0120083765
06-12-2012
Jose A. Jimenez, Complainant, v. Kathleen Sebelius Secretary Department of Health and Human Services (Centers for Medicare and Medicaid Services), Agency.
Jose A. Jimenez,
Complainant,
v.
Kathleen Sebelius
Secretary
Department of Health and Human Services
(Centers for Medicare and Medicaid Services),
Agency.
Appeal No. 0120083765
Agency No. 041-011-CMS
Hearing No. 110-2004-00325X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's August 29, 2008 appeal from the Agency's July 29, 2008 final decision concerning his entitlement to attorney's fees.
ISSUE PRESENTED
Whether the Agency properly awarded Complainant $12,320.95 in attorney's fees and $1,420 in costs.
BACKGROUND
On February 13, 2004, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination on the bases of race, national origin, religion, sex, and disability when, in late 2002 or early 2003, management failed to provide him with a reasonable accommodation; specifically, he was denied a low noise, low light work space and the ability to work at home two days per week.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The AJ held a hearing on January 24 and 25, and March 9, 2005, issued his decision on September 19, 2005.
In his decision, the AJ found that Complainant was a qualified individual with a disability. Further, the AJ found that the Agency made a good faith effort to accommodate Complainant's known disabilities with what it believed to be effective, if partly temporary, measures. However, the AJ found that from February 2003 through September 2003, the Agency's efforts to accommodate Complainant's known limitations were inadequate. Because the AJ found that the Agency failed to provide Complainant with a permanent, effective accommodation from February 2003 through September 2003, the AJ found that the Agency discriminated against Complainant. The AJ further found that given the Agency's good faith efforts to accommodate Complainant, Complainant was not entitled to compensatory damages for any injuries he sustained during the time he was not effectively accommodated. However, the AJ found that as a prevailing party, Complainant was entitled to an award of attorney's fees. The AJ found that a proper award of attorney's fees in this case was $7,500.00. The AJ also ordered the Agency to post a notice regarding the finding of discrimination and to provide instructions to Agency managers to avoid violations of this type in the future. The Agency subsequently issued a final order on October 28, 2005, fully implementing the AJ's decision.
On appeal, the Commission vacated the AJ's award of attorneys' fees and remanded the matter to the Agency.1 On June 11, 2008, Complainant's primary Attorney (A1) submitted a fee petition for $104,708.92.2 Subsequently, on July 29, 2008, the Agency issued a final decision awarding Complainant $12,320.95 in attorney's fees and $1,420 in costs. The Agency found that many of the billing entries in Complainant's itemized fee statement were vague, excessive, and duplicative.
Notwithstanding the fact that A1 and staff practice in the Washington, D.C. area, the Agency found that the prevailing rate for all legal services should be assessed according to the rates for the Atlanta, Georgia area. The Agency noted that Complainant lives and works in Atlanta and the case was assigned to the Atlanta District Office of the EEOC. As such, the Agency found that it was unreasonable for Complainant to receive the services of an attorney located in Washington, D.C.
The Agency also found that Complainant's need for a second attorney, A2, was unreasonable. As a result, the Agency denied A2's fees completely. The Agency noted that the case was not that complex that a second expert attorney was needed. The Agency further noted that A1 had the experience necessary to handle the case on his own.
The Agency further found that the 378 hours that Complainant's attorneys billed were unreasonable. In this regard, the Agency found that the only issue presented at the hearing was whether the Agency had unreasonably delayed in providing Complainant his requested reasonable accommodation. In this regard, the Agency indicated that Complainant's attorneys did not establish that the delay in accommodating Complainant was done in bad faith, or that it failed to engage in the interactive process. As a result, the Agency noted that Complainant lost the argument that he should be awarded pecuniary and non-pecuniary compensatory damages. The Agency also noted that Complainant dropped all issues before the hearing except for the matter of its alleged delay in providing the reasonable accommodation. As a result, the Agency, citing improper documentation, unreasonable hours spent, and the use of excessive and improper billing rates, reduced A1's fee petition by 75%.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, maintains that the Agency unjustly deviated from the lodestar calculation. Complainant further maintained that he provided sufficient documentation of the reasonableness of the hourly rate charged and that the Agency erred in concluding that the "Laffey matrix" was not a reasonable billing rate.3 According to Complainant, the Agency failed to satisfy its burden to establish that experienced local counsel was available in the Atlanta, Georgia area; therefore, the "Laffey Matrix" is the appropriate prevailing hourly rate.
Complainant further contended that the Agency's 75% across-the-board reduction of fees lacked justification. Complainant contended that the Agency improperly denied many entries from the fee petition. Complainant argued that the Agency improperly reduced fees pertaining to discovery, hearing preparation, the closing brief, and fee petition preparation. Complainant maintained that despite the fact that he received no compensatory damages, he should not be prevented from receiving his requested fees because he received substantial declaratory relief. Additionally, Complainant contended that the Agency's decision to deny fees related to pursuing settlement was unreasonable. Complainant further argued that the Agency erred in denying, in its entirety, A2's fee petition as duplicative and unnecessary.
ANALYSIS AND FINDINGS
The Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing complainant. 29 C.F.R. � 1614.501(e); see also EEOC's Management Directive 110 (MD-110) (Nov. 9, 1999) Chapter 11. Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. � 1614.501(e)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424 (1983).
All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant or otherwise unnecessary hours. MD-110 at 11-15. A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. MD-110 at 11-6. An application for attorney's fees must include a verified statement of attorney's fees accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. MD-110 at 11-9. While the attorney is not required to record in great detail the manner in which each minute of his time was expended, the attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. See Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). The attorney requesting the fee award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. National Ass'n of Concerned Veterans v. Dep't of Defense, 675 F.2d 1319 (D.C. Cir. 1982); Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003).
Determination of Reasonable Hourly Rate
The reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum v. Stenson, 465 U.S. 886 (1984). The Agency determined that Complainant should be awarded the prevailing rates for attorneys in the Atlanta, Georgia area where the action arose and was litigated. Conversely, on appeal, Complainant contended that the Washington, D.C. market rate should be used to determine the reasonable hourly rate for A1, A2 and their staffs. Thus, Complainant maintained that the Agency should have used the "Laffey Matrix" for the Washington, D.C. market rate. We note that the Commission and courts have held that the hourly rate for Washington, D.C. area attorneys is generally determined by the "Laffey Matrix."
The Commission also has found that if a party does not find counsel readily available in his or her locality with whatever degree of skill that may reasonably be required, it is reasonable that the party may go elsewhere to find an attorney even if it results in the payment of a higher hourly rate than the prevailing market in the location where the action arose. See Southerland v. U.S. Postal Serv., EEOC Appeal No. 01A05403 (Oct. 16, 2002). On the other hand, if a higher-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 out-of-town attorney, then it may be appropriate to allow only the hourly rate which local attorneys charged for the same service. Id. The burden is on the Agency, however, to show that Complainant's decision to retain out-of-town counsel was unreasonable. Id.
The Commission finds that the Agency has not presented sufficient evidence that Complainant's decision to use out-of-state counsel was unreasonable. In this regard, the Agency failed to provide any evidence that local counsel was available with the experience in this area of law or had practice experience with the EEOC like A1. In his affidavit, Complainant stated that he could not find a suitable attorney in Atlanta, so he contacted a union attorney who referred him to A1. We find that the Agency failed to provide evidence that Complainant acted unreasonably when retaining A1 as his counsel. Accordingly, we also find that it was appropriate in this case to use the Washington, D.C. hourly rate ("Laffey Matrix") rather than the Atlanta hourly rate. See Mohar v. U.S. Postal Serv., EEOC Appeal No. 0720100019 (Aug. 29, 2011) (finding the use of the "Laffey Matrix" was appropriate when the agency failed to demonstrate that the complainant acted unreasonably when retaining out-of-state counsel located in Washington, D.C.).
Reasonableness of the Second Attorney (A2)
Upon review, we find that A2's presence was duplicative and unnecessary, and his fee petition was properly disallowed. We note that both A1 and A2, among other things, billed for reviewing case file materials, reviewing discovery, travel time, telephoning Complainant, interviewing witnesses, and for hearing attendance and preparation. In particular, we note that on January 1, 2005, both A1 and A2 billed for hearing attendance and preparation totaling 16.5 hours. Also both billed for travel time from Washington, D.C. to Atlanta for hearing attendance and preparation. We also note that on August 3, 2004, and August 11, 2004, A2 billed for conference calls with A1. There has been no showing that this case was unusually complex or difficult as to require the presence of two expert attorneys. It is undisputed that A1 has more than 20 years of EEO legal experience, while A2 only had eight years of experience. We agree with the Agency that a second attorney's presence, in a case where an attorney with A1's level of experience is involved, merely duplicates services and should be disallowed. See Bynum v. Dep't of Veterans Affairs, EEOC Appeal No. 01A33384 (May 26, 2004) (finding that the complainant did not establish that her second attorney was required for the hearing); see also Hodge v. Dep't of Transportation, EEOC Request No. 05920057 (Apr. 23, 1992).
Reasonable Hours Expended
The Commission has ruled that when reviewing fee petitions which contain many excessive, redundant, unnecessary or inadequately documented expenditures of time, in lieu of engaging in a line-by-line analysis of each charge claimed, the Commission may calculate the number of hours compensable by applying an across-the-board reduction to the number of hours requested. See Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998).
After careful review of A1's fee statement, the Commission finds that the hours claimed by A1 are, in certain instances vague and inadequately documented. For example, under the title "Preparation for Hearing" and "Witness Preparation for Hearing; Hearing Preparation," dated January 20, 2005, and January 23, 2005, A1 billed Complainant for 13.5 hours without any indication of what work was performed. Further, on August 24, 2004, A1 billed for "Review of case documents: Research and prep with conference call with Judge," but provided no detail on what was researched or what documentation was reviewed. We also find that the fee petition indicates that a large number of people spent time working on this case for no readily apparent reason. Specifically, the fee petition indicates that this case was worked on by a total of 10 individuals, including three paralegals, and four law clerks. Finally, we also note that Complainant did not establish that the Agency acted in bad faith with respect to his accommodation request; therefore, he did not prevail in his claim for pecuniary and non-pecuniary compensatory damages. For the above reasons, we find that a 15% across-the-board reduction of attorney fees is appropriate in this case. See Mohar, EEOC Appeal No. 0720100019 (finding that a 15% across-the-board reduction of attorney's fees was warranted when complainant's fee petition simply reflected too much time spent by too many people); Hyde v. Dep't of Justice, EEOC Appeal No. 0120073964 (Nov. 24, 2009) (finding that a 10% across-the-board reduction was appropriate when a number of billing entries where not sufficiently detailed); and Blinick v. Dep't of Housing and Urban Development, EEOC Appeal No. 07A20079 (Feb. 3, 2004) (20% reduction of attorney's fees when the complainant was only successful on part of her complaint).
However, as noted by Complainant on appeal, A1's rate has increased based on the "Laffey Matrix." The Commission has held that consistent with prevailing case law, an adjustment for a delay caused by the length of time of the litigation justifies granting a request for current rather than historic hourly rates. See Mohar, EEOC Appeal No. 0720100019 (citing Mareno v. Dep't of Veterans Affairs, EEOC Appeal No. 01943104 (Feb. 14, 1996) (the Commission reaffirmed its position that the proper customary hourly rate is the reasonable hourly rate in effect at the time of the award and not at the time the services are provided). As such, we will award A1 his current hourly rate based on the current "Laffey Matrix." Therefore, based on the 2010-2011 "Laffey Matrix," we find A1's hourly rate to be $475. We also find that A1's staff, which included law clerks/paralegals and attorneys, should be awarded an hourly rate of $130 and $230, respectively, based on the current "Laffey Matrix." This makes Complainant's total requested fee $68,732. Therefore, reducing $68,732 by 15%, or $10,309.80, we find that the proper award for A1's attorney fees is $58,422.20.
Costs
With respect to the claim for reimbursement of legal costs, we will not disturb the Agency's finding here. In this regard, we find that the record is devoid of receipts, bills, or other documentary evidence in support of such costs. See Canady v. Dep't of the Army, EEOC Request No. 05890226 (Dec. 27, 1989); Alston v. Dep't of Health and Human Serv., EEOC Appeal No. 01A54981 (Feb. 3, 2006); Coard v. Dep't of Justice, EEOC Appeal No. 01A30222 (Feb. 27, 2004). Therefore, we will not increase the Agency's award of $1,420.54 with respect to costs.
CONCLUSION
After a careful review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to MODIFY the Agency's final decision addressing the amount of attorney's fees to be awarded. We conclude that Complainant is entitled to attorney's fees in the amount of $58,422.20 and costs in the amount of $1,420.54, for a total award of $ 59,842.74.
ORDER
The Agency is ordered to take the following remedial action:
Within forty-five (45) days of the date on which this decision becomes final, to the extent not done so previously, the Agency shall tender to Complainant payment in the amount of $58,422.20 in attorney's fees and $1,420.54, in costs, for a total of $ 59,842.74.
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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 (K0610)
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 (M0610)
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), at 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 (T0610)
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 (Z0610)
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
June 12, 2012
Date
1 In Jimenez v. Department of Health and Human Services, EEOC Appeal No. 0120061020 (Apr. 17, 2008), with respect to attorney's fees, we found that it was not appropriate for the AJ to depart from the lodestar formula. We also found that Complainant was not given the opportunity to submit a fee petition prior to the AJ's decision awarding attorney's fees; therefore, we remanded the matter to give Complainant the opportunity to submit a petition for attorney's fees.
2 The June 11, 2008 fee petition sought $65,540 for A1 and staff; and $36,194.25 for the Complainant's second attorney (A2), and $2,974.67 in costs.
3 The "Laffey Matrix" is a schedule of hourly rates for attorneys, paralegals, law clerks based on experience level. It is prepared by the United States Attorney's Office for the District of Columbia for use in cases where a statute permits the prevailing party to recover "reasonable" attorney's fees, e.g., 42 U.S.C. � 2000e-5(k) (Title VII of the 1964 Civil Rights Act). The matrix is based on the hourly rates allowed by the District Court in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), aff'd in part, rev'd in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), cert. denied, 472 U.S. 1021 (1985).
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0120101794
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083765