0120162729
01-31-2018
Vaughn C,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vaughn C,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120162729
Petition No. 0420160004
Appeal No. 0120123332
Agency No. 8I1M11013
DECISION
On August 22, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 19, 2016, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in 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 Security Specialist at the Agency's Eglin Air Force Base facility in Florida.
Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American), color (Black) and national origin (American) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In Appeal No. 0120123332, this Commission found that the evidence established that Complainant was subjected to unlawful ongoing racial harassment that resulted in his constructive discharge.
To remedy this discrimination, our previous decision ordered the Agency to reinstate Complainant to the position he would have been absent the harassment and constructive discharge. The Agency was also ordered to provide Complainant with back pay with interest and benefits from the date he ceased receiving pay from the Agency until the date he is reinstated or declines the Agency's offer of reinstatement. The Agency was also ordered to pay attorney's fees and costs, as well as to adjudicate Complainant's claim for compensatory damages.
The matter was assigned to an EEOC Compliance Officer and docketed as Compliance No. 0620150030 on October 9, 2014, who monitored the Agency's compliance with these orders. On December 10, 2015, Complainant submitted his first petition for enforcement at issue. Complainant contends that the Agency failed to provide Complainant with any back pay. He also noted that once he was reinstated at the Agency, he was incorrectly notified that he had been overpaid by the Agency in the amount of $14,634.05, and that his pay is being reduced by $267.37 each pay period in order to repay this debt. Finally, Complainant contends that the Agency's awards of compensatory damages and attorney's fees and costs were incorrect and did not adequately compensate him.
In Petition No. 0420160004, the Commission granted Complainant's petition for enforcement. The decision found that the issues of compensatory damages and attorney's fees and costs were addressed in another separate appeal. The decision in Petition No. 0420160004 (April 15, 2016) clarified the Commission's back pay order. The decision held that Complainant should be awarded back pay from the date of his resignation (constructive discharge) until he started earning more than he would have earned if he had continued to be employed by the Agency. Because the decision granted Complainant's petition for enforcement, it also ordered that Complainant was entitled to an award of reasonable fees and costs for the Attorney in the processing of the petition for enforcement. The decision stated that the Attorney should submit a verified statement of fees to the Agency within 30 calendar days. The decision then held that the Agency shall process the claim for fees for the Attorney in accordance with 29 C.F.R. � 1614.501.
The Agency received the Attorney's itemized bill for fees on May 20, 2016. The bill sought fees for 35.2 hours at a rate of $ 425.00 an hour for a total of $ 14,960.00. The Agency noted that it had previously awarded the Attorney fees at an hourly rate of $ 325.00. On May 25 and June 1, 2016, the Agency asked the Attorney to provide a copy of her fee agreement with Complainant to support her new hourly rate of $ 425.00. On June 17, 2016, the Agency again asked for the Attorney to provide a copy of her fee agreement or any other declaration regarding her customary rate for fee-paying clients. The Agency noted that the Attorney failed to provide any supporting documentation for the increase in the Attorney's hourly rate. The Agency contacted state bar referral services and reviewed other federal cases to obtain comparison rates for the Attorney's hourly rate. The Agency held that the Attorney did not provide support for her hourly rate of $ 425.00 per hour and that it had previously awarded fees based on an hourly rate of $ 325.00 per hour. Based on a totality of the circumstances, the Agency agreed to compensate the Attorney at an hourly rate of $ 335.00. As such, the Agency granted the Attorney's request for compensation for 32.52 hours at a rate of $ 335.00 for a total of $ 10,887.50. The Agency mailed the Attorney a copy of the final decision on fees and included a check in this amount.
This appeal followed. On appeal, the Attorney argued that she provided the Agency with an itemized bill which enumerated the exact date, hours of preparation, work performed and hourly rate for the performance of legal services. The Attorney noted that it received a check from the Agency which was made out for $ 10,887.50. However, the check was written out for "Ten Thousand Eight Hundred Eighty-Eight Dollars and fifty cents." The Attorney noted that the Agency failed to comply with the time frame for awarding fees causing "unreasonable and unwarranted delay" by the Agency. As such, the Attorney asked that the Commission should award her the "full amount" requested in fees for the Agency's failure to comply within a reasonable time frame. The Agency asked that the Commission affirm its decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
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)(1)(ii). 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).
There is a strong presumption that the number of hours reasonably expended multiplied by a reasonable hourly rate, the lodestar, represents a reasonable fee, but this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency. 29 C.F.R. � 1614.501(e)(2)(ii)(B). The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-7. (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. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id. at p. 11-8.
The only contention on appeal is the Attorney's hourly rate. The reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skill, experience and reputation. See Blum v. Stenson, supra. The Agency indicated that it tried to obtain supporting evidence or documentation from the Attorney to support her new hourly rate of $ 425.00. The Agency stated that the Attorney failed to respond to their requests. The Attorney does not contest the Agency's assertions that it tried to obtain supporting documentation from her. A review of Complainant's record, we find that the Agency previously provided fees to the Attorney at a rate of $ 325.00 in its final decision on fees issued December 8, 2014. The Agency increased the Attorney's rate to $ 335.00 per hour based on its own investigation. The Attorney did not provide any documentation or evidence to support her claim for a rate of $ 425.00 per hour. As such, we discern no reason to overturn the Agency's finding regarding the Attorney's hourly rate.
Here, the Agency did not challenge the hours expended in the fee petition by the Attorney. As such, we find that the Attorney expended 35.2 hours on Complainant's petition for enforcement. We note that the Agency's fee calculation was not correct. The Agency transposed two digits and based its fee calculation on 32.5 hours, not 35.2. Due to this calculation error, we find that the Agency's award of fees for Complainant should be modified. We determine that Complainant is entitled to fees for the Attorney for 35.2 hours expended at an hourly rate of $ 335.00, or $ 11,792.00. The Agency issued a check in the amount of $ 10,887.50. As such, we find that the Agency owes Complainant $ 904.50.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFIES the Agency's final decision and REMAND the matter in accordance with the ORDER below.
ORDER
The Agency is ordered to pay Complainant $ 904.50 in fees for the Attorney within thirty (30) calendar days of the date this decision becomes final.
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). Further, the report must include evidence that the corrective action has been implemented.
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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 (R0610)
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 (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
January 31, 2018
__________________
Date
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.
2 We note that the Agency transposed numbers in its calculation of fees. The Attorney's petition for fees noted that the total hours expended on the petition for enforcement was 35.2 hours.
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