0120072115
07-15-2009
Trina R. Durham, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Trina R. Durham,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072115
Hearing No. 340-2006-00102X
Agency No. 200P-0605-2005102568
DECISION
On March 26, 2007, complainant filed an appeal from the agency's February
28, 2007 final action concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS
the agency's final action.
At the time of events giving rise to this complaint, complainant worked
as a Medical Support Assistant at the agency's work facility in Loma
Linda, California.
On June 29, 2005, complainant filed an EEO complaint wherein she
claimed that she was discriminated against on the basis of disability
(degenerative arthritis in her ankles associated with bilateral achilles
tendon injury) when she was not provided with a reasonable accommodation
from February 2005 - February 2006.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing and the AJ held a hearing on August 15, 2006, and issued a
decision on February 7, 2007.
The AJ found that complainant had been discriminated against on the basis
of her disability when she was denied a reasonable accommodation during
the period of March 21, 2005 - May 25, 2005. Although complainant claimed
that the discrimination occurred both before and after that period,
the AJ observed that complainant did not provide requested medical
information until March 21, 2005, and the AJ found that from May 25,
2005 onward, complainant was provided reasonable accommodation when she
was offered the use of a wheelchair to aid her in the performance of
duties that required walking.
Complainant requested as attorney's fees an award of $32,400.00 based on
112.25 hours expended by complainant's attorney at the rate of $300.00
per hour. The AJ ordered that complainant receive an award of attorney's
fees of $6,105.00 and costs in the amount of $456.00. The AJ reduced
the attorney's fees award from what complainant had requested by 80%
to reflect the degree of success that complainant achieved. The AJ
also found excessive six and one quarter hours claimed for time spent
speaking with complainant regarding proposed witnesses and preparing a
witness list; the review and preparation of proposed stipulations; and
the preparation of the fee petition. The AJ stated that complainant's
attorney sought a full recovery of fees although complainant established a
failure to accommodate for only a relatively brief period of time covered
by the complaint. The AJ found that the agency correctly argued that
the attorney's fee award should be reduced because only minimal success
was achieved in terms of the time period for which discrimination was
established and in terms of the relief granted. The AJ noted that
complainant was not awarded make whole relief or compensatory damages
and had already been provided with a reasonable accommodation for the
time after May 25, 2005. The AJ ordered that the agency prominently
post at the facility a notice of the finding of discrimination.
The agency subsequently issued a final order wherein it determined that
the AJ's decision was legally and factually correct and it ordered the
implementation of the relief that the AJ ordered, including the award
of $6,105.00 in attorney's fees and $456.00 in costs. The agency also
provided that the agency would commit to complainant in writing that the
agency will cease from engaging in unlawful employment discrimination
and post a notice of the violation.
On appeal, complainant specifically states that the only issue she is
raising is the reduction of her attorney's fees. Complainant contends
that the AJ improperly reduced the attorney's fee request by 80% based on
the finding that she had only limited success. Complainant argues that
she prevailed on a significant issue and the complaint served a public
purpose. According to complainant, she received the full relief that she
sought and thus satisfied this indicia for a full award of attorney's
fees. Complainant notes that she did not seek compensatory damages or
monetary relief as she instead asked that the agency recognize her as
an individual with a disability and she sought effective accommodation
for her disability. Complainant states that the AJ found that that the
decision materially altered the ongoing relationship between her and the
agency. Complainant maintains that the AJ failed to properly consider the
significance of the legal issue given that without litigating the issue,
she would still not be considered an individual with a disability and the
agency would not be required to provide her a reasonable accommodation.
Complainant contends that the AJ failed to consider the public purpose
served by the litigation. Complainant argues that enforcement of
the Rehabilitation Act through the complaint served a public purpose.
Further, complainant maintains that in determining the degree of success,
all relief obtained should be considered in light of her goals.
In response, the agency asserts that complainant did not achieve a high
degree of success in light of the fact that the discrimination finding
applied to a short period of time. The agency maintains that based
on the relief sought and the results obtained, it is clear that the
amount of time complainant's counsel expended on the case is not the
time reasonably expended.
Complainant is entitled to attorney's fees as long as she has obtained
some relief on the merits of her claim. See Farrar v. Hobby, 506
U.S. 103, 112 (1992). "In short, a plaintiff 'prevails' when actual
relief on the merits of his claim materially alters the legal relationship
between the parties by modifying the defendant's behavior in a way that
directly benefits the plaintiff." The magnitude of the relief obtained
is not dispositive. The Commission has found that a complainant is a
prevailing party even in situations where only a finding of discrimination
and a posting was ordered. See McGinnis v. Department of Defense, EEOC
Request No. 05920150 (July 15, 1992). Accordingly, in light of the fact
that complainant obtained some relief on her complaint, we agree with the
AJ's finding that she is a prevailing party for attorney's fees purposes.
By federal regulation, the agency is required to award attorney's fees
for the successful processing of an EEO complaint in accordance with
existing case law and regulatory standards. EEOC Regulation 29 C.F.R. �
1614.501(e). To determine the proper amount of the fee, a lodestar
amount is reached by calculating the number of hours reasonably expended
by the attorney on the complaint multiplied by a reasonable hourly rate.
Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424
(1983). The circumstances under which the lodestar may be adjusted
are strongly limited, and are set forth in EEO Management Directive 110
(November 9, 1999). A fee award may be reduced: in cases of limited
success; where the quality of representation was poor; the attorney's
conduct resulted in undue delay or obstruction of the process; or where
settlement likely could have been reached much earlier, but for the
attorney's conduct. Id. at p. 11-7. The party seeking to adjust the
lodestar, either up or down, has the burden of justifying the deviation.
Id. at p. 11-8.
Upon review of complainant's contentions on appeal, we find that the
record supports the AJ's decision with regard to the attorney's fees
award and the agency's subsequent adoption of that decision in its final
action. Complainant sought attorney's fees for a denial of reasonable
accommodation that allegedly occurred for approximately one year from
February 2005 - February 2006. The AJ found that the denial of reasonable
accommodation encompassed the period of March 21, 2005 - May 25, 2005.
Therefore, the finding of discrimination applied to only two months of
the year in which complainant claimed discrimination occurred.
In light of the fact that the discrimination occurred over a limited
period of time relative to the amount of time alleged, no make-whole
relief was ordered, and no compensatory damages were awarded, we find that
the level of success complainant achieved was limited. Further, we find
that it was appropriate that the AJ subtracted six and one quarter hours
from the amount of time claimed by complainant's attorney. The amount of
time that had been submitted for discussions with complainant concerning
proposed witnesses and preparing a witness list; reviewing and preparing
proposed stipulations; and preparing the fee petition was excessive and
the AJ made appropriate adjustments.
CONCLUSION
The agency's final action adopting the AJ's decision finding
discrimination on the basis of disability and the relief ordered therein
is AFFIRMED. The agency shall comply with the Order herein which
slightly modifies the relief by adding training and the consideration
of discipline.
ORDER
The agency shall take the following remedial actions:
1. Within 30 days of the date this decision becomes final, the agency
shall pay to complainant $6,105.00 in attorney's fees and $456.00 in
costs.
2. Within 30 days of the date this decision becomes final, the agency
shall commit to complainant in writing that it will cease from engaging
in disability discrimination, that it will not engage in similar unlawful
employment practices, that it will provide complainant a work place free
from hostility, offensive conduct or abuse, and that no reprisal will
be taken against complainant for filing and pursuing this or any other
complaint under federal EEO law.
3. Within 180 days of the date this decision becomes final, the agency
shall provide EEO training to the responsible agency officials focusing
on the agency's obligation under the Rehabilitation Act to provide
reasonable accommodations.
4. Within 180 days of the date this decision becomes final, the agency
shall consider taking disciplinary action against the responsible
agency officials for violating the Rehabilitation Act. The agency shall
report its decision to the Commission. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reasons(s)
for its decision not to impose discipline.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its VA Medical Center, Loma Linda,
California facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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) (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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 15, 2009
__________________
Date
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0120072115
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072115