01985311
03-23-2000
Vernon R. Coburn, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Vernon R. Coburn v. Department of the Navy
01985311
March 23, 2000
Vernon R. Coburn, )
Complainant, )
) Appeal No. 01985311
) Hearing No. 310-97-5333X
v. ) Agency No. 96-83447-004
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Complainant filed a timely appeal<1> with this Commission from a final
agency decision (FAD) concerning her claim for attorney fees as the
prevailing party in her complaint of unlawful employment discrimination
on the basis of race (African American) and sex (female), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<2> The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission AFFIRMS the FAD.
The issue presented is whether the agency's assessment of reasonable
attorney's fees was proper in the award of $4,476.69.
The record reveals that during the relevant time complainant was
employed as a Contract Surveillance Representative at the agency's
Naval Air Station-Joint Reserve Base in Forth Worth, Texas. She filed
a formal complaint claiming that she had been discriminated against by
her supervisor (S) as evidenced by the following three incidents: (1) S
assigned her as a back-up to a White male on a job order contract; (2) S
required her to provided more detailed status reports than her White male
co-workers; (3) S did not address a situation where a White male cursed
at her during a meeting. The agency investigated the complaint, and an
EEOC Administrative Judge (AJ) conducted a hearing. In her Recommended
Decision (RD), the AJ found that complainant prevailed on only the issue
as described in incident 2 above. As a remedy, the AJ ordered the agency
to post a Notice regarding its Title VII violation concerning incident 2,
and also awarded complainant reasonable attorney's fees.
In pertinent part, the agency's FAD adopted the AJ's RD, and instructed
complainant to submit a petition for attorney's fees. In this petition,
complainant's attorney requested a total of $13,430.07 for attorney's
fees. In response, the agency asked the attorney to submit a more
detailed itemization of his fees given that complainant had prevailed on
only one issue of her complaint. However, the attorney answered that
this was impossible because all three issues were intertwined and the
amount of time spent on each was inseparable. He then claimed a total
amount of $13,507.77 for attorney's fees. Using the fee total from the
original petition, the agency reduced the amount by two-thirds and made
a partial fee award of $4,476.69.
On appeal, complainant's attorney argues that the complaint encompassed
one "intertwined" claim of discrimination, sharing a common core of facts
and common legal theories, representing a "pattern of discrimination."
Consequently, the attorney argues that complainant prevailed on this
entire claim by prevailing on the issue in incident 2, further noting
that she was awarded a substantial amount of the relief sought, such that
the entire amount of attorney's fees in his petition should be awarded.
The agency disputes this analysis, arguing that the three incidents
comprising the complaint are not "intertwined" and that they do not
represent a "pattern of discrimination" given that discrimination was
proved regarding only a single issue. The agency contends that when an
attorney is unable to itemize his petition to reflect the time spent on
the prevailing issue, an across-the-board reduction is appropriate.
The starting point for determining the amount of reasonable attorney fees
is the number of hours reasonably expended, multiplied by a reasonable
hourly rate, an amount known as the "lodestar." Bernard v. Department
of Veterans' Affairs, EEOC Request No. 01966861 (July 17, 1998).
In the instant case, the amount of the lodestar is not at the heart
of the dispute. The agency does not challenge the number of hours or
hourly rate used to calculate the total amount requested in the original
fee petition, and, on appeal, complainant's attorney does not challenge
the agency's use of the original fee petition amount as the lodestar,
as opposed to the slightly higher fee claimed in the second petition.
Accordingly, we find that this issue is not in dispute and that the
parties accept the amount of $13,430.07 as the lodestar.
Instead, the dispute in this case is whether a reduction of the lodestar,
or a "partial fee award" is appropriate in light of the fact that
complainant prevailed on only one issue of her complaint. In reviewing
the record, we concur with the FAD that the facts and issues of this
case are not "intertwined" in such a manner as to warrant the entire
award of attorney's fees claimed. Although each incident may properly
be considered complainant's offer of evidence of S's discriminatory
animus toward her, i.e.,the "core" of her entire claim, each incident
must then be separately analyzed in order to determine whether it does,
in fact, support complainant's claim of discrimination. To this end,
the agency accepted and investigated each incident. Subsequently, the AJ
analyzed each incident as a separate "issue," and made a separate ruling
as to each, finding in complainant's favor on only the issue concerning
incident 2, thereby rejecting the others as evidence of discrimination.
Based on our review, we discern no "interrelatedness" other than each
incident being offered as evidence of S's discriminatory animus toward
complainant. Additionally, we find that these three incidents are not
part of a "pattern of discrimination" because only incident 2 was found
to be motivated by discrimination.<3> Furthermore, we do not find that
complainant was able to prevail in recovering the substantial portion
of the relief sought under the entire discrimination claim, which in
this case was compensatory damages, because the AJ determined that she
presented insufficient evidence to support an award of compensatory
damages. As indicated above, complainant's only recovery was the Notice
posting and attorney's fees regarding incident 2, and we note that the
AJ did not consider S's conduct in incident 2 to be so egregious as to
order remedial training for S or other involved management personnel as
a measure to insure future compliance with the provisions of Title VII.
We find that such a small recovery significantly undercuts the argument
that complainant prevailed on the entire claim. Moreover, the remedy
obtained is one of many factors which may be considered in setting a
fee award. See Block v. United States Information Agency, EEOC Appeal
No. 01961573 (June 10, 1998).
It is well settled that in cases in which a complainant does not
prevail on every issue, fees are only available for the work that was
performed with regard to the issue(s) on which the complainant prevailed.
Rather than attempt the often impossible task of deciding which work
pertained to what issue, the Commission's approach is to take a percentage
across-the-board reduction of the hours claimed. McGinnis v. Department
of Defense, EEOC Request No. 05920150 (July 15, 1992). Accordingly,
because complainant prevailed on only one of her three issues, we find
that the FAD's reduction of the lodestar by two-thirds is appropriate,
and the partial award of $4,476.69 is the correct amount of attorney's
fees in this case.
In conclusion, based upon a review of the record herein, it is the
decision of the Commission to AFFIRM the FAD awarding attorney's fees
in the total amount of $4,476.69, and to advise the agency that this
amount is to be paid to complainant as the prevailing party, pursuant to
Cerney v. Department of the Army, Request No. 05939899 (October 19, 1994).
In light of this determination, we find that complainant is not entitled
to an award of attorney's fees for time spent pursuing the instant appeal.
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 (S1199)
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. 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:
3/23/00
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
1Complainant also filed two additional appeals regarding this same issue,
which were docketed by the Commission as Appeal No. 01985431 and Appeal
No. 01985443. Both of these appeals were administratively dismissed as
duplicates on September 1, 1998.
2On 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.
3We note that complainant does not claim that these incidents constituted
harassment, and in light of the AJ's ruling, she would not have prevailed
on a harassment claim, and would not have been entitled to a greater
amount of attorney's fees than awarded herein.