01971418
03-24-2000
Luigi F. Abbate, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Luigi F. Abbate v. Department of the Navy
01971418
March 24, 2000
Luigi F. Abbate, )
Complainant, )
) Appeal No. 01971418
v. ) Agency No. DON-94-65113-002
) Hearing No. 210-95-6075X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) concerning his application for attorney's fees and costs
pursuant to a finding by the agency of discrimination in violation of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The FAD regarding attorney's fees was issued on November 4, 1996, and
received by complainant on November 13, 1996. The appeal was received
by the Commission on December 5, 1996. Accordingly, the Commission
accepts this appeal in accordance with 64 Fed. Reg. 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue before the Commission is whether the agency properly determined
that most of the attorney's fees and expenses claimed by complainant's
representative were unreasonable and excessive.
BACKGROUND
Complainant appeals the agency's award of attorney's fees and costs
of $14,386.20 arising from a complaint of disability discrimination in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. In 1992, complainant, a civilian employee at the Navy Public
Works Center, Great Lakes, Illinois ("Activity"), suffered serious
injury to his left great toe when a jackhammer penetrated his boot.
Complainant returned to light duty in August, 1993 and transferred to the
Environmental Department in January, 1994. At that time, complainant
endured a month-long period of "physical pressure, ... threats,
emotional pain, and humiliation by [complainant's] supervisor which the
agency found caused complainant "moderately severe" physiological and
psychological pain and suffering. The agency affirmed the AJ's finding
of discrimination in its FAD of September 12, 1996, and awarded the
complainant $150,000.00 in compensatory damages.
In December, 1995 and October, 1996, complainant's attorney (A1)
submitted his claim for attorney's fees to the agency. On November 4,
1996, the agency issued its FAD and determined that complainant was due
$14,386.20 for attorney's fees and costs. It is this decision which
the complainant now appeals.
ANALYSIS AND FINDINGS
Timeliness of Statement on Appeal
The agency argues that complainant's statement on appeal was not timely
filed and, accordingly, should not be considered by the Commission.
The record reflects that the appeal was received by the Commission
on December 5, 1996. On January 7, 1997, the Commission received
complainant's brief with an illegible postmark. In the absence of a
legible postmark, the brief shall be deemed timely if "it is received by
mail within five days of the expiration of the applicable filing period."
See 64 Fed. Reg. 37,659, 37,661 (1999) (to be codified at 29 C.F.R. �
1614.604(b).) Accordingly, complainant's brief is deemed timely filed
on January 2, 1997.
Attorney's fees
An agency shall award attorney's fees for the successful processing of
an EEO complaint in accordance with existing case law and regulatory
standards. 29 C.F.R. � 1614.501(e)(1)(i). The burden of establishing
entitlement to attorney's fees, including documentation demonstrating
hours expended and appropriate fees charged, is upon the complainant.
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 64 Fed. Reg. 37,659, 37,660 (1999) (to be codified
at 29 C.F.R. � 1614.501(e)(2)(ii)(B)); Blum v. Stenson, 465 U.S. 886
(1984); Hensley v. Eckerhart, 461 U.S. 424 (1983).
Hourly Rate
In general, reasonable hourly rates are measured by the "prevailing market
rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895
(1984). We find that A1 provided sufficient documentation to support
his claim for the hourly rate of $200.00. The record reflects that in
1994, A1's hourly rates were $200.00 and in 1995, they were $225.00.
In addition, he presented evidence of his 20 years of litigation with
the United States Army, various federal agencies and in private practice.
A1 also submitted affidavits from two attorneys who specialize in EEO law.
One attorney affirmed, in May, 1996, that her hourly rate of $250.00
was standard in the local community.
While we find that A1 does not specialize in EEO matters, the record
reflects that he has worked on, at least two prior federal EEO cases
and has extensive litigation experience. Accordingly, we find that,
in 1998, $200.00 per hour is sufficiently reduced, from the $250.00
rate charged by EEO specialists, to reasonably reflect the customary
rate for an attorney with A1's experience in the Chicago community.
See Pennsylvania v. Delaware Valley Citizen's Council, 483 U.S. 711,
716 (1987) (holding that in setting fees for prevailing counsel, courts
have regularly recognized the delay factor, either by basing the award on
current rates or by adjusting the fee based on historical rates to reflect
its present value); See also Missouri v. Jenkins, 491 U.S. 274, 282-83
(1989). Accordingly, we find the hourly rate of $200.00 appropriate in
this matter.
Hours Reasonably Expended
In determining the amount of hours reasonably expended, the burden is
upon complainant's counsel to give a detailed accounting of the hours
spent and the tasks involved. While 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," 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 v. Department of Veteran Affairs, EEOC Appeal No. 01966861
(July 17, 1998), quoting Hensley v. Eckerhart, 461 U.S. 424, 437, n. 12
(1983).
A1 sought an attorney's fee award for 288.7 hours billed and an additional
44 hours for the preparation of the appellate brief. In its decision,
the agency awarded approximately 115 hours.
After careful review of A1's Statement of Attorney's Fees, the Commission
finds, similar to the agency's determination, that the hours claimed
by A1 are generally unsupported, vague and in some instances appear
excessive and/or duplicative. While we decline, as did the agency, to
engage in a line by line analysis of the requests, we make the following
general observations concerning the hours billed by A1 on this matter.
For example, while we recognize that administrative hearings, like trials,
usually entail long days, with working meals, we nevertheless find 17-hour
days excessive. In addition, we find 35 hours billed for complainant's
closing argument highly excessive, especially in light of the fact that
the final product consisted of four pages of text. In addition, we
find that the statement of attorney's fees is insufficiently detailed.
For example, under the title "Witness Interview, Research & Hearing
Preparation," A1 billed 34 hours over April 9, 10, and 11, 1995,
without any indication of what work was performed. Under the heading
"Witness Interview, Research and Drafting," A1 charged 38 hours under the
description "January 11, 1995 to February 10, 1995 Statement of Disputed
Facts, Witness list and Expected Exhibits." We find it difficult to
ascertain the reasonableness of work performed under such a general
description. Lastly, with respect to fees claimed for work performed on
the appellate brief, the record reflects no documentation whatsoever to
support the additional 44 hours claimed, including a verified statement
as required by 29 C.F.R. � 1614.501(e)(2)(i).
Notwithstanding these observations, however, the agency's allocation
of specific amounts of billable hours for various actions which it
deemed reasonable is also inappropriate in that it failed to adequately
compensate complainant's attorney for much of the work he performed.
When a fee reduction is in order based on excessive hours, it is not
necessary for the Commission to "perform a detailed analysis to determine
precisely the number of hours or types of work for which no compensation
is allowed; rather, it is appropriate to reduce the hours claimed by
an across-the-board reduction." Finch v. United States Postal Service,
EEOC Request No. 05880051 (July 15, 1988). Our review of the record in
this case indicates that such an across the board reduction of A1's hours
by 40% is reasonable in this case. This will result in a fee award for
complainant of $39,780.00 (198.9 hours at $200.00 per hour).
Costs
With regard to the administrative costs cited by A1, EEOC Regulation
29 C.F.R. � 1614.501(e) provides that awardable costs include fees of
the reporter for a transcript, fees and disbursements for printing and
witnesses, and fees for copies necessarily obtained for use in the case.
29 C.F.R. �1614.501(e)(2)(ii)(C). In addition, the Commission has held
that awardable costs are not limited to those expressly mentioned in
the regulations, but may include other expenses incurred in connection
with the complaint, as long as those expenses are reasonable.
Bush v. Department of the Army, Petition No. 04960020 (January 24, 1997).
A1 sought reimbursement of $3,270.00 in costs. The agency reduced
this amount by disallowing the following fees associated with his
physicians/consultants (Physician 1, 2, 3, and 4): (1) Physician 1's
examination fee; (2) Physician 2's preparation time and hearing testimony;
(3) Physician 3's consultation charge; (4) Physician 4's consultation
charge; and (5) commercial research charge.
With respect to Physician 1's examination fee, and Physician's 3 and
4's consultation charge, the agency contends that there is no evidence
to connect these charges to the EEO process. The agency argued that
these fees were incurred in connection to a related Department of Labor
complaint. After a thorough review of the supporting documentation, we
find that A1 has failed to meet his burden of proving that such expenses
were incurred in connection with complainant's EEO complaint.
With respect to Physician 2's preparation time and hearing testimony,
the agency does not dispute that these charges were incurred in connection
with complainant's EEO complaint. Instead, the agency contends that two
hours for testimony preparation was unreasonable. In addition, the agency
contends that Physician 2, as complainant's treating physician, was called
to testify solely as a fact witness and accordingly, complainant should
only be reimbursed $40.00 for Physician 2's testimony. We disagree with
the agency in this regard. While it is clear that Physician 2 testified
on factual issues, he also rendered medical opinions and recounted
his diagnosis and prognosis of complainant. Accordingly, we find that
complainant is entitled to reimbursement of the costs incurred in calling
Physician 2 to testify at the hearing in this matter. In addition,
we find that 2 hours to prepare for the hearing is not unreasonable.
Lastly, we find $360.33 incurred for Westlaw computerized legal research
reasonable in this matter. See Overton v. Department of the Army,
EEOC Appeal No. 01902827 (September 21, 1990) (finding Lexis computer
research a reasonable out-of-pocket expense and compensable). However,
we find the charge of $60.00 for the Jury Verdict Reporter to be properly
considered as part of A1's overhead expenses and not compensable.
Accordingly, we find complainant is properly awarded costs which total
$2,635.33 ($3,270.33 minus $635.00).
Based upon careful review of the evidence, including facts not
specifically stated herein, the Commission MODIFIES the FAD for payment
of attorney's fees and costs to complainant consistent with this decision
and order below.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall award complainant a total of $42,415.33 ($39,780.00
plus $2,635.33) in attorney's fees and costs. To the degree it has not
already done so, the agency shall issue a check to complainant and/or
his representative within thirty (30) days from the date this decision
becomes final.
2. 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 that the
corrective 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 (M0300)
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); 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 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:
March 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations