Sofjan Bahaudin, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 21, 2000
01986204 (E.E.O.C. Dec. 21, 2000)

01986204

12-21-2000

Sofjan Bahaudin, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Sofjan Bahaudin v. Army

01986204

December 21, 2000

.

Sofjan Bahaudin,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Appeal No. 01986204

Agency No. 92020057

Hearing No. 340-93-3248X

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision

concerning his request for supplemental attorney fees.<1> The appeal is

accepted pursuant to 29 C.F.R. � 1614.405. For the reasons that follow,

the agency's final decision is REVERSED.

ISSUE PRESENTED

The issue presented herein is whether the agency properly denied

complainant's request for supplemental attorney fees regarding a petition

for enforcement.

BACKGROUND

Complainant, employed by the agency as a Civil Engineer at the time

of the alleged discriminatory events, filed a formal complaint on

February 4, 1992, in which he alleged that he was harassed on the basis

of reprisal (prior EEO activity) when he was denied permission to use

office equipment on November 4, 1991; and when the agency failed to

issue him a performance appraisal for the period covering December 1,

1990 through November 30, 1991. The agency accepted the complaint and

conducted an investigation concerning the matter. At the conclusion of

the investigation, the agency advised complainant of his right to choose

a hearing before an EEOC Administrative Judge (AJ) or an immediate final

agency decision without a hearing. Complainant chose the former.

The hearing was conducted on February 23 and 24, 1993. Based upon the

testimony and evidence of record, the AJ issued a recommended finding

of no discrimination regarding the use of office equipment denial and a

finding of discrimination regarding the agency's failure to issue him a

performance appraisal for the relevant period. In its final decision,

the agency reversed the AJ's recommended finding of discrimination.

On August 20, 1993, complainant appealed the agency's final decision

to this Commission. On appeal, we reversed the agency's decision and

affirmed the AJ's recommended findings. See Bahaudin v. Army, EEOC

Appeal No. 01934368 (September 27, 1995). The agency filed a request

for reconsideration which was denied because it was deemed untimely.

See Bahaudin v. Army, EEOC Request No. 05960110 (June 12, 1997). Both

decisions (EEOC Appeal No. 01934368 and EEOC Request No. 05960110) awarded

attorney fees to complainant as the prevailing party. Both decisions also

ordered the agency, in relevant part, to complete and issue a performance

appraisal for the period of December 1, 1990 through November 30, 1991,

to the complainant. Regarding this order, both decisions also mandated

that the appraisal should be based on input from all supervisors who

were in a position to know complainant's work performance during the

relevant time period.

On August 6, 1997, complainant filed a petition for enforcement.

In that petition, complainant contended that the agency refused to

comply with our order requiring the completion and issuance of a new

performance appraisal, based on input from all supervisors who were

in a position to know of complainant's work performance, for the

period of December 1, 1990 through November 30, 1991. In response,

the agency contended that it was impossible to comply with our order

because all of the supervisors that were in a position to know of

complainant's work performance had retired, resigned, or were otherwise

unavailable to provide input regarding complainant's work performance.

In our decision on the petition for enforcement, we ordered the agency

to complete and issue a performance appraisal with a summary rating of

�outstanding� for the relevant time period because, given the amount of

time that had elapsed, it became impractical for the agency to comply

with our order in EEOC Request No. 05960110. See Bahaudin v. Army,

EEOC Petition No. 04980002 (February 20, 1998). Because attorney fees

were not raised in complainant's petition for enforcement, our decision

regarding the matter was silent on that issue. Id.

By letter to the agency dated May 28, 1998, complainant requested

supplemental attorney fees regarding legal services received in

connection with his petition for enforcement. The agency denied the

request for attorney fees on the grounds that our decision in EEOC

Petition No. 04980002 was silent on that issue. This appeal followed.

ANALYSIS AND FINDINGS

The Commission may award complainant reasonable attorney's fees and other

costs incurred in the processing of a complainant regarding allegations

of discrimination in violation of Title VII. 29 C.F.R. � 1614.501(e).

A finding of discrimination raises a presumption of entitlement to an

award of attorney's fees. Id. Attorney's fees shall be paid for services

performed by an attorney after the filing of a written complaint. Id.

An award of attorney's fees is determined by calculating the lodestar,

i.e., by multiplying a reasonable hourly fee times a reasonable

number of hours expended. Hensley v. Eckerhart, 461 U.S. 424 (1983);

29 C.F.R. �1614.501(e)(2)(ii)(B). A reasonable hourly fee is the

prevailing market rate in the relevant community. Blum v. Stenson,

465 U.S. 886 (1984). A petition for fees and costs must take the form

of the verified statement required by the Commission's regulations at

29 C.F.R. �1614.501(e)(2)(i).

In this case, the record shows that complainant, in his petition for

enforcement, received services from an attorney. Because our decision

regarding the petition for enforcement was favorable to complainant, and

was merely an extension of a complaint in which we found discrimination,

we hold that complainant is entitled to an award of attorney's fees

for services received in connection with the petition for enforcement.

According to information in the file, complainant's attorney spent

three hours and five minutes and his legal assistant spent two hours and

twenty-five minutes on services regarding the complainant's petition.

Information in the file also indicates that complainant's attorney billed

at a rate of $245 per hour for his services and $145 per hour for the

services of his assistant for a total of $1105.50. The Commission notes

that the agency does not challenge any of the hours expended or hourly

fees as unreasonable. The agency is hereby ordered to pay complainant's

attorney a total of $1105.50 plus interest for services performed in

conjunction with the petition for enforcement.

And although an award of attorney's fees is provided in the order below,

the Commission feels compelled to note that attorney's fees are also

awarded for legal services performed in connection with the present

case if those services have not already been included in the attorney's

itemized attorney's fee request dated May 28, 1998.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, we REVERSE the agency's final decision and

REMAND this case to the agency to take remedial actions in accordance

with this decision and ORDER below.

ORDER

The agency is ordered to pay complainant's attorney, within 60 days after

this decision becomes final, supplemental attorney's fees plus interest

for services performed in connection with the petition for enforcement.

The agency is further ordered to submit a report of compliance, as

provided in the statement entitled �Implementation of the Commission's

Decision.� The report shall included supporting documentation that

the agency paid complainant's attorney the supplemental fees and costs

ordered in this decision.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii), he/she 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 this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0900)

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 or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 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

(R0900)

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 (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which

to file a civil action. Both the request and the civil action must be

filed within the time limits as stated in the paragraph above ("Right

to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 21, 2000

__________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.