0120110658
06-28-2012
Scott Taber, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Scott Taber,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120110658
Hearing No. 430-2009-00063X
Agency No. 1K-276-0021-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 8, 2010 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Custodian, PS-4, at the Agency's Raleigh Processing and Distribution Center in Raleigh, North Carolina. On March 30, 2008, Complainant filed a formal complaint alleging that:
1. the Agency discriminated against him on the basis of disability (carpal tunnel syndrome) when he was passed over for a detail to Custodian Group Leader; and
2. the Agency discriminated against him on the basis of retaliation (prior EEO activity) when on April 15, 2008, while attending an EEO hearing, he was not placed on official duty or afforded travel time and pay.
The Agency accepted the complaint and conducted an investigation. At the conclusion of the investigation, Complainant requested that the matter be assigned to an EEOC Administrative Judge (AJ) for a hearing. On January 5, 2010, the AJ held a hearing and found that Complainant had been discriminated against on the basis of disability when he was passed over for a detail as alleged in Claim 1.1
After receiving notice of the AJ's finding of discrimination, Complainant submitted a petition for an award of attorney's fees and costs requesting $85,397.50 in attorney's fees and $5,259.24 in costs. The AJ reduced the requested award by adjusting downward the hourly rates to be paid for the services of Complainant's attorneys because she believed that the prevailing rates in North Carolina were applicable, not the prevailing rates in Washington, DC. She further reduced the award by 15% "across the board" because she found the number of attorneys involved in the case to be excessive and because Complainant had not prevailed on his retaliation claim, having withdrawn it in advance of the hearing.
The Agency's final order fully implemented the AJ's decision. From that order Complainant brings the instant appeal. The only issue Complainant raises on appeal is whether the AJ abused her discretion in awarding less in attorney's fees than the fee petition sought.
ANALYSIS AND FINDINGS
To obtain an award of attorney's fees, Complainant must be considered a prevailing party. See Texas State Teachers Ass'n v. Garland I.S.D., 489 U.S. 782 (1989). A prevailing party for purposes of obtaining attorney's fees is one who succeeds on any significant issue, and achieves some of the benefit sought in bringing the action. Davis v. Dep't of Transp., EEOC Request No. 05970101 (Feb. 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)).
An award of attorney's fees is determined by calculating the lodestar, i.e., by multiplying a reasonable hourly fee times a reasonable number of hours expended. Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998) (citing Hensley v. Eckerbart, 461 U.S. 424 (1983)). In determining the number of hours expended 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." Id. However, 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. Id.
Despite the fact that this matter arose and was litigated in the Raleigh, North Carolina area, Complainant argues that the relevant geographic market for legal services in this matter is the Washington, DC metropolitan area where Complainant's attorney's law practice is located. The rates requested by Complainant are as follows:
Attorney (1-3 year experience) $230/hr
Attorney (4-7 year experience) $275/hr
Attorney (11-19 year experience) $420/hr
Paralegal/Law Clerk $230/hr
The AJ determined that the appropriate geographic market for legal services is the Raleigh, North Carolina area. The AJ held that Complainant's counsel would be reimbursed at following hourly rates:
Attorney (1-3 year experience) $150/hr
Attorney (4-7 year experience) $175/hr
Attorney (11-19 year experience) $300/hr
Paralegal/Law Clerk $135/hr
With a single exception, on appeal the Agency does not dispute the rates awarded by the AJ. The only difference the Agency has with the rates awarded is the rate for attorneys with 11-19 years' experience. Rather than $300/hr, the Agency argues that the appropriate rate is $275/hr.
We conclude that the appropriate geographical market for legal services is the Raleigh, North Carolina area. Complainant lives and works in North Carolina. The witnesses were located in North Carolina; the events giving rise to the Complainant's claim occurred in North Carolina; and the matter was litigated before an EEOC AJ in North Carolina. The only connection that matter has to the Washington, DC area is the location of Complainant's counsel's offices.
Complainant correctly points out that the Agency has the burden of proving that Complainant's decision to retain out-of-state counsel was unreasonable. See Southerland v. United States Postal Service, EEOC Appeal No. 01A05403 (October 16, 2002). We find that the Agency has borne that burden. The Agency has submitted a listing of attorneys in the Raleigh area which, according to the Agency, was compiled by the EEOC and distributed to potential discrimination complainants or charging parties in North Carolina. This listing demonstrates that attorneys specializing in employment discrimination are readily available in the Raleigh area. Complainant has produced no countervailing evidence on this issue. For that reason we find that the Agency has proven, by a preponderance of the evidence, that it was unreasonable for Complainant to retain counsel from outside North Carolina.
Complainant has submitted no evidence about prevailing rates for legal services in the Raleigh area. Under some circumstances, that might justify a complete denial of reimbursement for Complainant's counsel. However, in this case the Agency has not objected to the hourly rates determined by the AJ, with the single exception noted. Therefore, we will affirm the AJ's decision as to hourly rates except for the rate awarded for attorneys with a great deal of experience (11+ years experience). The Agency has adduced evidence that the rate for attorneys with that level of experience is $275/hr. The AJ's award will be modified to reflect that rate.
The AJ also reduced the award to Complainant's counsel by 15% because Complainant did not prevail on his retaliation claim and because of what the AJ regarded as duplicative efforts by various of Complainant's counsel in rendering legal services.
Attorney's fees may not be recovered for work on unsuccessful claims. Hensley, 461 U.S. at 434-35. Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See Nat'l Ass'n of Concerned Veterans v. Sec'y of Defense, 675 F.2d 1319, 1327 n.13 (D.C. Cir. 1982). Claims are fractionable or unrelated when they involve distinctly different claims for relief that are based on different facts and legal theories. Hensley, 461 U.S. at 434-35. In cases where a claim for relief involves "a common core of facts or will be based on related legal theories," however, a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Id. at 435. "The hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims." See EEO MD-110, Ch. 11, � 6.A.7 (citation omitted).
In this case, we find that the retaliation claim upon which Complainant did not prevail was fractionable from the nonselection claim upon which Complainant did prevail. It does not appear that the claims involved common elements such as common legal theories or a common core of operative facts. Under these circumstances the reduction in the lodestar amount was not an abuse of discretion. Similarly, the AJ determination that the number of hours expended by Complainant's counsel was excessive is within the broad discretion afforded AJ's, especially where the AJ presided over the hearing for which attorney's fees are sought. Accordingly, the lodestar amount will be reduced to reflect our determination that an across-the-board 15% reduction is appropriate.
The attorney's fees to be awarded are calculated as follows:
Attorney (1-3 years experience) $150/hr x 174.4 hrs = $26,160.00
Attorney (4-7 years experience) $175/hr x 0.5 hrs = 87.50
Attorney (11+ years experience) $275/hr x 82.6 hrs = 22,715.00
Paralegal/Law Clerk $135/hr x 56.6 hrs = 7,641.00
__________
$56,603.50
15%Reduction (8,490.53)
Total Fees $48,112.97
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to modify the attorney's fee award in accordance with the foregoing.
ORDER
To the extent it has not yet done so and within sixty (60) days of the date of this decision, the agency is directed to pay Complainant $48,112.97 in attorney's fees and $5,259.24 in costs.
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 me 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 28, 2012
__________________
Date
1 Prior to the hearing, on December 11, 2009, Complainant withdrew his retaliation claim.
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2
0120110658
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013