EEOC Appeal Nos. 0120170599 & 0120170600
04-10-2018
Sallie M. & Alexandria P. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sallie M.,1
Complainant 1,
and,
Alexandria P.,
Complainant 2,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal Nos. 0120170599 & 01201706002
Hearing Nos. 490-2010-00012X & 490-2010-00013X
Agency Nos. 4H-370-0057-09 & 4H-370-0056-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainants' appeals from an EEOC Administrative Judge's Order Awarding Fees and Costs, dated September 27, 2016, relating to their equal employment opportunity (EEO) complaints claiming 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.
ISSUE PRESENTED
The sole issue on appeal is whether the EEOC Administrative Judge erred in not applying the Laffey Matrix to determine the hourly rate in awarding the Complainants a total of $325,944.50 for attorney's fees.3
BACKGROUND
On September 25, 2014, the EEOC Administrative Judge (AJ) assigned to this matter found liability against the Agency in two complaints of sexual harassment involving the Greeneville, Tennessee, Post Office, and awarded the two Complainants monetary relief and other damages. The complaints were adjudicated by an AJ from EEOC's Memphis, Tennessee, District Office.
As part of the award, Complainants were granted attorney's fees and costs to be determined at a later date. Following the submission of a petition for fees filed by Complainants' attorneys, and extensive briefing on the issue, the AJ issued an Order Awarding Fees and Costs, dated September 27, 2016, awarding attorney's fees to the two complainants totaling $325,944.50.
A final order on the award was not issued by the Agency, so the AJ's decision became final pursuant to 29 C.F.R. � 1614.109(i). The instant appeal followed.
On appeal, the issue is whether the AJ erred in setting the hourly rates for counsel at rates charged by Tennessee attorneys of similar skill and experience. Complainants retained counsel from the Washington, D.C. area and are seek the application of the Laffey Matrix4 to the hourly rates of counsel.
ANALYSIS AND FINDINGS
Commission precedent is well-established that a successful complainant in the administrative EEO process is entitled to be reimbursed for attorney's fees incurred at a reasonable hourly rate based on "prevailing market rates in the relevant community" for attorneys of similar experience in similar cases. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 11, � VI.F.1 (Aug. 5, 2015). Here, the parties differ on the question of what is the appropriate "community" for determining the prevailing attorney's fees rate. Complainants seeks reimbursement at rates charged in the Washington, D.C. area as detailed in the Laffey Matrix, where Complainants' counsel maintains offices. The Agency argued for, and the AJ applied, the prevailing attorney rates in the relevant Tennessee area, the state where Complainants were employed by the Agency and the actions underlying their complaints occurred.
The Commission has held that if a party does not find counsel readily available in the locality of the case with the necessary skill and experience, it is reasonable for the party to go elsewhere to find an attorney. See Harden v. Social Security Administration, EEOC Appeal No. 0720080002 (Aug. 12, 2011) (citing Southerland v. U.S. Postal Service, EEOC Appeal No. 01A05403 (Oct. 16, 2002)). The burden is on the agency to show that a complainant's decision to retain out-of-town counsel was unreasonable. See id. The Commission addressed this issue in Taber v. United States Postal Service, EEOC Appeal No. 0120110658 (June 20, 2012). That case arose in North Carolina, which the Agency argued was the relevant community for determining prevailing attorney's fee rates. As in the instant case, the complainant argued that the Washington, D.C. area, where the complainant's counsel's practice was located, was the relevant geographic area. The Commission held that the Agency bore the burden of proving that hiring out-of-state counsel was unreasonable and found that the Agency had successfully met that burden by showing that attorneys with relevant experience were available to represent the complainant in North Carolina.
Here, the evidence of record shows that Complainants initially retained a local Tennessee attorney. However, it appears Complainants lost confidence in this attorney and went on to retain a law firm from the Washington, D.C. area with experience handling EEO cases brought by federal employees.
The Agency contends that Complainants failed to make diligent efforts to locate local counsel. It provided evidence to the AJ of the availability of local attorneys with relevant experience that included listings of attorneys practicing employment discrimination law in the largest metropolitan areas in Tennessee closest to Greeneville (Nashville, Chattanooga and Knoxville). The Agency also submitted a recent opinion from the United States District Court for the Eastern District of Tennessee, where one of the attorneys on the Agency's listing (described above) secured a six-figure verdict for her client in a Title VII/Rehabilitation Act against a federal agency, and a substantial attorney's fee award.5 Finally, the Agency submitted an affidavit from a Chattanooga attorney, with experience in handling Title VII cases for both employers and employees.
Based on the evidence presented by the Agency, the AJ was persuaded, and we agree, that the Agency met its burden of establishing that Complainants could have found alternative counsel in Tennessee with suitable experience. As the AJ determined, Complainants provided inadequate evidence of their search for another attorney in Tennessee, noting they failed to even assert that they "actually contacted any other firms in the eastern part of Tennessee, the Tennessee Bar, the University of Tennessee Law School, the United States District Court, or [the EEOC's Memphis office], which maintains an attorney referral list." The AJ further noted that Knoxville was only 70 miles from Greeneville, and is "a large metropolitan area with a highly respected law school at the University of Tennessee." Of particular significance, the AJ cited to two notable local attorneys known to her who specialized in employment and labor law - one had presented before the Supreme Court and the other was the attorney identified by the Agency who had recently prevailed in a significant Title VII case against a federal agency. The AJ also indicated that she relied on her own years of experience with the local legal community, and her observations of relevant local experience.
After careful consideration of the record and the arguments submitted on appeal, we find the AJ's Order Awarding Fees and Costs, dated September 27, 2016, was appropriate and reasonable.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's award of attorneys' fees. The matter is remanded to the Agency for compliance with the Order set forth below.
ORDER
If it has not already done so, within sixty (60) calendar days of the date this decision is issued, the Agency shall issue Complainants' payment for attorney's fees in the amount of $325,944.50, as well as the uncontested costs of $62,207.39.
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
___4/10/18_______________
Date
1 This case has been randomly assigned pseudonyms which will replace Complainants' names when the decision is published to non-parties and the Commission's website.
2 We exercise our discretion to consolidate the appeals filed by both Complainants as they concern the identical issue and the cases were consolidated at the hearing stage. 29 C.F.R. � 1614.606.
3 The AJ also awarded Complainants $62,207.39 in legal costs. However, that amount is not being contested on appeal.
4"The Laffey Matrix consists of hourly rates for attorneys of varying experience levels and paralegals/law clerks that were prepared by the Civil Division of the United States Attorney's Office for the District of Columbia (USAO) to evaluate requests for attorney's fees in civil cases in District of Columbia courts. The matrix is intended for use in cases in which a fee-shifting statute permits the prevailing party to recover "reasonable" attorney's fees. See, e.g., 42 U.S.C. � 2000e-5(k) (Title VII of the 1964 Civil Rights Act); 5 U.S.C. � 552(a)(4)(E) (Freedom of Information Act); 28 U.S.C. � 2412(b) (Equal Access to Justice Act). The matrix has not been adopted by the Department of Justice generally for use outside the District of Columbia, or by other Department of Justice components, or in other kinds of cases. The matrix does not apply to cases in which the hourly rate is limited by statute. See, 28 U.S.C. � 2412(d)." (USAO Attorney's Fees Matrix - 2015-2018 - Notes).
5 According to the AJ, this attorney's website indicates her firm is located in Knoxville, and dedicates "most of [its] practice to representing employees," including "federal government employees."
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