Virginia A. McCann, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJan 13, 2000
01980715 (E.E.O.C. Jan. 13, 2000)

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.