07a40057
03-31-2005
Troy Hesselrode, Complainant, v. Alberto Gonzalez, Attorney General, Department of Justice, Agency.
Troy Hesselrode v. Department of Justice
07A40057
03-31-05
.
Troy Hesselrode,
Complainant,
v.
Alberto Gonzalez,
Attorney General,
Department of Justice,
Agency.
Appeal No. 07A40057
Agency No. M02-005
Hearing No. 340-2002-3654X
DECISION
Following its October 23, 2003 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its final
decision awarding complainant attorney's fees in the amount of $4,511.36.
Complainant filed a complaint in which he claimed that the agency
subjected him to harassment because of his race (Caucasian) and previous
EEO activity when:
He was not permitted to work on high-profile assignments;
He was threatened with and subjected to internal affairs investigations;
He was intimidated;
His EEO activity was investigated by the acting chief deputy marshal; and
He was suspended for five days.
The agency investigated the complaint and referred it to an EEOC
Administrative Judge (AJ), who issued a decision finding liability only
with respect to incident (4) and ordering the agency to, inter alia,
award attorney's fees. The agency implemented the AJ's decision in its
final order.
The AJ subsequently issued a decision on the matter of attorney's fees.
Counsel had claimed $22,556.80 in fees, but the AJ found that a 50 percent
reduction in the fee request was appropriate, and consequently awarded
complainant $11,278.40. The agency appealed this determination, arguing
that complainant should only be awarded $4,511.36 in attorney's fees.
There is a strong presumption that the lodestar, i.e., the hourly rate
multiplied by the number of hours expended, represents a reasonable fee.
See 29 C.F.R. � 1614.501(e)(2)(ii)(B). Fee awards may, however, be
reduced in cases of limited success. Management Directive 110 (November
9, 1999), p. 11-7. The agency, as the party seeking a further downward
adjustment of the lodestar, has the burden of justifying that reduction.
See Id., at p. 11-8.
In its appeal brief, the agency attempts to justify reducing the fee
award by 80 percent by arguing that complainant prevailed on only
one out of five claims. We disagree with this characterization of
the complaint, by both the agency and the AJ. The complaint clearly
sets forth a single claim of harassment, supported by five incidents.
Only one of those incidents supported a finding of liability. The AJ took
that factor into consideration when she reduced the lodestar by half.
Given that the incident on which complainant prevailed was part of a
broader harassment claim, the AJ's decision to reduce the award by 50
percent was appropriate. We will therefore modify the agency's final
order in accordance with our order below.
ORDER (C0900)
Unless it has already done so, the agency shall award complainant
$11,278.40 in attorney's fees within thirty (30) calendar days of the
date that this decision becomes final..
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(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 (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____03-31-05______________
Date