Linda F. Riviera,
Complainant,

v.

Christopher J. Scolese,
Acting Administrator,
National Aeronautics and Space Administration,
Agency.

Appeal No. 0120111416

Agency No. NCN-08-JSC-A031

DECISION

On January 13, 2011, Complainant filed an appeal from the Agency’s
December 12, 2010, final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq.  The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).

BACKGROUND

Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of sex (female) when she was subjected to
a hostile work environment from March 2006 through November 2007.
The matter was investigated.  Following the investigation, on January 8,
2010, the Agency issued a final decision finding that the Agency was
liable for the harassment Complainant faced in the workplace.

The Agency’s decision finding discrimination ordered a supplemental
investigation regarding Complainant’s evidence of damages, relief
sought, and attorney’s fees and costs.  On February 26, 2010,
Complainant submitted her evidence in support of her claim of damages.
The Agency had the matter investigated.  However, the matter was
reassigned to different investigators.  On August 31, 2010, Complainant
submitted additional information and the attorney’s fees and costs.
Despite calls from Complainant’s attorney and assertions by the Agency
that the matter was “on the fast track,” the Agency did not issue
its final decision regarding damages and attorney’s fees and costs
until December 12, 2010.

In its decision, the Agency awarded Complainant $295.00 and 14 hours of
sick leave in past pecuniary damages; $3,025.00 and 148 hours of sick
leave in future pecuniary damages; and $15,000.00 in compensatory damages.
The Agency also awarded Complainant $ 14,594.29 in attorney’s fees
and costs.  The Agency found that Complainant’s attorney (Attorney)
provided sufficient evidence in support of her hourly rate of $275.00
for her services as well as $190 for the services of her associate
(Associate).  The Agency also found that the Attorney’s bill for
59.45 hours was reasonable even though the hours were not divided by
the Attorney or the Associate and not itemized by the type of activity
done by the counsel.  The Agency agreed that the attorney’s fees and
costs were reasonable and determined that Complainant’s attorney was
entitled to the full amount she requested.

The Attorney appealed the Agency’s final decision solely on the issue
of attorney’s fees and costs.  The Attorney indicated that Complainant
incurred additional fees and costs during the Agency’s investigation
regarding the issue of damages.  The Attorney noted that the changes
in investigator and the Agency’s failure to timely issue a decision
on damages resulted in the additional fees and costs.  The Attorney
attempted to raise the additional fees and costs with the Agency, however,
the Agency failed to consider the additional fees and costs.  In support
of the appeal, the Attorney provided additional hours and costs accrued
working on Complainant’s damages claim from August 1, 2010 though
December 20, 2010.  The Attorney requested fees and costs in the amount
of $ 6,315.98.  The Attorney indicated that she worked 20.3 hours at
a rate of $275 per hour.  The Associate worked 2.1 hours at a rate of
$195 and the Paralegal worked 3.3 hours at a rate of $75.  The Attorney
also noted that Complainant was asked to overnight documents by one of
the investigators pertaining to her damages award which cost $45.10.
The Attorney also mailed letters on Complainant’s behalf to the Agency
inquiring about the Agency’s delays in processing Complainant’s claim
for damages.  The Attorney indicated that she incurred an additional
$31.38 in postage fees.  Therefore, the Attorney asks that the Commission
award her the additional fees and costs incurred pursuing Complainant’s
claim for damages.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a).  See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).

By federal regulation, the Agency is required to award attorney’s fees
for the successful processing of an EEO complaint in accordance with
existing case law and regulatory standards. EEOC Regulation 29 C.F.R. §
1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar
amount is reached by calculating the number of hours reasonably expended
by the attorney on the complaint multiplied by a reasonable hourly rate.
Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424
(1983).

There is a strong presumption that the number of hours reasonably expended
multiplied by a reasonable hourly rate, the lodestar, represents
a reasonable fee, but this amount may be reduced or increased in
consideration of the degree of success, quality of representation, and
long delay caused by the Agency. 29 C.F.R. § 1614.501(e)(2)(ii)(B). The
circumstances under which the lodestar may be adjusted are extremely
limited, and are set forth in Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-7. (November 9,
1999). A fee award may be reduced: in cases of limited success; where the
quality of representation was poor; the attorney’s conduct resulted
in undue delay or obstruction of the process; or where settlement
likely could have been reached much earlier, but for the attorney’s
conduct. Id. The party seeking to adjust the lodestar, either up or down,
has the burden of justifying the deviation. Id. at p. 11-8.

As an initial matter, we note that Complainant prevailed when she was
awarded pecuniary and non-pecuniary damages with respect to her claim
of harassment.  Upon review, we find that, based on the Attorney’s
submissions that Complainant accrued additional attorney’s fees and
costs pursuing her claim for damages.  The Agency has already found
that the Attorney’s hourly rate of $275 was reasonable.  As for the
Associate, the Agency indicated that a reasonable rate for an associate
was from $228-235 per hour.  The Associate billed at a rate of $195 per
hour for her activities conducted after August 1, 2010.  This was a slight
increase from the rate of $190 billed for services provided before August
1, 2010.  We note that although the Associate’s billable rate increased
to $195, it was still within the range of reasonable as determined by the
Agency.   A review of the entries provided by the Attorney indicates that
her representation continued with Complainant from August 2010 through
December 2010.  The reason for the Attorney’s continued involvement with
Complainant’s case was due to the delays by the Agency in processing
Complainant’s claim for damages.  The record showed that the Agency
changed investigators during the investigation regarding damages.
Despite getting supporting documentation from Complainant in February
2010, the Agency did not issue a final decision until December 2010.
We find that the Attorney’s request for additional fees based on 20.3
hours worked by the Attorney, 2.1 hours worked by the Associate, and 3.3
hours worked by the Paralegal, was reasonable.  We note that the Attorney
also requested $ 76.48 in costs for postage and overnight delivery.
There is no evidence to support the request for such fees.  Accordingly,
we cannot provide for those costs.  Based on our review of the record, the
agency is ordered to pay $ 6,239.50 for the additional fees incurred for
the legal work performed by the Attorney, the Associate and the Paralegal.

CONCLUSION

Therefore, after a careful review of the record, including Complainant’s
contentions on appeal, we AFFIRM the Agency’s award of compensatory
damages to Complainant.  We MODIFY the Agency’s award of compensatory
damages in granting Complainant’s request for additional attorney’s
fees and costs and REMAND this case to the Agency to take remedial action
in accordance with the Order below.


ORDER

The Agency shall issue a check to the Attorney in the amount of $
6,239.50.  The Agency shall submit a report of compliance, as provided
in the statement entitled “Implementation of the Commission’s
Decision.”  The report shall include documentary evidence 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/she 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

July 19, 2011
__________________
Date


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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013



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