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.