0120110663
06-11-2012
Maria A. Fuentes, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Maria A. Fuentes,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120110663
Agency No. 4G-752-0033-08
DECISION
On November 10, 2010, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 7, 2010, which took action on the order in Fuentes v. United States Postal Service, (Southwest Area), EEOC Appeal No. 0120091994 (June 30, 2010) for the Agency to process an expected application for attorney fees arising from a finding therein that it violated Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
ISSUES PRESENTED
The issue presented is whether the Agency properly calculated attorney fees.
BACKGROUND
In Fuentes v. United States Postal Service, (Southwest Area), EEOC Appeal No. 0120091994 (June 30, 2010) the Commission found that the Agency discriminated against Complainant based on reprisal for prior EEO activity in violation of Title VII when for a second time she was reassigned out of her position of Manager of Injury Compensation in September 2007 at the North Texas Processing and Distribution Center in Coppell, Texas.
Among other things the Commission ordered that Complainant's attorney have the opportunity to submit a verified statement of attorney fees to the Agency and that it then process the fee claim in accordance with 29 C.F.R. � 1614.501. The facility where Complainant worked was near Dallas, Texas, she lived near Dallas, and her attorney practices in Texas.
In her fee petition Complainant's attorney requested fees for 100.80 hours at an hourly rate of $450, a total of $45,360. In support of her hourly rate she submitted affidavits by herself and three other attorneys, all licensed to practice in Texas. All reviewed the invoices for legal services in this case. Complainant's attorney wrote that she was a Board Certified Attorney in Labor and Employment Law by the Texas Board of Legal Specialization, and her hourly rate of $450 was based on her personal inquiry regarding the rates of Board Certified attorneys and after looking up the rates posted by the State Bar of Texas. Attorney 1 wrote that the hourly rate charged by Complainant's attorney who is board certified in employment law was well within the usual and customary hourly rate for "this locale." Attorney 2 wrote that in his opinion the hourly rate charged by Complainant's attorney, who was board certified in employment law, was well within the usual and customary hourly rate. Attorney 3 wrote that based on his knowledge of the customary and reasonable hourly rate and Complainant Attorney's skills, experience, and practice, her hourly rate of $450 was reasonable for this case. With the fee petition Complainant's attorney submitted an Attorney Fees & Costs Contract. While it had an hourly rate of $450 it indicated that this amount would be sought from the Government, and Complainant in any event would be liable for costs.
In its final decision the Agency determined that the reasonable hourly rate for Complainant's attorney was $250. It found that the attorney did not provide any factual information showing that attorneys doing similar work actually received $450 per hour in the local area. In arriving at the hourly rate of $250 the Agency relied on the 2009 Fact Sheet by the Bar of Texas for hourly rates in the Dallas Metro area. The Agency also cut the requested hours from 100.80 to 54. It subtracted 30.2 hours for the time spent Complainant's attorney spent on a motion for extension on the time limit to submit an appeal brief to the Commission and the connected brief because the Commission denied consideration of the brief for being untimely filed. The Agency also generally found that there were excessive hours for conference calls. It paid a total of $13,550 in attorney fees.
On appeal Complainant's attorney discusses her fee petition and argues it supports the fees she requested. She asks for an additional 10 hours of attorney fees spent working on this appeal brief.
ANALYSIS AND FINDINGS
The reasonable hourly rate for attorney fees is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at 11-6 (citing Cooley v. Department of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998)). For private attorneys, the best evidence of a reasonable hourly rate is the hourly rate customarily charged by the attorney or law firm for fee paying clients. Cooley, EEOC Request No. 05960748.
Here, Complainant's attorney does not state her customary billing rate to fee paying clients in employment discrimination cases, which would be the best evidence of reasonable hourly rate. The Attorney Fees & Costs Contract does not provide evidence of this since it indicates the fees will be sought from the Government, and does not indicate that Complainant must pay the fees. While Complainant's attorney's affidavit and those of Attorneys 1, 2 and 3 provide some evidence on reasonable hourly rate, none indicate the hourly fees for fee paying clients. Much better evidence of the reasonable hourly rate was 2009 Fact Sheet by the Bar of Texas for hourly rates in the Dallas Metro. It indicates that the median hourly rate for attorneys in the Dallas-Forth Worth-Arlington metropolitan area with 16 to 20 years experience was $295. The experience of Complainant's attorney is in this range.1 Taking this evidence, along with the above affidavits into consideration, we find that the reasonable hourly rate is $325.
The number of hours requested by an attorney for fees should not include excessive, redundant, or otherwise unnecessary. EEO MD-110 at 11-5 (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). We find that 100.80 hours was reasonable. In finding that the appeal brief was untimely the Commission in EEOC Appeal No. 0120091994 ruled that it was 17 days late, and it was not aware of an extension request. Complainant's attorney, however, submits evidence that she timely requested an extension with the EEOC Office of Federal Operations extension team.2 For reasons unknown this request was not acted upon and did not find its way to the file. It was a reasonable legal strategy to draft and submit the brief. Our review of the Complainant's attorney billing time entry report does not reveal excessive hours.
We also award Complainant's attorney 10 hours for the hours she worked on this attorney fee appeal.
CONCLUSION
Based on a thorough review of the record, the Agency's decision on attorney fees is MODIFIED. Complainant's attorney is entitled to an hourly rate of $325 for 110.80 hours, a total of $36,010.
ORDER
The Agency is ordered to pay Complainant's attorney $36,010 in attorney fees, less the $13,550 in fees it already paid her if she accepted this amount. The Agency shall complete this action within 30 calendar days after this decision becomes final.
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 (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 (S0610)
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 (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 11, 2012
__________________
Date
1 This takes into account the historical billing rule, which provides that in order to compensate an attorney for years long delay in receiving payment for services rendered, fees should be calculated using the attorney's current billable rate. Hironaka v. United States Postal Service, EEOC Appeal No. 01A14926 (March 29, 2002).
2 The request was timely under 29 C.F.R. � 1614.604(d). Such initial requests, for the most part, are routinely granted.
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0120110663
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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