fees in an unrelated case where, according to Complainant's attorney, a $400.00 per hour rate was approved. Complainant's attorney argues that the instant case should have been over some time ago but that the Agency insisted on dragging it out to argue about matters it knows it has no basis to challenge.
ANALYSIS AND FINDINGS
Attorneys' fees are 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 Complainant's attorney has not provided evidence which supports his request that his hourly rate should be increased from $350.00 per hour to 400.00 per hour. While we agree that this case has been ongoing for a long time, we find however, that part of the problem stemmed from Complainant's attorney's own mistakes regarding his submission. We also note that other than disagreeing with the Agency's determination, Complainant's attorney has not shown that the Agency's deductions were unwarranted or not reasonable. Therefore, we find that Complainant has not established that the Agency's award of $31,269.43 was inappropriate or not reasonable.3
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision regarding attorney's fees and costs.
ORDER
To the extent that it has not already done so, the Agency is ORDERED to take the following remedial action, within one hundred and twenty (120) calendar days of the date this decision is issued:
Pay Complainant attorney fees and costs in the amount of $31,269.43.
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 verifying that the corrective action has been implemented.
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 (S0610)
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 (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
_7/24/18_________________
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 Complainant v. Department of Interior, EEOC Appeal No. 0120132365 (Sep. 11, 2015).
3 We are not persuaded by Complainant's reliance on our decision in Bok T. v. SSA, EEOC Appeal No. 0720150014 (Mar. 31, 2016). In that decision, the Attorney, in seeking a fifty ($50) increase in his fee, established that in 2012, an Administrative Judge awarded him attorney's fees at a rate of $400 per hour and since that time he had gained additional experience and honors. Moreover, the record indicated that pursuant to a recent Arbitration Award, he was awarded an hourly rate of $450. In the present case, Complainant's attorney is seeking an increase based merely on the passage of time. We also note that the May 2, 2016, Administrative Judge's decision that Complainant's attorney submitted on appeal does not discuss the specific amount that he charged.
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