01980715
01-13-2000
Virginia A. McCann, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Virginia A. McCann v. Department of the Air Force
01980715
January 13, 2000
.
Virginia A. McCann,
Complainant,
v.
F. Whitten Peters,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01980715
Agency No. INOD93001/2
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning her claim for attorney fees and costs as
prevailing party in her complaint of unlawful employment discrimination
on the basis of reprisal (prior EEO activity), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001. For
the following reasons, the Commission AFFIRMS the FAD as MODIFIED herein.
The issue presented is whether the agency's assessment of the number
of hours reasonably expended and the assessment of the reasonable costs
incurred by complainant was proper in the award of $39,521.00.
The record reveals that during the relevant time, complainant was
employed as a Family Advocate Program Specialist, at the Air Force Base
in Incirlik, Turkey. She filed a formal complaint claiming that she was
terminated and that her performance appraisal was changed due to unlawful
sex discrimination and reprisal. A three day hearing was conducted by
an EEOC Administrative Judge (AJ), who also conducted a one day hearing
on the issue of compensatory damages.<2>
In his fee petition complainant's counsel requested compensation for 350.7
hours of work at $200.00 per hour for a total of $69,580.00. Costs were
requested in the amount of $3,968.56, for a grand total of $73,548.56.
In its FAD, the agency points out mathematical errors and provides a
corrected grand total of $74,109.56. The FAD then reduces the amount
of pre-complaint services requested in the fee petition from 39.8 hours
to 37.8 hours, noting that only two hours of pre-complaint services is
appropriate. The FAD then identifies fourteen items as "unnecessary"
regarding the pre-hearing preparation of certain letters and motions,
and certain phone calls and conferences, excluding an additional 18.1
hours of services. The FAD then determined that 10.4 hours was not
adequately described regarding items of client contact, and another
4.3 hours was excluded for "unexplained" research. The FAD then noted
that complainant was the prevailing party as to only one of her claims,
excluding 5.7 hours as specifically related to services regarding the
performance appraisal claim, and then reducing the remaining balance of
274.4 hours by one-fourth estimating that about three quarters of the
services in this amount of time was expended on the merits portion of
the termination issue. After this calculation, the new balance was 205.8
hours of time reasonably expended in the case. The attorney's requested
hourly rate of $200.00 per hour was deemed reasonable, and $100.00 per
hour of travel time deemed reasonable by the agency was not contested on
appeal. Based on a "lodestar" computation, the total amount of attorney's
fees was determined to be $39,160.00. The FAD then discounted all costs
submitted which were not documented, resulting in the acceptance of only
the travel expenses of one witness in the amount of $361.00. The grand
total of the award of attorney's fees and costs was $39,521.00.
On appeal, complainant's attorney argues that the pre-complaint services
were warranted because of the agency's attempts to prevent and delay the
processing of the complaint. The attorney also argues that all of the
"unnecessary" time was necessary, explaining that much of it was done
at the direction of the AJ. As to the exclusion of the 10.4 hours,
the attorney argues that he was engaged in client contact involving
the status of the complaint processing, and that to deny these fees
would result in further victimization of complainant. The attorney then
asks for restoration of the 4.3 hours deducted from research time, but
provides no reason, and also asks for restoration of the 5.7 hours spent
on the performance appraisal claim because the FAD held that complainant
substantially prevailed on her complaint. The attorney then contends that
the 25 % reduction of the remaining balance was arbitrary, capricious
and unsupported, and that .016 % should instead be excluded based on
the number of pages of testimony on this claim. Regarding the costs,
the attorney argues that the agency refused to communicate on the issue
of costs, and that the claimed costs should be awarded because they
obviously were incurred notwithstanding the lack of documentation. The
attorney also requests that interest be paid on the award for the ten
month delay in issuing the FAD.<3>
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 determining the number of hours expended, the Commission
recognizes that the attorney "is not required to record in great detail
the manner in which each minute of his time was expended." See Bernard,
supra. However, the attorney does have the burden of identifying the
subject matters in which he spent his time, which can be documented by
submitting sufficiently detailed contemporaneous time records to ensure
that the time spent was accurately recorded. See Bernard, supra.
Further, a reasonable fee award may be assessed in light of factors such
as: (1) the time required (versus time expended) to complete the legal
work; (2) novelty or difficulty of the issues; (3) the requisite skill
to properly handle the case; (4) the degree to which counsel is precluded
from taking other cases; (5) the relief sought and results obtained; and,
(6) the nature and length of the attorney client relationship. See Cerny
v. Department of the Army, EEOC Request No. 05930899 (October 19, 1994).
An applicant for attorney's fees is only entitled to an award for time
reasonably expended. It does not always follow that the amount of time
actually expended is the amount of time reasonably expended. Elvin
v. Department of Labor, EEOC Request No. 01943425 (August 31,
1995). Rather, "billing judgement" is an important component in fee
setting, and hours that would not be properly billed to a private client
are also not properly billed to the agency pursuant to a successful
EEO claim. Id. Counsel for the prevailing party should make a "good
faith effort to exclude from a fee request hours that are excessive,
redundant or otherwise unnecessary." See Bernard, supra.
Under 64 Fed. Reg. 37644, 37660, (1999)(to be codified at 29
C.F.R. �1614.501(e)(1)(iv)), an attorney is entitled to a reasonable
amount of time to decide whether to take a case, generally two to three
hours, but, except under very limited circumstances, pre-complaint
services are generally not compensable.<4> Vincent v. Department of the
Army, EEOC Request No. 05941012 (February 27, 1996) In the instant case,
the attorney describes numerous circumstances where the agency tried to
avoid engaging in the EEO process. We find that given that the agency's
EEO office was in Turkey, and that complainant was forced to move back
to the United States after her unlawful termination, a certain amount of
mis-communication and misunderstanding was very likely generated during
this long distance EEO process, whether intentional or not. Although the
attorney's services were probably very helpful during the pre-complaint
phase, the Commission's law and regulations, as cited above, preclude
an award of attorney's fees for pre-complainant services as described
here. Accordingly, we agree with the FAD that two hours of pre-complaint
services is compensable, and 37.8 hours of services must be excluded. The
resulting balance is 312.9 hours.
Our review of the record also reveals that the 18.1 hours of "unnecessary"
time regarding prehearing conferences, phone calls, and motions
actually does appear to have been necessary, and that as pointed out by
complainant's attorney on appeal, much of it was done at the direction,
or because of the directions, of the AJ. Accordingly, we find that this
18.1 hours should be restored. The resulting balance remains 312.9 hours.
However, we find that the agency appropriately deducted the 10.4 hours of
"client contact," the 4.3 hours of "unexplained research time," and the
5.7 hours specifically related to the performance appraisal claim, and
that complainant's attorney did not provide an adequate justification for
any of these services on appeal. The resulting balance is 292.5 hours.
Moreover, although we agree with the rationale set forth by the FAD
justifying the overall 25 % reduction as the apportionment to the
appraisal claim, we nevertheless find that 20 % is a more equitable set
off given the 5.7 hours already deducted for this reason. The resulting
balance is 234.0 hours.
Therefore, making the lodestar calculation, and combining that
total ($46,800.00) with the $2,000.00 awarded for travel time, we
find that the total amount properly awarded for attorney's fees is
$48,800.00. Additionally, we find that the FAD appropriately deducted
those costs which were not documented, as specifically set forth as
a requirement in the prior FAD, and we note also that no reason is
provided as to why this documentation was not included in the fee
petition. Hafiz v. Department of Defense, EEOC Petition No. 04960021
(July 11, 1997). Therefore, adding the $362.00 in documented costs, we
find that a total fee amount of $49,162.00 is appropriate in this case,
and we MODIFY the FAD accordingly.
In conclusion, based upon a review of the evidence, and for the reasons
stated above, the decision of the Commission is to MODIFY the FAD and
to award attorney's fees to complainant as the prevailing party in the
total amount of $49,162.00. Accordingly, the agency must comply with
the following ORDER:
ORDER
The agency must issue a check to complainant in the amount of $49,162.00,
within fifteen (15) calendar days of the date this decision becomes
final. The agency shall submit a report of compliance, as provided
below. The record must include documentation to verify that the action
has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644,
37,659-60 (1999)(to be codified and hereinafter referred to as 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)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See
64 Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter referred
to as 29 C.F.R. � 1614.409).
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 13, 2000
__________________
Date
1On 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.
2The AJ's Recommended Decision is not of record, but we note that the
agency issued a FAD finding discrimination based on reprisal (but not sex)
regarding the termination, and found no discrimination on the bases of
reprisal or sex regarding the performance appraisal issue. It does not
appear that this determination has been appealed by complainant. However,
two appeals have been initiated by the complainant regarding the award
of compensatory damages.
3Although the Commission has held that interest is available to compensate
for the loss in the value of money that results from a delay in payment,
such an award has generally been restricted to those situations where the
Commission has authorized a specific award of attorney's fees and the
agency unduly delayed in making the payment. See Cole v. U.S. Postal
Service, EEOC Petition No. 04950009 (February 19, 1997). Here, the
amount was continuously in dispute between the agency and complainant's
attorney during the period of "delay," and although we advise the agency
to endeavor to process attorney's fees petitions in a more expeditious
manner, we do not find that these circumstances warrant the award of an
interest fee.
4The new regulations provide that fees will be available for work
performed prior to the filing of the formal EEO complaint only when
the agency does not implement an AJ's finding of discrimination and the
Commission subsequently affirms the AJ's decision.