01A31792
09-15-2004
Virginia C. Janise, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Virginia C. Janise v. United States Postal Service
01A31792
September 15, 2004
.
Virginia C. Janise,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31792
Agency No. 4G-770-0330-99
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning the amount of attorney fees awarded by the agency. For the
following reasons, the Commission modifies the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Letter Carrier at the agency's Tobe Hahn Post Office
in Beaumont, Texas. Complainant filed a formal complaint alleging
that she was discriminated against because of her race (Caucasian),
sex (female), and disability (right foot injury) when on March 17,
1999, she was taken off Carrier Route 394 after having been awarded it
through the bid process. On March 1, 2001, following a request for an
immediate agency decision, the agency issued a notice of final action
concluding that complainant was not discriminated against on any of
her proffered bases. Complainant successfully, appealed the FAD
to the Equal Employment Opportunity Commission (EEOC or Commission)
in Janise v. United States Postal Service, EEOC Appeal No. 01A13359,
(September 19, 2002). In that decision the Commission found that the
agency violated Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq., when complainant was denied her bid position.
The Commission awarded full make whole relief, including attorney fees.
Per the order in the Commission's decision, the agency's final order
requested that complainant submit an attorney's fee petition in accordance
with 29 C.F.R. � 1614.501(e). Complainant's attorney (CA) submitted
a fee petition for $6,040.00 for 30.20 hours of work at an hourly rate
of $200 per hour. Subsequently, CA also submitted a fee petition for
her work on complainant's compensatory damages claim in the amount of
$1,320.00 for 6.60 hours of work.
In reviewing the $200.00 hourly rate requested by CA, the agency
determined that the rate was too high for work performed in 2001 by
an attorney with six years experience, and that a rate of $150.00 was
more appropriate. The agency then found that most of CA's time entries
were excessive or lacked sufficient detail to make a determination on
the reasonableness of the time expended and awarded only 14.1 of the
30.20 hours requested by CA in the first fee petition and only 5.6 of the
6.0 hours requested in the second fee petition. In decisions issued on
January 21, 2003, and July 29, 2003, respectively, the agency reduced
CA's requested hourly rate to $150 per hour, and awarded CA fees in
the amount of $2,115.00 for the work on the appeal which resulted in
the finding of discrimination and $840 for her work on complainant's
compensatory damages claim.
On appeal, complainant, through counsel contended that the hourly rate was
reasonable and customary and was documented by the affidavits supporting
the fee petition. Additionally, CA contended that the agency improperly
reduced the hours requested in the fee petition in view of the fact
that CA only received complainant's case after the FAD was issued and
while the thirty day time frame for filing an appeal was running. This,
CA contended, required that she spend a great deal of time to review
the file, do research, and review other crucial information in order to
develop complete and accurate information regarding the case in order to
prepare and draft the successful brief supporting complainant's appeal.
CA also contended that the attorney client privilege covered the time
challenged by the agency that she spent in discussions with her client.
Further, she contended that it should be obvious that the time was
spent on matters related to the case such as reviewing the report of
investigation (ROI) and the FAD with complainant to ensure that all
matters relevant to the case were discussed and addressed, as well
as informing complainant of the status of her case and the law as it
applied to her. Lastly, CA requested an additional two hours for time
spent preparing and responding to the agency's FAD on attorney's fees.
In response, the agency requested that the Commission affirm its award of
attorney's fees and noted, in relevant part, that CA failed to respond to
the agency's contention that the 4.3 hours spent �editing and adding to
brief� after the CA's brief was filed should be disallowed. Moreover,
the agency contended that while CA declined to provide specific details
with regards to the subject matter of her discussions with complainant,
the agency had a right to receive sufficient information to determine
whether the time spent was reasonable, necessary and applicable to the
case for which the fees were requested.
LEGAL STANDARD
1. Reasonable Hourly Rate
By federal regulation, an agency may award the applicant reasonable
attorney's fees, in accordance with existing case law and regulatory
standards, incurred in the processing of an EEO complaint. 29 C.F.R. �
1614.501(e). The fee awarded is normally determined by multiplying
the number of hours reasonably expended on the case by a reasonable
hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart,
461 U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B). The attorney
requesting the fee award has the burden of proving, by specific
evidence, his or her entitlement to the requested amount of attorney's
fees and costs in the matter. Copeland v. Marshal, 641 F.2d 880, 892
(D.C. Cir. 1983).
Reasonable hourly rates are measured by the prevailing market rates
in the relevant community. Blum v. Stenson, 465 U.S. at 895; Brent
v. Department of the Air Force, EEOC Request No. 05901175 (January 8,
1991). The best evidence of a reasonable hourly rate for the community
in general is the hourly rate customarily charged by the attorney or law
firm for fee-paying clients. National Association of Concerned Veterans
v. Secretary of Defense, 675 F.2d 1319, 1325 (D.C. Cir. 1982); Cooley
v. Department of Veterans Affairs, EEOC Request No. 05960748 (July 30,
1998); Della v. General Services Administration, EEOC Request No. 05920094
(April 14, 1992).
In this case, complainant's attorney filed a fee petition which calculated
the hours billed at an hourly rate of $200.00 per hour for work performed
from March 29, 2001 to December 20, 2002, including a supplemental fee
petition for attorney's fees for complainant's compensatory damages claim.
CA averred that in 2001 her hourly rate was $200 per hour, and that this
rate was well within the usual and customary hourly rate in her locale.
CA stated in her verified affidavit that she had been in private practice
continually since 1994 and submitted the names of cases against the agency
wherein she was awarded attorney fees of $200 per hour. Further, CA
stated that she was an Adjunct Professor for Baylor University School of
Law since 1996 and taught in the area of employment relations; conducted
training seminars for union representatives and human resource officials
on employment issues; and was involved in labor arbitration cases.
CA included two declarations from other employment attorneys in McLennan,
Texas, with more extensive experience than CA, who averred that as of
2001, the rate of $200-$250 per hour was a reasonable and customary
rate for attorneys with CA's experience practicing employment law in
McLennan, Texas.
In response, the agency contended that the affidavits submitted in
support of CA's hourly rate did not meet the standard required by the
Commission in that neither affidavit identified the rate the attorneys
normally charged nor the basis of their conclusion of what a reasonable
hourly rate is. We note that while including the rates that they charged
would have substantially strengthened CA's fee petition, that level
of detail is not required, whereas here both affidavits were submitted
by attorneys with considerable more employment law experience than CA
and they both averred that the $200.00 was reasonable and consistent
for the locale and for CA's experience. We also note that other than
its bare assertion, the agency provided no persuasive evidence that its
determination of $150.00 hourly rate was reasonable and customary for
someone with CA's experience in Texas during the period in question.
Therefore, without persuasive evidence to the contrary, and based on
the credible statements of CA and other practice attorneys in the area,
the Commission finds that CA's requested rate of $200.00 per hour is
supported by the evidence in the record.
2. Reasonable Hours Expended
In determining the number of hours reasonably 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.� Hensley,
461 U.S. at 437, n.12. However, the attorney does have the burden of
identifying the subject matters in which she spent her time, which
can be documented by submitting sufficiently detailed contemporaneous
time records to ensure that the time spent was accurately recorded.
National Association of Concerned Veterans v. Secretary of Defense,
supra. 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." Hensley, at 434.
After a careful review of the fee petition and the briefs submitted
on appeal, we agree with the agency's determination that the following
portions of complainant fee petition, totaling 8.4 hours, were excessive
or lacking sufficient information to support the full award of the
hours requested: (1) CA noted that on April 5, and 11, 2001 she had
�discussions with client� about her case for 3.30 hours, but did not
indicate the nature of the discussion; (2) CA noted that she spent 4.30
hours �drafting documents: editing and adding to brief� and �drafting
documents: final draft,� on April 28 and 29, 2001; however, according to
CA's certification in the brief that was received by the agency on May
2, 2001, the brief was filed on April 27, 2001; (3) CA also noted that
on April 30, 2001, she had a �discussion with client,� for .80 hours
without further elaboration. In contentions (1) and (3), we find that
CA could, and should, have provided more detail about the nature of the
discussions she had with her client. While CA contends on appeal that
it should have been obvious that the time requested was spent on matters
related to the case such as reviewing the report of investigation (ROI)
and the FAD with complainant to ensure that all matters relevant to
the case were discussed and addressed, the onus was on CA to include
this information in the fee petition. We further note, that this
information would not have violated any attorney client privilege and,
much like the information that CA provided in the fee petition about her
September 27, 2002 discussion with complainant on compensatory damages,
was exactly the type of information that would have allowed the agency to
determine if the time requested was reasonable and necessarily expended
on complainant's claims. Accordingly, we find that the two (2) hours
awarded by the agency was reasonable and approve the 2.1 hours reduction.
In regards to contention (2), we note, as did the agency that in
complainant's appeal, CA failed to respond to the agency's contention
that the 4.3 hours spent �editing and addition to brief� occurred after
the appeal brief was filed. Complainant provided no evidence that an
amended brief was submitted or that the date as listed was erroneous, or
any persuasive explanation to support the hours requested; accordingly,
the full 4.3 hours were properly disallowed. Therefore, we find that
the agency properly reduced complainant's fee petition by 6.4 hours.
With respect to the remaining 23.8 hours, we find that the time spent by
CA was reasonable and necessary in view of the short time frame that CA
had in which to meet with complainant, review the record, and formulate
appropriate arguments for complainant's successful appeal. Additionally,
we find that the 6.6 hours requested by CA for preparing complainant's
compensatory damages submission to be reasonable and necessary for
developing, preparing, and submitting the required documentation to
support complainant's claim. Finally, we find that the two (2) hours
requested by CA to draft her brief in support of the fee petition was
reasonable.
CONCLUSION
Accordingly, CA is entitled to an award of 23.8 hours for her work on
complainant's initial appeal, 6.6 hours for complainant's compensatory
damages submission, and 2 hours for the brief supporting the instant
appeal, for a total of 32.4 hours. The 32.4 hours awarded are to be
paid at the rate of $200.00 per hour, for a total of $6480.00. We note
however, that the agency has already awarded complainant 19.7 hours,
as such, after subtracting the $2955.00 (19.7 x 150) already awarded by
the agency, complainant would be entitled to an additional $3525.00.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we modify the agency's
final decision. The agency is directed to take remedial actions in
accordance with this decision and Order below.
ORDER (C0900)
(1) Pay to Complainant's counsel attorney's fees in the amount of
$6080.00, less any amount already paid by the agency. The agency shall
tender such payment in full to Complainant's counsel no later than sixty
(60) calendar days after the date on which this decision becomes final.
(2) The agency shall also pay to Complainant's counsel $400.00 in
reasonable attorney's fees and costs incurred in pursuit of this
appeal. The agency may tender this payment separately, or together with
the payment specified in paragraph (1) of this Order. If this payment
is tendered separately, the agency shall tender it to Complainant's
counsel no later than sixty (60) calendar days after the date on which
this decision becomes final.
(3) 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
September 15, 2004
__________________
Date