Stephen C. Grant, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionFeb 16, 2000
01991493 (E.E.O.C. Feb. 16, 2000)

01991493

02-16-2000

Stephen C. Grant, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


Stephen C. Grant, )

Complainant, )

)

)

v. ) Appeal No. 01991493

) Agency No. ACF-200-95

)

Donna E. Shalala, )

Secretary, )

Department of Health and )

Human Services, )

Agency. )

______________________________)

DECISION

INTRODUCTION

On December 11, 1998, complainant filed a timely appeal with this

Commission from the agency's final decision dated October 28, 1998,

finding that it was in compliance with the terms of the December 18,

1997 settlement agreement into which the parties entered.<1> See 64

Fed. Reg. 37,644, 37,659, 37,660 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �

1614.504(b); EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency's final decision properly

modified complainant's request for attorney's fees.

BACKGROUND

The record indicates that on May 11, 1995, complainant, a Program Analyst,

GS-13, filed a formal complaint, alleging discrimination based on sex

(male) concerning his reassignment, performance appraisal, and promotion.

After completion of the investigation of his complaint, complainant

requested a hearing before an EEOC Administrative Judge on February 29,

1996. Prior to such hearing, the parties entered into the settlement

agreement at issue, which provided in part, in exchange for complainant's

withdrawal of the complaint, the agency would: retroactively promote him

to the GS-14 level effective January 22, 1995; pay him a lump sum amount

of $4,500.00; and jointly pay him and his attorney for reasonable legal

fees and expenses not to exceed $40,000.00.

On January 28, 1998, complainant's attorney, a solo practitioner in

Washington, D.C., submitted a request for attorney's fees and costs,

which included a copy of the representation agreement between her

and complainant and her affidavit explaining the time spent and task

performed. Specifically, the attorney requested a total of $37,310.13

($36,079.90 in legal fees plus $230.23 in expenses/costs plus a $1,000.00

one-time engagement fee at the initiation of the representation).

The representation agreement indicated that complainant and the attorney

entered into the agreement on March 26, 1997, wherein complainant

agreed to pay the attorney at the hourly rate of $200.00 per hour for

attorney work and $85.00 per hour for paralegal work. The agreement

also indicated that this hourly rate was based upon the Laffey matrix<2>

plus a premium of $10.00 per hour for services upon short notice and

mid-case services. The attorney indicated that she had been litigating

employment discrimination cases since January of 1993, and her office

consisted of two people (herself and her legal assistant). The attorney

also provided a copy of the legal assistant's resume. The attorney's time

record included dates and description of work performed, hours spent,

and the amount she charged complainant. It indicates that the attorney

expanded a total of 225.25 hours for complainant's case. Specifically,

it indicates that the attorney spent 133.18 hours (40.01 hours from

March to May 1997, and 93.17 hours from June to December 1997) and her

legal assistant spent 92.07 hours (18.92 hours from March to May 1997,

and 73.15 hours from June to December 1997).

In its final decision, the agency indicated that since complainant's

attorney's fee petition contained several calculation errors, it would

consider $35,213.00 as her requested legal fees. The agency further

stated that the attorney was only entitled to an hourly rate for an

attorney with 1 - 3 years of experience based upon the Laffey matrix

since the attorney failed to provide them with sufficient evidence

that she had 4 - 7 years of experience in employment discrimination.

The agency, nevertheless, indicated that it would pay complainant at

the hourly rate of $175.00 per hour from March to May 1997, and $180.00

per hour from June to December 1997, rather than $150.00 and $155.00,

respectively, under the Laffey matrix, for attorney work. The agency

also stated that it would pay $80.00 per hour from March to May 1997,

and $85.00 per hour from June to December 1997, for legal assistant

work based upon the Laffey matrix. The agency, noting the fact that the

attorney failed to provide any contemporaneous time records, determined

that a number of hours expended/requested by the attorney was excessive

and unreasonable, and only allowed 103.96 hours, instead of the requested

225.25 hours, as reasonable hours expanded by the attorney. With regard

to complainant's requested legal costs, the agency determined that since

he failed to provide any explanation as to what these costs covered,

it would only pay $47.80 instead of the requested $230.23. The agency

also disallowed the $1,000.00 one-time engagement fee since it did

not relate to any work performed by the attorney concerning the case

at issue. In this regard, the agency noted that this expense was not

reflected in the representation agreement nor was it itemized, and the

attorney already charged complainant $284.00 for initial consultation on

March 26, 1997. Finally, the agency stated that since it already paid

complainant $14,677.35 out of the adjusted total legal fees and costs

of $15,949.15, it would pay him the remaining balance of $1,271.80.

On appeal, complainant, reiterating his previous arguments, contends that

he was entitled to $37,310.13 for his attorney's fees and costs under

the settlement agreement. Complainant indicates that the $10.00 premium

per hour for attorney's fees was reasonable due to the time pressure

involved and the undesirability of the case. Specifically, complainant

asserts that he retained his attorney 10 days before his response to an

EEOC Administration Judge's Summary Judgement Notice was due, and his

case involved a voluminous record on complex issues. Complainant also

asserts that the $1,000.00 one-time engagement fee was reasonable since

acceptance of the representation precluded the attorney from taking on

other cases during the same time period. Complainant further indicates

that the attorney properly documented her work on the Timeslips computer

system, billed him monthly, and was paid monthly by him for expenses up

to or exceeding $40,000.00. Complainant contends that at the time of the

settlement agreement, he reasonably believed that he would be reimbursed

for all of his documented litigation expenditures up to $40,000.00.

Complainant also contends that his attorney was entitled to an hourly

rate for 4 - 7 years of experience based upon the Laffey matrix since she

had been litigating employment discrimination cases since early 1993.

Specifically, complainant indicates that the attorney resolved six

employment discrimination cases, including his, since 1993, and four

employment discrimination cases are pending before a district court

or federal agencies. Complainant also states that since the case was

not settled until the date when the hearing was scheduled to begin, the

attorney was required to do substantial work to prepare as if the case

would go forward through the hearing. With regard to the requested

costs/expenses, complainant asserts that these were nominal costs

for photocopying in preparation for the hearing and for cab fare for

the attorney's legal assistant, who did not own a car. Specifically,

complainant indicates that the legal assistant was required to take

a cab on several occasions when he retrieved 7 boxes of documents from

complainant's home and when he returned to his own home on evenings after

the metro had closed, and when he was required to assist the attorney

in hearing preparation until late evenings.

In response to complainant's appeal, the agency, reiterating its prior

arguments, states that it paid complainant the remaining balance of

$1,271.80.

ANALYSIS AND FINDINGS

By Federal regulation, an agency shall award attorney's fees and costs

for the successful processing of an EEO complaint in accordance with

the existing case law and regulatory standards. 64 Fed. Reg. 37,644,

37,659 - 60 (1999) (to be codified and hereinafter referred to as 29

C.F.R. � 1614.501(e)). The award is normally determined by multiplying

the number of hours reasonably expended by a reasonable hourly rate.

Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424

(1983). The attorney requesting the fee award has the burden of

proving, by specific evidence, his entitlement to the requested award.

Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980).

Initially, we note that the parties entered into the settlement agreement

on September 18, 1997, which provided, in pertinent part, that the

agency would pay complainant reasonable legal fees and expenses not to

exceed $40,000.00. Complainant requested $37,310.13 for attorney's fees

and expenses. The agency, however, stated in its final decision that

complainant was only entitled to $15,949.15.

The Supreme Court has held that the applicable hourly rate for public

interest attorneys is the �prevailing market rates in the relevant

community.� Blum v. Stenson, 465 U.S. at 895. The Court also stated that

the burden is on the fee applicant to produce satisfactory evidence that

the rate requested is, comparable to those prevailing in the relevant

community. Id. Counsel must also submit evidence of his/her customary

hourly rates for the same or similar work to substantiate his/her claim.

See Laffey v. Northwest Airlines, Inc., 746 F. 2d 4 (D.C. Cir. 1984),

cert. denied, 472 U.S. 1021 (1985). In this case, complainant's attorney

submitted a copy of the Laffey matrix indicating the prevailing hourly

rate in the Washington, D.C. area. After a review of the record, we find

that the attorney should be compensated an hourly rate of $190.00 from

March to May 1997, and $195.00 from June to December 1997, since she had

been litigating employment discrimination cases since January of 1993.

We note that although the agency indicated in its final decision that

the attorney should be compensated at a lower hourly rate, it failed to

proffer any evidence to support its contentions. Furthermore, we find

that under the Laffey matrix, the attorney's legal assistance should be

compensated an hourly rate of $80.00 from March to May 1997, and $85.00

from June to December 1997.

Complainant also requested a $10.00 premium per hour due to the time

pressure involved and the undesirability of the case. The regulations

provide that the amount of attorney's fees may be reduced or increased

in consideration of the degree of success, quality of representation,

and long delay caused by the agency. 64 Fed. Reg. 37,644, 37,659-60

(1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.501(e)(2)(ii)(B)). Upon review, we find that complainant's

voluminous record on complex issues and his attorney having 10 days before

his response to an EEOC Administration Judge's Summary Judgement Notice

does not constitute sufficient evidence to grant the requested premium.

Furthermore, there is no evidence in the record that the relevant legal

community added a premium to the relevant cases as a class nor is there

any evidence in the record that without this premium complainant would

have had substantial difficulty finding an attorney in the relevant

legal market. See Pennsylvania v. Delaware Valley Citizens Council for

Clean Air, 483 U.S. 711 (1987).

In determining the number of hours reasonable expended, we note that a fee

petition must �contain sufficiently detailed information regarding the

hours logged and the work performed� to permit the determination of the

correct award. National Associate of Concerned Veterans v. Secretary of

Defense, 675 F.2d 1319 (D.C. Cir. 1982). In support of his/her request,

the fee applicant need not �record in great detail how each minute

of his time is spent.� Hensley v. Eckerhart, 461 U.S. at 437, n.12.

However, the applicant does have the burden of identifying the subject

matter on which he spent his time, which can be documented by submitting

sufficiently detailed contemporaneous time records to ensure that the time

spent was accurately recorded. See Davis v. Department of the Treasury,

EEOC Request No. 05901213 (March 1, 1991).

Upon review, we find that the time record submitted by complainant's

attorney provided a detailed

description of the work she and her legal assistant performed and time

spent. We find that although the attorney spent considerable hours

preparing for the hearing, it was reasonable under the circumstances

since the case was not settled until the hearing date. Although the

agency disallowed a number of hours spent by the attorney and the legal

assistant, we disagree with the agency's assessment of duplicative,

excessive, unnecessary hours. We also disagree with the agency's

disallowance of a number of hours spent by the attorney and the legal

assistant on the grounds that these were purely clerical in nature.

The record clearly indicates that complainant's attorney was a solo

practitioner and she and her legal assistant did all the clerical

duties for the case. See Canady v. Department of the Army, EEOC Request

No. 05890226 (January 4, 1990).

With regard to complainant's claim for expenses/costs incurred by

the attorney, the courts have held that these include reasonable

out-of-pocket expenses that were incurred by the attorney which are

normally charged to a fee-paying private client in the normal course

of providing representation. Laffey v. Northwest Airlines, Inc., 746

F. 2d 4 (D.C. Cir. 1984), cert. denied, 472 U.S. 1021 (1985); Patricia

Hatfield v. Department of the Navy, EEOC Appeal No. 01892909 (December

12, 1989). We, therefore, concur with this case law, and allow all the

requested $230.23 expenses/costs since it appears that they are of the

sort routinely charged by attorneys to fee-paying clients, i.e., copying,

courier, and transportation costs in connection with complainant's case.

Furthermore, there is no evidence in the record that the attorney incurred

these costs in a bad faith effort to charge complainant more than what

was necessary.

With regard to complainant's claim for the $1,000.00 one-time engagement

fee, we find that the agency properly disallowed this fee. Although

complainant asserted that he was entitled to this fee since acceptance

of the representation precluded his attorney from taking on other

cases during the same time period, we find that he failed to provide

any evidence to support his assertions. See Pennsylvania v. Delaware

Valley Citizens Council for Clean Air, 483 U.S. 711 (1987).

In addition, we note that although complainant contends that he entered

into the settlement agreement believing that he would be reimbursed

for all of his documented litigation expenditures up to $40,000.00,

the agreement provides for payment of fees and expenses not to exceed

$40,000.00, but does not guarantee payment of $40,000.00. The Commission

has held that settlement agreements are contracts between the complainant

and the agency and it is the intent of the parties as expressed in the

contract, and not some unexpressed intention, that controls the contract's

construction. Eggleston v. Department of Veterans Affairs, EEOC Request

No. 05900795 (August 23, 1990). In addition, the Commission generally

follows the rule that if a writing appears to be plain and unambiguous

on its face, its meaning must be determined from the four corners of

the instrument without resort to extrinsic evidence of any nature.

See Montgomery Elevator v. Building Engineering Services, 730 F.2d 377

(5th Cir. 1984). The Commission has followed this rule when interpreting

settlement agreements. The Commission's policy in this regard is based on

the premise that the face of the agreement best reflects the understanding

of the parties.

Based on the foregoing, we find that the attorney spent 40.01 hours from

March to May 1997, and 93.17 hours from June to December 1997, and her

legal assistant spent 18.92 hours and 73.15 hours, respectively. Thus,

we find that the attorney's fees total the amount of $33,501.40, i.e., by

adding (40.01 hours X $190.00 = $7,601.90) plus (93.17 hours X $195.00 =

$18,168.15) for attorney work and (18.92 hours X $80.00 = $1,513.60) plus

(73.15 hours X $85.00 = $6,217.75) for legal assistant/paralegal work.

Since complainant incurred costs in the amount of $230.23, we find that

complainant is entitled to $33,731.63 for his attorney's fees and costs

(plus reasonable attorney's fees and costs associated with preparing

the fee request and pursuing the same on appeal, if applicable).

CONCLUSION

Accordingly, the agency's final decision is MODIFIED regarding

complainant's attorney's fees and costs, and the agency is Ordered to

provide complainant with fees and costs as set forth below.

ORDER

The agency is ORDERED to pay complainant the remaining balance of

$17,782.48 ($33,731.63 - $15,949.15) (plus reasonable attorney's fees and

costs associated with preparing the fee request and pursuing the fee on

appeal, if applicable). The agency shall submit a report of compliance,

including supporting documentation to verify that the action has been

fully implemented, to the Compliance Officer as referenced below.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (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:

February 16, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding

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

at the Commission's website at WWW.EEOC.GOV. In addition, the agency

was unable to supply a copy of a certified mail return receipt or any

other material capable of establishing the date complainant received

the agency's final decision. Accordingly, since the agency has failed

to fulfill its obligation to transmit its final decision by a method

enabling the agency to show the date of receipt, the Commission presumes

that complainant's appeal was filed within thirty (30) days of receipt

of the agency's final decision. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.402).

2It is noted that this matrix has its origins in the district

court decision in Laffey v. Northwest Airlines, Inc., 746 F. 2d 4

(D.C. Cir. 1984), cert. denied, 472 U.S. 1021 (1985), and was provided

to practitioners in the Washington, D.C. area by the U.S. Attorneys'

Offices for use in fee applications.