01976454
03-13-2000
Nancy H. Holmes, Complainant, Bill Richardson, Secretary, Department of Energy, Agency.
Nancy H. Holmes v. Department of Energy
01976454
March 13, 2000
Nancy H. Holmes, )
Complainant, )
) Appeal No. 01976454
) Agency No. 95(71) HQ/NN
)
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
)
DECISION
INTRODUCTION
On August 27, 1997, Nancy H. Holmes (complainant), by and through
her attorney initiated an appeal to the Equal Employment Opportunity
Commission (the Commission) concerning the Department of Energy's (agency)
final decision, dated July 21, 1997, regarding an award of attorney's
fees.<1> The Commission hereby accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly denied a portion of
complainant's claim for attorney's fees.
BACKGROUND
Complainant was employed by the agency as a Supervisory Program Analyst,
GS-15, in the Office of Nonproliferation and National Security. She
filed a formal complaint on February 23, 1995, alleging discrimination
on the bases of sex (female) and age (53) when she was not selected
for the position of Director, Office of Resource Management, ES-301.
The agency accepted the complaint for investigation and processing.
At the conclusion of the investigation, the agency issued a copy of its
investigative report and notified complainant of her right to request
an administrative hearing. Complainant timely requested a hearing
before a Commission Administrative Judge, but prior to the hearing,
on May 29,1997, the complainant and the agency signed a settlement
agreement (SA), resolving the issues in her case. Among other things,
the SA specified that the agency would pay "reasonable attorney's fees
and costs."
Pursuant to that provision in the SA, the complainant's attorney submitted
a request to the agency for attorney's fees and costs in the amount of
$17,277.94, of which $15,679.25 were fees and $1,598.69 were costs.<2>
On July 21, 1997, the agency issued its final decision on counsel's
request, awarding a total of $13,157.19. The agency awarded $11,558.50
in attorney's fees and the full $1,598.69 in costs. Without disputing
counsel's hourly rates, the agency based its award on a reduction in
what it termed the "excessive, repetitive and redundant," and therefore
"unreasonable," fees. It is from this decision that complainant now
appeals.
Additionally, on appeal complainant's attorney requested that he be
awarded the additional fees and costs that were incurred between May 29,
1997, and the date of the appeal for the work done to ensure compliance
with a particular provision in the SA, and for the costs of preparing
the motions for this appeal. The additional fees and costs for ensuring
compliance with the SA and for the motions were $1,207.65. Complainant's
attorney also submitted a request to the agency for a second supplement
of attorney's fees and costs for $793.43, expenses incurred in further
ensuring compliance with the SA through the date of September 29, 1997.
Therefore, complainant's attorney requested on appeal that he be awarded
the $4,120.75 originally denied by the agency and the $1,207.65, as well
as an additional $793.43, for a total request of $6,121.83.
The agency's response to complainant's appeal requested that the
Commission affirm its original award of $13,157.19 based on its assertion
that the fees and costs not paid by the agency were not reasonable and
therefore properly denied. It noted in a response to complainant's
attorney that the request for costs associated with this appeal of
the agency's attorney's fee award was premature until and unless the
complainant prevails. It also informed complainant's attorney that his
requests for additional fees and costs incurred in ensuring compliance
with the SA "will be considered in the normal course of business, and
subjected to the normal analytical process as other such requests."
ANALYSIS AND FINDINGS
By federal regulation, an agency shall award attorney's fees and costs
for the successful processing of an EEO complaint in the administrative
process. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.501(e)). A prevailing party
for purposes of entitlement to attorney's fees is one who succeeds on
any significant issue in litigation which achieves some of the benefit
the party sought in bringing the suit. Nadeau v. Helgemoe, 581 F.2d
275, 278-79 (1st Cir. 1978). The fee awarded is normally determined
by multiplying the number of hours reasonably expended by a reasonable
hourly rate. Hensley v. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. �
1614.501(e). The attorney requesting the fee award has the burden of
proving, by specific evidence, his entitlement to the requested award.
Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980).<3>
In the instant appeal, the agency did not dispute counsel's claimed
hourly rates of anywhere between $240.00 to $105.00 for himself and
his firm associates. Only the number of hours reasonably expended is
at issue. The agency reduced the fee award in many instances because the
charges were deemed to be duplicative. An examination of these charges
reveals that the agency primarily disallowed charges where the senior
attorney charged for the time spent conferring with the associate in
the firm who was doing the bulk of the work on the case, as well as
for the associate's time spent conferring with the senior attorney.
For instance, on October 18, 1996, the senior attorney charged $22.50
for .10 hours and the associate charged $10.50 for .10 hours for the
purpose of conferring with each other on the status of complainant's case.
The agency disallowed the charge for the associate but granted the fee
for the senior attorney. In some instances, however, the agency did
not award any fee for the time the two attorneys spent conferring with
each other. The agency also found duplicative the time the associate
spent familiarizing himself with the case file when he replaced another
associate, and disallowed the time both attorneys spent in prehearing
conferences and settlements conferences, awarding only the senior
attorney's fees. We find that it was reasonable for the agency to
disallow the charges of one attorney where both attorneys were charging
for the time spent conferring with each other, and for when both attorneys
attended the prehearing and settlement conferences, and only to award
the senior attorney's time. Hodge v. Department of Transportation,
EEOC Request No. 05920057 (April 23, 1992). We also find that in some
instances the agency improperly disallowed the charges that should have
been awarded for the attorneys conferring with each other, and for the
time the associate took to review the case file when first working on
the case. For instance, on July 30, 1996, the senior attorney charged
$90.00 for .40 hours and the associate did not charge any amount for the
time the two spent conferring about the case, but the agency did not
award any sum. A review of the submitted charges reveals that of the
charges the agency deemed to be duplicative, it incorrectly disallowed
$732.00 in fees. Accordingly, the agency is ordered to award an additional
$732.00 for fees that it deemed duplicative.
In other instances the agency reduced the amount of time charged, labeling
it as "excessive." This description for the reason the charge was reduced
was found in the handwritten notes made by the agency on the billing
records submitted by the attorney to support his fee and cost request.
For example, on August 29, 1996, the associate billed 3.2 hours of his
time at $336.00, which the agency then reduced to 1 hour at $105, labeling
it as "excess." The agency did not provide a more detailed analysis
regarding why it found specific charges to be excessive. We find after
reviewing the billing records of the attorneys that some charges that
the agency disallowed were reasonable amounts of time to spend on the
task specified and should have been paid. For instance, on August 28,
1996, the associate charged $504.00 for 4.8 hours of work spent preparing
for the depositions of three witnesses. The agency reduced the award to
$294.00 for 2.8 hours of work. We find that the full amount should have
been awarded because the time spent on the task was a reasonable amount,
especially given the fact that the less expensive attorney was doing the
bulk of the work instead of the costlier senior attorney. Therefore,
the agency is ordered to award an additional $557.50 for fees that we
find not to be excessive in nature.
In still other instances, the agency reduced the amount awarded and failed
to make any notation on the billing records as to why it was reducing
the amount it planned to award for certain charges. We have reviewed
these charges as well and find that the charges were improperly reduced,
and therefore we award an additional $64.50.
With regard to complainant's requests for the fees and costs incurred in
ensuring compliance with the SA after May 29, 1997, and for preparing the
motions for this appeal, we find, after a review of the fee petitions,
that the requests for $1,207.65 and $793.43, were reasonable and the
full amounts should be awarded to complainant's attorney. Therefore,
if it has not already done so, the agency shall issue a check awarding
the amount of $2,001.08. If the agency has issued a final decision on
these fee requests during the pendency of this appeal, and has awarded
some portion of the amount, it shall calculate the difference and issue
a check in that amount, so that the total awarded equals $2,001.08.
Accordingly, the decision of the agency is MODIFIED and the agency is
ordered to pay the additional sum of $1,354.00 for attorney's fees and
costs, and the amount of $2,001.08 for fees associated with ensuring
compliance with the SA, for a total amount of $3,355.08.
ORDER
The agency shall issue a check to appellant's counsel in the amount of
$3,355.08, (unless modified in accordance with the above for any sums
paid during the pendency of this appeal) within fifteen (15) calendar
days of the date this decision becomes final. The agency shall submit
a report of compliance, as provided below. The record shall include
documentation to verify that the 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 (M1199)
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). 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 (R1199)
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:
March 13, 2000
______________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These
regulations apply to all federal sector EEO complaints pending at any
stage in the administrative process. Consequently, the Commission will
apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at WWW.EEOC.GOV.
2 The attorney's fee petition requested this amount in fees, however,
the final decision of the agency on the fee petition award mistakenly
stated that the attorney was requesting $15,558.50.
3 We interpret the SA as awarding attorney's fees based solely on
complainant's Title VII claim of sex discrimination because attorney's
fees are not available as a remedy under the ADEA at the administrative
stage. See Falks v. Department of Treasury, EEOC Request No. 05960250
(September 5, 1996).