Rita Cerny, Appellant,
v.
Togo D. West, Jr., Secretary, Department of the Army, Agency.

Request No. 05930899
Hearing No. 370-92-2213X
Appeal No. 01930575
Agency No. 91-05-0027

GRANTING OF REQUEST TO RECONSIDER

INTRODUCTION

On June 29, 1993, Rita Cerny (hereinafter referred to as appellant) initiated a timely request to the Equal Employment Opportunity Commission (EEOC or Commission) to reconsider the decision in Rita Cerny v. John W. Shannon, Acting Secretary, Department of the Army, EEOC Appeal No. 01930575 (June 4, 1993), received on June 7, 1993. EEOC Regulations provide that the Commissioners may, in their discretion, reconsider any previous decision, pursuant to 29 C.F.R. §1614.407(a). The Commissioners may also reconsider any previous decision when the party requesting reconsideration submits written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. §1614.407(c). For the reasons set forth herein, appellant's request is granted.

BACKGROUND

The record indicates that at the time this dispute over attorney's fees arose, appellant had entered into a settlement agreement with the agency in April 1992. Counsel for appellant then submitted a fee application for $2,280 which the agency denied in October 1992. Previously, appellant had worked for the agency as a Program Analyst, GS-09, and had filed a March 11, 1991 formal complaint against the agency, based on race, religion, and reprisal, alleging several acts of harassment, including when she received a 'fully successful' performance evaluation and was not given a performance award. Among the remedies requested, appellant sought a transfer.

As a part of the April 1992 settlement agreement, the agency agreed to laterally transfer appellant from the San Francisco District and to develop a suitable individual performance plan for appellant. The agency also agreed to take certain facts into account when next rating appellant and to sever the issue of attorney's fees. When the agency denied the attorney's fees application, an appeal followed. The previous decision denied attorney's fees, concluding that appellant was not a 'prevailing party' because her EEO claim was not the catalyst for the agency's offer of settlement. Moreover, the previous decision observed that even if appellant were a 'prevailing party,' her attorney had not supported the fee request with the appropriate documentation, and therefore, on that basis, the request was properly denied.

Appellant makes reference to 29 C.F.R. §1614.407(c)(1) and (c)(2) in her request for reconsideration. According to appellant, she has presented new, material evidence, not previously available at the time the previous decision was issued; and in addition, the previous decision erred when it denied her claim for attorney's fees. The agency has not submitted a statement in opposition to this request to reconsider.

ANALYSIS AND FINDINGS

In the case before us, we find that appellant has shown that the previous decision erroneously interpreted the law, regulation or material fact, or misapplied established policy in her case, pursuant to 29 C.F.R. §1614.407(c)(2). The previous decision denied the request for attorney's fees, because appellant was not considered a 'prevailing party' in this matter. According to the previous decision, the evidence suggested that the agency's primary motivation for reassigning appellant was to take care of a morale problems in the office and to remedy performance difficulties by giving appellant a 'fresh start.'

By regulation, a federal agency must award attorney's fees, in accordance with existing law, for the successful processing of an EEO complaint. 29 C.F.R. §1614.501(e). The fee award is ordinarily determined by multiplying a reasonable number of hours expended on the case by a reasonable hourly rate. See 29 C.F.R. §1614.501(e)(2)(ii)(B); Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). The attorney requesting the fee award has the burden of proving, by specific evidence, his or her entitlement to the requested fees and costs. See Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1983).

In general, entitlement to attorney's fees turns on whether the individual seeking attorney's fees is a 'prevailing party' under Title VII of the Civil Rights Act of 1964. An individual in a civil rights action may be considered a 'prevailing party' even if there is no formal adjudication of the complaint and no finding of discrimination. Hewitt v. Helms, 482 U.S. 755, 760-61 (1987); Maher v. Gagne, 448 U.S. 122, 129 (1980). A 'prevailing party' for purposes of obtaining attorney's fees is one who succeeds on any significant issue and achieves some of the benefit the party sought in bringing the action. Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978); Pfenninger v. Department of Commerce, EEOC Request No. 05900724 (August 1, 1990); Beeder v. Environmental Protection Agency, EEOC Request No. 05880736 (February 22, 1989).

The Commission, applying Miller v. Staats, 706 F.2d 336 (1st Cir. 1983), has enunciated a two-prong test for determining when a party to an EEO action is entitled to attorney's fees. See Baldwin v. Department of Health and Human Services, EEOC Request No. 05910016 (April 12, 1991); Jansen v. Department of the Navy, EEOC Request No. 05880641 (December 20, 1988); Brooker v. United States Postal Service, EEOC Appeal No. 01933566 (October 1, 1993). First, a complainant must have, on a significant issue, substantially received the benefit he or she sought. On this element, the court in Miller v. Staats stated that this inquiry should focus on the exact factual or legal condition sought to be changed, and a determination must be made as to whether the actual outcome, compared with this condition sought to be changed, confers 'an actual benefit or relief from a burden.'706 F.2d at 341 n.30. Second, a complainant must show that the EEO action was the catalyst motivating the agency to provide the relief requested.

More recently, the U.S. Supreme Court stated that an individual is entitled to attorney's fees when the outcome of an action materially alters the legal relationship between the parties by modifying the defendant's conduct in a manner that directly benefits the complainant. Farrar v. Hobby, 113 S. Ct. 566 (1992). Further, the Court observed that:

To qualify as a prevailing party, a civil rights plaintiff must obtain at least some of the relief on the merits of his claim.... Whatever relief the plaintiff secures must directly benefit him at the time of the [resolution of the claim]. Only under these circumstances can civil rights litigation effect the 'material alteration of the legal relationship of the parties' and thereby transform the plaintiff into a prevailing party.

Id. at 573 (quoting in part Texas State Teachers Assoc. v. Garland Indep. School District, 489 U.S. 782, 792-93 (1989)).

In a Title VII action, a complainant who resolves his or her claim through a settlement agreement may in fact be entitled to an award of attorney's fees as a 'prevailing party.' See Maher v. Gagne, 448 U.S. 122, 129 (1980); Lyte v. Sara Lee Corp., 950 F.2d 101, 103-04 (2d Cir. 1991); Eaglin v. United States Postal Service, EEOC Request No. 05910604 (August 22, 1991); Cagle v. Defense Logistics Agency, EEOC Request No. 05890959 (April 4, 1990). Where the relief obtained is of the same general type as the relief initially requested, a complainant may be considered a 'prevailing party' and obtain attorney's fees. Id.; see also Spriggs v. United States Postal Service, EEOC Request No. 05930939 (December 10, 1993).

The Commission concludes that appellant is a 'prevailing party,' having succeeded in obtaining the same type of relief or benefit she sought in bringing the action. Throughout these proceedings, appellant has alleged that her supervisor harassed her continually, two instances of which were made the basis of this complaint: the performance rating and lack of a monetary award. Appellant succeeded in receiving a lateral transfer out of the Programs Material Branch, San Francisco District and a new individual development plan which was to be used as the basis for the new rating period. All of these were requested during EEO counseling, in appellant's formal complaint, and as a part of the negotiations stages of the EEO process. In essence, appellant claimed that due to her supervisor's treatment of her, she could not be judged fairly in the future, with regard to, for example, performance evaluations and/or awards. Thus, the relief obtained was a significant part of the relief requested initially, and as specified in Farrar, appellant received 'at least some of the relief on the merits of [her] claim.'113 S. Ct. at 573.

We reject the agency's characterization of the transfer as only designed to serve the agency due to the 'morale problems' appellant's presence caused in the Branch. Even if the transfer did in fact have a positive effect upon the agency, that does not diminish the fact that a significant benefit was conveyed to appellant. We also find that it is unlikely the same result would have occurred absent the EEO claim filed by appellant. For these reasons, then, we conclude that appellant is entitled to an award of attorney's fees based on the events in this case.

As stated previously, we must calculate the fee award by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. §1614.501(e)(2)(ii)(B); Blum v. Stenson, 465 U.S. 886; Hensley, 461 U.S. 424. Reasonable hourly rates are set based upon the 'prevailing market rate in the relevant community. Blum v. Stenson, 465 U.S. at 895. Counsel requesting fee awards must use reasonable billing judgment, that is, they must recognize that hours not properly billed to a private client are also not appropriately requested from an agency following a successful EEO claim. See Copeland, 641 F.2d at 891.

Further, a reasonable fee award may be assessed in light of the following factors, interalia, 1) the time required (versus time expended) to complete the legal work; 2) the novelty or difficulty of the issues; 3) the requisite skill to properly handle the case; 4) the degree to which counsel is precluded from taking on other cases; 5) the customary fee by comparable attorneys in the community; 6) whether the fee is fixed or contingent; 7) time pressure involved; 8) the relief sought and results obtained; 9) the experience, reputation, and ability of the attorney; 10) the undesirability of the case; 11) the nature and length of the attorney-client relationship; and 12) awards in similar cases. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).

The lodestar amount, is not, however, the final determination as to a just award of reasonable attorney's fees. The U.S. Supreme Court has held that while there is a strong presumption that the lodestar represents an award of reasonable attorney's fees, see City of Burlington v. Dague, 112 S. Ct. 2638 (1992), other factors may be taken into consideration which may reduce the lodestar. See 29 C.F.R. §1614.501(e)(2)(ii)(B); Blum v. Stenson, 465 U.S. at 897; Hensley v. Eckerhart, 461 U.S. at 435;Gilbert v. City of Little Rock, 867 F.2d 1063, 1067-68 (8th Cir. 1989); Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539-40 (11th Cir. 1987). The level of overall success achieved, for example, where appropriate, may be used to reduce the lodestar amount. See 29 C.F.R. §1614.501(e)(2)(ii)(B); Gilbert, 867 F.2d at 1067-68; Grano v. Barry, 783 F.2d 1104, 1109 (D.C. Cir. 1986); Medina County v. United States, 683 F.2d 435, 441 (D.C. Cir. 1982).1

Taking into account the above considerations, we have reviewed the documents submitted by counsel for appellant and conclude that there is adequate documentation which allows us to address the attorney's fees request of $2,280.00 for 11.4 hours of work at $200.00 per hour. Counsel for appellant has submitted a declaration detailing her years of experience, fee arrangements, costs of doing business, and a statement that the hours billed were reasonable and not 'excessive' and that her hourly rate was fair based on the costs of doing business in the Oakland area, the contingent nature of the work, and her personal expertise in federal sector employment law and the specific issue in this case. In addition, a local attorney and professor at the University of San Francisco submitted a declaration in support of counsel's fee request.2 

Based on the foregoing, we will approve the request for attorney's fees here for 11.4 hours of work at $200.00 hour, reducing the total lodestar amount by one-half due to the factor of relief sought and results obtained, since appellant prevailed only in part on the issues raised and the relief sought in her complaint. More specifically, appellant sought as relief the following: a monetary award for her performance; an increased performance evaluation; and a transfer from the San Francisco District. Appellant was awarded the lateral transfer and was promised a new individual performance plan would be developed for her. Appellant did not obtain the monetary award or a higher rating on the past performance evaluation at issue. We consider the transfer, however, to be more than one-third of the relief sought, because of its importance to appellant. In addition, with a new set of performance standards and evaluations to be performed by a new supervisor, appellant received a future benefit related to performance evaluations and awards. Taking all the foregoing into account, and eschewing a mechanical or purely mathematical valuation assessment, we find a one-half reduction to be appropriate in this case.

The Commission therefore approves an award of attorney's fees in the amount of $1,140.00. We will thus grant appellant's request for reconsideration pursuant to 29 C.F.R. §1614.407(c)(2), and issue an Order for attorney's fees in the amount of $1,140.00.

CONCLUSION

Thus, after a review of the appellant's request to reconsider, the previous decision, and the entire record, the Commission finds that appellant's request meets the criteria of 29 C.F.R. §1614.407(c)(2), and it is the decision of the Commission to GRANT appellant's request. The decision by the agency denying attorney's fees is hereby REVERSED, as is the previous decision. The agency shall comply with the provisions of the Order, below. There is no further right of administrative appeal on a decision of the Commission on this Request to Reconsider.

ORDER

Appellant has been represented by an attorney, and based on the discussion herein, is entitled to an award of reasonable attorney's fees as a 'prevailing party' pursuant to 29 C.F.R. §1614.501(e). The agency shall provide an award of attorney's fees in the amount of $1,140.00, no later than thirty (30) calendar days after the date this decision becomes final.

The agency is further ordered to submit a report of compliance, as provided in the statement entitled 'Implementation of the Commission's Decision. The report shall include documentation that the attorney's fees award has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1092)

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 appellant.

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092)

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 etseq.; 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:

Frances M. Hart
Executive Officer
Executive Secretariat

October 19, 1994

1. Of course these factors should not be used twice, initially as a means of reducing the lodestar itself, through the hourly rate, for example, and for a second time to reduce the total lodestar amount.

2. We note that counsel's request for her $200.00 per hour billing rate would have been considerably stronger had she provided affidavits as to her own customary billing rate or the prevailing market rate in the relevant legal community. Counsel suggests that she did not have evidence of the former, but we see no reason why she did not provide affidavits or other evidence as to the prevailing market rate. Since we do not find $200.00 per hour to be unreasonable for the geographic area in which counsel practices and the agency has not produced anything to the contrary, we will not reduce the billing rate, but a complainant's attorney would be in much stronger standing by meeting his or her burden of proving reasonable attorney's fees by affirmatively producing this evidence.