Complainant,

v. 

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120121159

Hearing No. 443-2010-00092X

Agency No. 200J05552009100904

DECISION

On December 30, 2011, Complainant filed an appeal from the Agency's November 30, 2011, final order concerning the award of attorney's fees and costs regarding 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.  The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).  

BACKGROUND

At the time of events giving rise to this complaint, Complainant alleged discrimination on the bases of race, age, religion, disability and/or reprisal for prior EEO activity when:

1) On August 8, 2008, she was charged with Absence without Official Leave (AWOL).
2) On August 8, 2008, she was terminated during her probationary period due to unacceptable conduct.
3) From July 7, 2008 through August 2008, she was subjected to a hostile work environment.  

The Agency initially dismissed the compliant.  Complainant appealed the dismissal to the Commission.  Upon review of the record, we reversed the Agency's dismissal action and remand the matter for further processing in accordance with 29 C.F.R. § 1614.108 et seq. Johnson v. Department of Veterans Affairs, EEOC Appeal No. 0120091946 (Sept. 18, 2009).  

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).  Complainant timely requested a hearing before the AJ.  The AJ held a hearing on October 26, 2010, and issued a decision on July 29, 2011.  The AJ concluded that Complainant establish that she was subjected to unlawful retaliation when she was terminated from her position during the probationary period.  

During this time, Complainant's representative passed away on May 10, 2011.  Following the AJ's decision, on August 19, 2011, Complainant received the Agency's Motion for Reconsideration submitted to the AJ.  Complainant was given 20 days to respond to the Agency's motion.  

On August 23, 2011, Complainant met with an attorney to discuss responding to the Agency's motion.  From August 23, 2011 to September 7, 2011, the Attorney reviewed the complaint record including the Agency's investigation file, the hearing documents, the hearing transcript and the AJ's decision.  The Attorney filed Complainant's response to the Agency's Motion for Reconsideration on September 7, 2011.  

On September 9, 2011, the Agency issued a final order adopting the AJ's finding that Complainant proved that the Agency subjected her to discrimination regarding the termination issue.  As remedy, among other things, the Agency determined that Complainant was entitled to a claim for attorney's fees and cost.  On September 26, 2011, the Agency issued a revised final order stating that Complainant's former representative was not an attorney.  Therefore, she was not entitled to fees and cost for her original representative, but only to those costs incurred following the retaining of the Attorney.  

The Attorney submitted a petition for fees and costs on October 14, 2011.  The Attorney indicated that from August 23, 2011 through October 10, 2011, 32 hours were expended at a rate of $235.00 per hour for a total of $ 7,520.00 in fees.  Further, the Attorney claimed $488.69 in costs.  The total amount requested by the Attorney was $8,008.69.

On November 30, 2011, the Agency issued its final decision regarding Complainant's entitlement to attorney's fees and costs.  The Agency determined that Complainant was the prevailing party.  The Agency found that the Attorney was not entitled to the 32 hours requested.  The Agency noted that the Attorney and Complainant failed to provide the Agency with a formal notice of representation.  However, based on Complainant's response to the Agency's motion dated September 7, 2011, the Agency determined that the filing constituted constructive notice of the Attorney's representation.  Therefore, the Agency excluded 14.5 of the 16.5 hours requested by the Attorney.  The Agency then excluded 0.75 hours for vagueness and 0.75 hours for an entry regarding Complainant's life insurance.  Therefore, the Agency reduced the hours expended from 32 hour to 16 hours.  The Agency determined that the Attorney's hourly rate of $235 is commensurate with the usual and customary rate for the area.  The Agency approved $3,760 in Attorney fees.  Finally, the Agency turned to Complainant's claim for costs.  The Agency noted that Complainant provide support for entries but noted that there appeared to be a duplicate entry in the amount of $17.50.  As such, the Agency allowed for all costs excluding $17.50 for a total of $471.19.

This appeal followed.  On appeal, the Attorney indicated that Complainant made contact in order to respond to the Agency's Motion for Reconsideration.  The Attorney spent that time reviewing all the filings, transcripts and files in order to respond to the Agency's Motion.  Therefore, the Attorney argued that the hours expended before notification of representation was reasonable.  As such, the 16 hours should not have been excluded by the Agency in its final decision.  The Agency requested that the Commission affirm its decision.

ANALYSIS AND FINDINGS

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). 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. Id. at §1614.501 (e)(2)(ii)(B). A fee award may be reduced in cases of limited success and where the quality of representation was poor. Id.
 
EEOC Regulation 29 C.F.R. § 1614.501(e)(1)(iv) provides in relevant part that:

Attorney's fees shall be paid for services performed by an attorney after the filing of a written complaint, provided that the attorney provides reasonable notice of representation to the agency, administrative judge, or Commission, except that fees are allowable for a reasonable period of time prior to the notification of representation for any services performed in reaching a determination to represent the complainant. Agencies are not required to pay attorney's fees for services performed during the pre-complaint process, except that fees are allowable when the Commission affirms on appeal an administrative judge's decision finding discrimination after an agency takes final action by not implementing an administrative judge's decision.

In the case at hand, the Agency concedes that Complainant is the prevailing party and that the Attorney's hourly rate of $235.00 is reasonable.  The Attorney did not challenge the Agency's exclusion of $17.50 in costs.  As such, the Agency's award of $471.19 for costs is not at issue. The only question before the Commission is the Agency's exclusion of 16 hours.  

Regarding the hours expended, the Attorney asserted entitlement to fees for representing Complainant prior to entering an appearance.  In essence, the Attorney indicated that Complainant had until September 7, 2011, less than 20 days from the date Complainant first contacted him to respond to the Agency's Motion for Reconsideration.  The record indicates that the Attorney did, in fact, respond to the Agency's motion in a timely manner to the AJ.  The Attorney had to review the hearing transcript which was well over 300 pages, the report of investigation, and the Agency's motion prior to submission of Complainant's response.  The Attorney asserted that, from August 23, 2011 to September 7, 2011, the 14.5 hours excluded by the Agency were expended meeting with Complainant, getting the files from Complainant, reviewing the hearing transcript and investigation file, conducting research and drafting Complainant's reply. 

In general, two hours of time is considered reasonable for counsel to consider whether or not to represent a complainant. See Brown v. U.S. Dep't of Justice, EEOC Appeal No. 0120072877 (Feb. 25, 2009); Stance v. Dep't of Veterans Affairs, EEOC Appeal No. 0120080515 (June 24, 2010). In this case, the Agency allowed for 2 hours as reasonably performed in reaching a determination to represent Complainant, and did not object to that work.  

However, we find that the circumstances of this case are unique.  In cases such as Brown and Stance, supra, representation was considered prior to the filing of the EEO complaint.  Here, Complainant had been represented by another individual who passed away while her complaint was pending a decision by the AJ.  The record for the Attorney to review to consider representation consisted of hundreds of pages of hearing transcripts and the Agency's investigative file.  Furthermore, Complainant received the Agency's Motion for Reconsideration on August 19, 2011.  She was given 20 days to respond to the Agency's Motion.  Based on the time constraints created by the Agency's filing of the Motion and and the extensive volume of documents that needed to be reviewed by the Attorney, we find that the exclusion of 14.5 hours by the Agency for work conducted prior to September 7, 2011, was not appropriate.  

The Commission does exclude 1.5 hours expended on September 19 and 23, 2011, for work regarding Complainant's "life insurance policy."  Therefore, of the 32 hours requested by the Attorney, the Commission excludes 1.5 hours.  As such, the Agency shall compensate the Attorney for 30.5 hours expended at a rate of $235, for a total of $7,167.50 in fees. 

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision and REMAND the matter in accordance with the ORDER below.


ORDER (C0610)

The Agency is ordered to take the following remedial action:

I. The Agency shall pay Complainant $7,167.50 for services provided by the Attorney.
II. To the extent the Agency has not done so, it shall pay Complainant $471.19 for costs associated with the processing of this matter.

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.

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 (R0610)

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 (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

March 27, 2015
__________________
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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