Sylvester D.,1 Complainant,v.Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.

Equal Employment Opportunity Commission

Sep 18, 2018

0120161524 (E.E.O.C. Sep. 18, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sylvester D.,1
Complainant,

v.

Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.

Appeal No. 0120161524

Agency No. 0420-2009040

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the Agency’s decision concerning attorneys’ fees for a violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Coordinator at the Agency’s Shawnee Fossil Plant in Paducah, Kentucky. On April 20, 2009,
Complainant filed a formal complaint alleging that the Agency discriminated against him on the
basis of race (African-American) when, in February 2009, he was not selected for a Maintenance
Supervisor position.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge. In accordance with Complainant’s request, the Agency issued a final
agency decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to show that he was subjected to discrimination as alleged. Complainant appealed and, in
Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120100344 (Dec. 14, 2011), the
Commission reversed the decision and found that the Agency had subjected Complainant to race
discrimination when he was not selected for the Maintenance Supervisor position.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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The Commission ordered the Agency to offer Complainant a Maintenance Supervisor or
substantially similar position, determine and pay Complainant back pay and compensatory
damages, provide training to the responsible management officials, consider taking disciplinary
action against the responsible management officials, and to post a notice. In addition, the
Commission noted that Complainant had raised a claim of reprisal regarding a reassignment in
his affidavit, but the Agency failed to amend his complaint to include the claim. The
Commission ordered the Agency to conduct a supplemental investigation into the claim and
issue a new decision regarding the reprisal claim. The Commission later denied the Agency’s
request for reconsideration in Complainant v. Tenn. Valley Auth., EEOC Request No.
0520120244 (Nov. 9, 2012).

On February 5, 2013, the Agency issued a decision awarding Complainant $9,256.86 in
attorneys’ fees. Complainant filed an appeal with the Commission which was docketed as
EEOC Appeal No. 0120133384. On April 8, 2013, the Agency issued its final decision on
compensatory damages, awarding Complainant $1,000.00 in nonpecuniary, compensatory
damages. Complainant filed an appeal which was docketed as EEOC Appeal No. 0120133385.
On September 15, 2015, the Commission consolidated the appeals and issued a decision.
Therein, the Commission modified the remedies awarded by ordering the Agency to pay
Complainant $12,187.88 in attorneys’ fees and $35,000.00 in compensatory damages. See EEOC
Appeal Nos. 0120133384, 0120133385 (Sept. 15, 2015).

On October 16, 2015, the Agency paid Complainant the ordered additional attorneys’ fees and
costs and compensatory damages. On November 16, 2015, Complainant’s counsel submitted
another fee petition to the Agency requesting an additional $20,642.00 in attorneys’ fees. The
Agency subsequently issued a final agency decision (FAD) concluding that Complainant was not
entitled to additional attorneys’ fees as the Commission’s decision did not include an order to
pay additional attorneys’ fees. Even so, the Agency noted that there was nothing in the
submitted fee petition suggesting that the preparation of the attorneys’ fees and compensatory
damages appeals were particularly complex or involved novel issues of law. Nevertheless, the
second fee petition represented 79.70 hours of work performed by six attorneys. Further, the
Agency added that the petition did not clearly identify what work was performed in connection
with the nonselection issue rather than the separate reprisal issue. Therefore, the Agency found
that Complainant’s counsel was not entitled to additional attorneys’ fees.

CONTENTIONS ON APPEAL

On appeal, Complainant, through counsel, contends that he is entitled to the requested attorneys’
fees because he prevailed on both appeals and there was no requirement that the Commission
specifically order it. Further, Complainant’s counsel argues that the requested fees were
reasonable and based on work performed on two separate appeals with extensive time devoted to
such matters as the compensatory damages and back pay supplemental investigations, and
finding Complainant a substantially equivalent position to the one he was discriminatorily
denied.
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With respect to the Agency’s arguments that the firm’s use of six attorneys was excessive,
Complainant’s counsel notes that it was a small firm and that turnover occurred during the three
and a half years that this matter has remained pending. Additionally, Complainant’s counsel
maintains that the billing entries clearly identify all work was associated with only the non-
selection issue. Finally, Complainant’s counsel requests that the Commission sanction the
Agency for its failure to timely issue a final decision and for improper refusals to award
Complainant the damages to which he is entitled. Accordingly, Complainant requests that the
Commission award the full requested attorneys’ fees and an additional $25,000.00 in sanctions.

In response, the Agency notes that it does not contest that Complainant is entitled to attorneys’
fees, but argues that Complainant’s attorneys did not sustain their burden to provide specific
evidence demonstrating an entitlement to the requested fees. The Agency explains that there was
a short delay in issuing the FAD because of Complainant’s attorney’s insistence in sending
documents to the Agency’s Equal Opportunity Compliance Office rather than the Office of
General Counsel. Further, the Agency argues that Complainant’s attorneys did not sufficiently
itemize their time records in the fee petition. The Agency contends that the fee petition contains
excessive fees and hourly rates exceeding market rates which warrants an across-the-board fee
and hours reduction. Finally, the Agency contends that Complainant’s request for sanctions is an
obvious “throw-away” request and not warranted. As a result, the Agency requests that the
Commission find that Complainant is not entitled to additional attorneys’ fees or to reduce the
requested fees by at least 60 percent.

ANALYSIS AND FINDINGS

Complainant’s Request for Sanctions Against the Agency

As an initial matter, the Commission will address Complainant’s request for sanctions against the
Agency for its delay in issuing a FAD addressing attorneys’ fees. The record reveals that
Complainant’s counsel submitted the fee petition to the Agency on November 16, 2015. The
Agency issued its FAD regarding attorneys’ fees on February 17, 2016. The Agency explains
this delay was caused by Complainant’s counsel’s insistence on sending all correspondence and
documents to the Agency’s Equal Opportunity Compliance Office rather than its Office of
General Counsel, as it requested on several occasions. The Agency contends that its delay was
therefore excusable in light of Complainant’s counsel’s deliberate refusal to provide courtesy
copies of its submissions to the Office of General Counsel.

The Commission has exercised its inherent authority to enforce its 29 C.F.R. Part 1614
regulations by ordering sanctions in response to various types of violations. See Complainant v.
Dep't of Energy, EEOC Appeal No. 0120113823 (Nov. 17, 2015) (sanction warranted where
agency failed to submit hearing transcripts on appeal); Complainant v. Dep't of the Air Force,
EEOC Appeal No. 0120110789 (Sept. 24, 2013) (sanction appropriate where agency failed to
provide copy of hearing record, including hearing transcripts).

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The Commission notes that our regulations require agency action in a timely manner at many
points in the EEO process. Tammy S. v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6,
2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v.
Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission
has the inherent power to protect its administrative process from abuse by either party and must
insure that agencies, as well as complainants, abide by its regulations.” Because of the length of
time it can take to process a federal sector EEO complaint, any delays in complying with the
time frames in the regulations can impact the outcome of the complainant's claims. Id.

Here, the Commission finds that the Agency has not acted in a manner warranting a sanction.
The record supports the Agency’s explanation that its efforts to address Complainant’s request
for attorneys’ fees were delayed by Complainant’s counsel’s refusal to submit correspondence to
the Agency’s Office of General Counsel. Furthermore, Complainant has not made a showing
that he was prejudiced by the Agency’s delay in issuing the FAD. See, e.g., Josefina L. v. Soc.
Sec. Admin., EEOC Appeal No. 0120142023 (July 19, 2016), req. for recon. den'd, EEOC
Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency's 571-day delay in issuing the
FAD did not warrant sanctions, as complainant did not show she was prejudiced by the delay);
Jocelyn R. v. Dep't of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v.
U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency
that issued a FAD after approximately 371 days)). As a result, the Commission declines to
sanction the Agency under the circumstances present.

Entitlement to Attorneys’ Fees

The Commission notes that the previous decision did not expressly order the Agency to pay
attorneys’ fees incurred following Complainant’s successful appeal of the Agency’s
compensatory damages and attorneys’ fees decisions. Nonetheless, Commission regulations
state that a finding of discrimination raises a presumption of entitlement to an award of
attorney’s fees, and any such award of attorney’s fees or costs must be paid by the agency that
committed the unlawful discrimination in question. See 29 C.F.R. § 1614.501(e). In its response
brief, the Agency concedes that Complainant, as the prevailing party, has a legal basis to request
these fees. Accordingly, the Commission finds there is no dispute that Complainant is entitled to
attorneys’ fees pursuant to Commission regulations despite the Commission not expressly
granting the fees.

As discussed above, Title VII and the Commission’s regulations authorize the award of
reasonable attorneys’ fees and costs to a prevailing Complainant. 29 C.F.R. § 1614.501(e); see
also EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 11-1 (Aug. 5,
2015). Fee awards are typically calculated by multiplying the number of hours reasonably
expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R.
§ 1614.501(e)(ii)(B); Blum v. Stenson, 465 U.S. 886, 899 (1984); Hensley v. Eckerhart, 461 U.S.
424, 435 (1983).

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All hours reasonably spent in processing the complaint are compensable, but the number of
hours should not include excessive, redundant or otherwise unnecessary hours. Id. 11-15. A
reasonable hourly rate is based on prevailing market rates in the relevant community for
attorneys of similar experience in similar cases. Id. 11-6. An application for attorneys’ fees
must include a verified statement of attorneys’ fees accompanied by an affidavit executed by the
attorney of record itemizing the attorneys’ charges for legal services. Id. 11-9.

While an attorney is not required to record in detail the way each minute of his or her time was
expended, the attorney does have the burden of identifying the subject matters on which he or
she spent his or her time by submitting sufficiently detailed and contemporaneous time records to
ensure that the time spent was accurately recorded. See Spencer v. Dep’t of the Treasury, EEOC
Appeal No. 07A10035 (May 6, 2003). The attorney requesting the fee award has the burden of
proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal
Serv., EEOC Request No. 05A20843 (Feb. 18, 2003).

Adequacy of Fee Petition

Here, Complainant requested $20,642.00 in attorneys’ fees. The Agency argued that
Complainant was not entitled to any of the requested fees for several reasons. First, the Agency
argued that Complainant’s attorneys failed to sufficiently itemize the documentation of their time
expended and that several entries were vague. A fee petition must “contain sufficiently detailed
information regarding the hours logged and the work done” to permit the determination of
whether hours were reasonably expended. Nat’l Ass’n of Concerned Veterans v. Sec. of Def.,
675 F.2d 1319, 1327 (D.C. Cir. 1982). In support of his request, the fee applicant need not
“record in great detail how each minute of his time was expended.” Hensley, 461 U.S. 424, at n.
12. However, the applicant does have the burden of identifying the subject matter on which she
spent her time, which can be documented by submitting sufficiently detailed contemporaneous
time records; billing records, or a reasonable accurate substantial reconstruction of time records.
EEO MD-110, at 11-6. This should include a summary of the task. Id.

The Agency cites to such entries as “Review final drafts of briefs in support of appeals,” which
the Agency believes meant the nonselection and reprisal appeals. There is no evidence to
support this interpretation as the matter at hand was two consolidated appeals from a
compensatory damages decision and an attorneys’ fees decision. The Agency challenges other
entries such as “review correspondence from OFO re Appeals” and “Reviewed e-mail and
attached letter from Agency counsel.” The Commission concludes that Complainant’s counsel
has sufficiently summarized the work expended and finds no basis to reduce the requested fees in
this regard.

Hourly Rate and Retaining of Out-of-Town Counsel

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Additionally, the Agency challenges Complainant’s use of counsel located in Atlanta, Georgia,
when he worked and lived in Paducah, Kentucky. The Agency argues that Complainant chose to
hire expensive attorneys rather than hiring competent counsel at a lower cost and closer distance.
The Agency, thus, claims that the prevailing hourly market rate for the fees at issue should be set
at the rate for attorneys in a closer market such as Louisville, Kentucky.

The Commission has held that if a party does not find counsel readily available in the locality of
the case with the necessary skill and experience, it is reasonable for the party to go elsewhere to
find an attorney. See Harden v. Soc. Sec. Admin., EEOC Appeal No. 0720080002 (Aug. 12,
2011) (citing Southerland v. U.S. Postal Service, EEOC Appeal No. 01A05403 (Oct. 16, 2002)).
The burden is on the Agency to show that a complainant’s decision to retain out-of-town counsel
was unreasonable. See id. The Agency has not met its burden here. Complainant asserts that he
was not able to find an attorney in his local area who specialized in federal EEO law. The
Agency has presented no evidence that federal EEO law specialists were readily available in
Paducah, Kentucky. Furthermore, the Agency’s argument that the Louisville market should set
the prevailing rate is unpersuasive based on evidence that Complainant’s attorneys’ rates were
actually lower or mostly equivalent to the average rates of attorneys in closer metropolitan areas
than Louisville. Accordingly, the Agency has not established that Complainant’s decision to
retain out-of-town counsel nor the hourly rate was unreasonable.

Number of Hours Expended

Next, the Agency argues that an across-the-board fee reduction is warranted based on excessive
claimed fees. The Agency cites Complainant’s counsel’s requested 79.7 hours for $20,642.00
when the Commission only awarded $12,187.88 in the original decision. Further, the Agency
notes that Complainant’s counsel has not explained why the firm needed to use six attorneys to
work on the appeal. In addition, the Agency points to the work billed in September through
November 2015, at almost $5,000.00 for just the preparation of the fee petition. The
Commission notes again that this case involved two consolidated appeals, not a “simple” appeal
as the Agency argued. Nonetheless, the Commission finds that the fee petition appears to
contain excessive and redundant entries, including the entries ranging from September 2015
through November 2015, which claimed work expended almost exclusively on the fee petition.

The Commission has ruled that, when reviewing fee petitions which contain many excessive,
redundant, unnecessary or inadequately documented expenditures of time, in lieu of engaging in
a line-by-line analysis of each charge claimed, the Commission may calculate the number of
hours compensable by applying an across-the-board reduction to the number of hours requested.
See Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). Here,
the Commission finds support for the Agency’s argument that an across-the-board reduction in
fees is warranted based on the excessive hours claimed, unreasonable work, and some
duplicative or redundant efforts. Accordingly, the Commission finds that a 20 percent reduction
in fees is warranted.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to MODIFY the
attorneys’ fee award in accordance with the Order below.

ORDER

Within sixty (60) days of the date this decision is issued, the Agency is directed to pay
Complainant $16,513.60 in attorneys’ fees.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he 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 the date this decision was issued. 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 (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.
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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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (T0610)

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.
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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 (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 Complainant’s 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

September 18, 2018
Date