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.