0120093008
11-17-2009
Zina D. Coffee, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Zina D. Coffee,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093008
Agency No. ARRRAD06AUG03964
DECISION
On July 10, 2009, complainant filed an appeal concerning her equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S. C. � 2000e et. seq. For the following reasons, the Commission
MODIFIES the agency's final decision.
ISSUES PRESENTED
On appeal, complainant challenges the attorney's fees awarded by the
agency.
BACKGROUND
The instant appeal stems from the agency's reduction of requested
attorney's fees for work performed by complainant's attorney in
connection with a compensatory damages award granted to complainant.
Complainant filed an EEO complaint with the agency on October 12, 2006,
alleging discrimination on the basis of race (Black) when the agency
failed to take corrective action when during a three-month temporary
duty assignment, and upon her return to her permanent work station
complainant was harassed by a co-worker. An EEOC Administrative Judge
(AJ) issued a decision on September 30, 2008 finding that complainant
had been discriminated against on the basis of race and ordered an award
of $75,000.00 in compensatory damages.
The agency issued a final order rejecting that portion of the AJ's
decision awarding compensatory damages and subsequently filed an appeal
with the Commission. See Coffee v. Department of Defense (Army), EEOC
Appeal No. 0720090012 (March 13, 2009). Therein, the Commission reversed
the agency's final action and upheld the AJ's decision. The Commission's
decision ordered the agency to award complainant attorney's fees and costs
associated with the processing of the appeal. The record shows that on
June 17, 2009, the agency received a verified statement of attorney's
fees and costs submitted by complainant's counsel and dated May 29, 2009.
Complainant's attorney requested $7,425.00 in fees (21 attorney hours
at $350/hour and 1 paralegal hour at $75/hour) and $25.62 in costs.
In its decision dated July 8, 2009, the agency did not contest the
number of hours claimed or the costs submitted. Rather, the agency
challenged the hourly rate claimed by the attorney. The agency found
that complainant's attorney used hourly rates applicable to attorneys
practicing in the Tidewater area1 where the practice is located, rather
than the legal community of Texarkana, Texas where the case arose.
Therefore, the agency reduced the hourly rate and concluded that
complainant was entitled to payment of $4,825.62 in attorney's fees and
costs
CONTENTIONS ON APPEAL
On appeal, complainant argues that when the agency refused to implement
the decision of the AJ in this matter and filed an appeal with the
Commission's Office of Federal Operations, she found it necessary to
obtain legal counsel from outside the Texarkana, Texas area to represent
her in opposing the agency's appeal. Complainant argues further that
she located competent out-of-town counsel experienced in federal EEO
matters, and is entitled to attorney's fees based on the community where
that counsel's practice is located.
ANALYSIS AND FINDINGS
Title VII authorizes the award of reasonable attorney's fees, including
for an attorney's processing of a compensatory damages claim. 29 C.F.R. �
1614.501(e). To establish entitlement to attorney's fees, complainant
must first show that he or she is a prevailing party. Buckhannon Bd. and
Care Home Inc. v. West Virginia Dept. of Health and Human Resources,
532 U.S. 598 (2001). A prevailing party for this purpose is one who
succeeds on any significant issue, and achieves some of the benefit
sought in bringing the action. Davis v. Department of Transportation,
EEOC Request No. 05970101 (February 4, 1999) (citing Hensley v. Eckerhart,
461 U.S. 427, 433 (1983)).
The fee award is ordinarily determined by multiplying a reasonable
number of hours expended on the case by a reasonable hourly rate, also
known as a "lodestar." See 29 C.F.R. � 1614.501(e)(2)(ii)(B); Bernard
v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17,
1998). The reasonable hourly fee is the prevailing market rate in the
relevant community. Blum v. Stenson, 465 U.S. 886 (1984). A petition
for fees and costs must take the form of the verified statement required
by the Commission's regulations at 29 C.F.R. � 1614.501 (e)(2)(i).
If a party does not find counsel readily available in that locality with
whatever degree of skill may reasonably be required, it is reasonable
that the party go elsewhere to find an attorney. Southerland v. United
States Postal Service, EEOC Appeal No. 01A05403 (October 16, 2002)
(citation omitted). On the other hand, if a high-priced, out of town
attorney renders services which local attorneys could do as well,
and there is no other reason to have them performed by the former,
then it may be appropriate to allow only the hourly rate which local
attorney's charged for the same service. Id. The burden is on the
agency to show that complainant's decision to retain out-of-town counsel
was unreasonable. Id.
The agency's final decision concluded that complainant's attorney is
only entitled to the hourly rates commonly charged for EEO work in the
Texarkana, Texas area, where the case arose and where the hearing was
held. In addition, the agency asserted that complainant's attorney did
not possess the requisite skill and experience to justify an hourly fee of
$350.00. While the agency acknowledged that the law firm represented by
complainant in this matter had in the past been awarded attorney's fees of
$350 per hours, it maintains that complainant's individual attorney, who
is a partner at the law firm, is not entitled to such an hourly rate.
In the present case, we find that complainant has submitted adequate
evidence that the rate she requested is consistent with the prevailing
market rate for an attorney with 10 years of experience in employment law
in the Tidewater area. Complainant's attorney has submitted, on appeal,
an affidavit from another practitioner working in federal employment law,
based in Virginia Beach, VA, testifying to the skill and qualifications
of complainant's attorney in addition to the practitioner's own hourly
rate of $350 which has been approved before the EEOC as well as the Merit
System's Protection Board. We also find it reasonable that complainant
sought out-of-town counsel with relevant experience and a proven track
record of success in receiving favorable outcomes for its clients.
Based upon the evidence submitted in support of the verified fee petition
herein, we find that $350.00 is a reasonable hourly rate to be applied
in this matter.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we hereby MODIFY the
agency's final decision awarding attorney's fees and direct the agency
to pay attorney's fees as set forth in the Order herein.
ORDER
Within thirty (30) calendar days of the date this decision becomes
final, to the extent it has not already done so, the agency shall pay
complainant $7,425.00 (21 attorney hours at $350/hour and 1 paralegal
hour at $75/hour) and $25.62 in costs. In addition, as complainant has
prevailed in the instant attorney's fees appeal, the agency shall also
promptly process and pay reasonable attorney's fees and costs associated
with this appeal. Documentation showing that such payments have been
made shall be sent to the Compliance Officer as referenced below.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 this
decision becoming final. 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
November 17, 2009
__________________
Date
1 Tidewater area refers to the area of Virginia near Hampton Roads in
eastern Virginia.
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0120093008
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093008