U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sallie M.,
(Complainant 1),
and
Alexandria P.,1
(Complainant 2),
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Request Nos. 0520180407 & 0520180408
Appeal Nos. 0120170599 & 0120170600
Hearing Nos. 490-2010-00012X & 490-2010-00013X
Agency Nos. 4H-370-0057-09 & 4H-370-0056-09
DECISION ON REQUEST FOR RECONSIDERATION
On May 14, 2018, the complainants jointly timely requested that the Equal Employment
Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal Nos.
0120170599 & 0520180408 (April 10, 2018). EEOC regulations provide that the Commission
may, in its discretion, grant a request to reconsider any previous Commission decision issued
pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).
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.
0520180407 & 0520180408
2
BACKGROUND
The Complainants’ law firm represented the complainants throughout extensive discovery,
motions work, and a 12-day hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). Complainants prevailed on their sexual harassment and reprisal claims
and obtained substantial relief.
In its fee petition, as supplemented, the complainants’ law firm requested to be compensated for
1,930.10 hours of work at varying billing rates for paralegals, law clerks, and attorneys (rates
varied for attorneys based on years of experience). The rates were derived from the “Laffey” rate
matrix prepared by the U.S. Attorney’s Office for the District of Columbia. Under the matrix, the
rate for paralegals and law clerks is the same. The law firm requested a total of $557,752.50 in
fees for hours spent representing Complainants 1 and 2, separately and jointly.
The AJ awarded a total of $325,944.50 in attorney fees. In so doing, she referred to some of her
analysis and findings in her prior sanctions fee decision, and for ease of reading, as appropriate,
we will treat the referenced findings as part of the later decision. The AJ decided to use hourly
rates charged in the local area, not the Washington, D.C. Laffey rates. She determined that
Knoxville, Tennessee was the appropriate local market because, in part, this was where the
Complainants requested the entire hearing be held and where it was moved. The AJ was
unpersuaded by the argument local attorneys lacked the requisite legal acumen to practice before
the Commission and more specifically, to render competent and effective representation in the
instant case, which was not complex, their argument was specious. The AJ noted a Knoxville
attorney identified by the Agency whose website indicated that she was in practice since 1992, and
mostly represented employees, including federal government employees, and who (in a Title VII
case in 2008) obtained a six-figure verdict for her client and over a half a million dollars in attorney
fees after an eight-day jury trial.
The AJ heard testimony at the hearing by Complainants 1 and 2 on their efforts to find local
experienced counsel and found it lacking. The AJ found that had the complainants made a diligent
but unsuccessful search for local experienced counsel, then perhaps the Laffey rate matrix would
apply.
The AJ deducted the fees previously awarded as a sanction (which were not paid when the fee
petition was fully briefed). The AJ observed that the law firm charged full hourly rates for the
travel time (during business hours) of attorneys and staff, but since it was only reimbursable at
half their hourly rates under Commission case law, she reduced the rate by 50% for travel time she
could segregate. The AJ then applied a 10% across the board reduction to fee petition to arrive at
the number of hours reasonably expended. The AJ gave some examples for why she did this. She
wrote that some entries were block billed, so she could not extrapolate the travel time in those
entries from the other time. She found such block billing, of which the above was only one
example, was another reason for the across the board reduction. The AJ found that the
complainants’ law firm spent excessive hours engaging in lengthy research on damages, even
though it is expert in all aspects of employment law litigation and spent excessive hours, referring
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3
to Agency argument, by bringing additional attorneys “to the table.” In this regard, the Agency
argued in part that even though an attorney with a lower hourly rate conducted a deposition in
March 2010, and prepared for doing so with the assistance of a paralegal in February and March
2010, a more senior attorney with a higher billing rate also billed for preparing for the same
deposition. The AJ wrote that she spent considerable time analyzing the billing entries of the law
firm’s voluminous fee petition, and was confident that there was unnecessary, excessive, and
redundant work performed and billed.
The AJ reduced the hourly rate of four law firm staff identified as attorneys to the paralegal rate
because the fee petition contained no sworn biographical information on them, including their law
schools, where and when they were admitted to the bar, and how long they had been practicing.
The AJ reduced the hourly rate of law clerks, who she presumed were law students, to 25% of the
paralegal rate. Of the 1,930.10 hours billed, the AJ determined that 44.82 involved the above four
identified attorneys, and law clerks.
On appeal, the complainants, by and through their law firm, argued that the AJ should have used
the Washington, D.C. Laffey rates, that the 10% across the board reduction was unjustified,
acknowledged not including the missing biographical affidavits, submitted three and argued this
cured the defect, and argued that law clerks and paralegals should be paid at the same rate.
In our previous decision, we affirmed the AJ’s decision. We found that if a complainant does not
find counsel readily available in the locality of the case with the necessary skill and experience,
under Commission case law it is reasonable for the party to go elsewhere to find an attorney, and
the burden is on the agency to show that a Complainants’ decision to retain out-of-town counsel
was unreasonable. We agreed with the AJ that the Agency met its burden of establishing that
Complainants could have found alternate counsel in Tennessee with suitable experience. We
recounted the AJ’s observation in part that Knoxville was a large metropolitan area with a highly
respected local law school and found that the Complainants’ search for local counsel was
insufficient. The Complainants request for reconsideration followed.
In their request for reconsideration, the Complainants, by and through their law firm, reiterate the
arguments they previously made that the burden is on the Agency to prove it was unreasonable for
them to retain non-local counsel, and past Commission cases applying this burden show the
Agency did not meet it. They also argue that the previous decision did not address the remaining
three attorney fees issues raised in their appeal. In opposition to Complainants’ request, the Agency
argues that the Complainants failed to meet the criteria for reconsideration.
ANALYSIS AND FINDINGS
Since the Complainants testified at the hearing about their efforts to retain local counsel, the AJ’s
determination that their search was insufficient was subject to review on appeal under the
substantial evidence standard. 29 C.F.R. § 1614.405(a). And because the previous decision
reviewed and addressed the search matter, Complainants must show that the appellate decision on
this issue involved a clearly erroneous interpretation of material fact or law.
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4
The AJ’s finding that the complainants’ search was insufficient is supported by substantial
evidence, which was recounted by the AJ, and the previous decision was not clearly erroneous on
this. We disagree with the complainants’ argument that the AJ shifted away from the Agency the
burden of proving there was local counsel readily available with the necessary skill and experience
when she considered complainants’ search effort. As argued by the Agency in opposition to
complainants’ request, the AJ’s weighing their search effort must be considered in its proper
context – as a lack of rebuttal evidence to the Agency’s showing that it was unreasonable for them
to retain local counsel.
The complainants correctly argue that, in our previous decision, we neglected to address their three
remaining arguments on attorney fees, and we will do so here.
We find, for the reasons given by the AJ, that a 10% across the board cut to the law firm billed and
charged hours was appropriate. We add that in some block billed entries, law firm attorneys
charged attorney legal service rates for non-attorney work, i.e., time spent scheduling
appointments and sending notification thereof, sending completed documents, and communicating
travel logistics. Also, while we did not do an analysis of the billing petition entries line by line, we
noticed some double billing for the same work. See entries on fee petition pages 21 – 22 for
Complainant 1, and page 23 for Complainant 2.
The AJ acted within her discretion in reducing the billing rate of four attorneys to the paralegal
rate because their sworn biographical information was not included in the fee petition, and we will
not disturb this.
While the law firm submitted no evidence on the local hourly rate of law clerks, we agree with its
argument on appeal and request that the law clerks should have been paid at the same rate as
paralegals. We make this finding because in response to complainants’ fee petition, the Agency
argued that paralegals and law clerks should be paid at the local rate of $90 – the same rate – and
the AJ did not cite any evidence nor explain why law clerks should be paid at 25% of the paralegal
rate. As the AJ awarded fees for 29.16 hours in law clerk fees, we award the law firm an additional
$2187 in fees (29.16 hours x $75).
In the interest of closing the fees litigation in this case, we will award fees for the work done by
the law firm on the complainants’ attorney fees appeal and request, rather than giving the
complainants the right to submit another fee petition to be processed by the Agency for these fees.
In reviewing the appeal and request briefs and estimating the time expended, we observe that
necessarily some of what was written was a reiteration of what was argued below. But much more
significantly, we consider the small degree of success on the appeal/request work regarding the fee
award, i.e., the complainants did not prevail on switching the billing rate to the Washington D.C.
Laffey rates nor reversing the 10% across the board cut to hours charged, which comprised the
bulk of their brief arguments. We award an additional $1,000 in fees for the work expended by
complainants’ attorneys’ law firm on appeal and request.
0520180407 & 0520180408
5
The complainants’ request for reconsideration is denied, except for the billing rate the AJ awarded
law clerks. Further, we award fees herein for the work the complainants’ attorneys’ law firm did
on their appeal and request briefs. The Agency shall comply with the order below, which includes
the relief ordered in our previous decision.
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’ attorneys payment for attorney fees in the amount of
$325,944.50, as well as the uncontested costs of $62,207.39
In addition, within sixty (60) calendar days of the date this decision is issued, the Agency shall
issue Complainants’ attorneys payment for additional attorney fees in the amount $3187 ($2187 +
$1,000).
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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.
COMPLAINANTS’ RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.
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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.
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 Complainants’ 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
October 25, 2018
Date
