GABRIEL IGHILE, COMPLAINANT,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, DEPARTMENT OF JUSTICE (FEDERAL BUREAU OF PRISONS), AGENCY.

Appeal No. 0720110010
Hearing No. 470-2008-00148X
Agency Nos. 
P-2007-0483, P-2008-0332

Following its November 4, 2010, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the agency requests that the Commission affirm its rejection of the amount of an award of attorney's fees by an EEOC Administrative Judge (AJ) following a finding of discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. Complainant responded by asking the Commission to uphold the AJ's fee award. For the following reasons, the Commission REVERSES the Agency's final order.

ISSUE PRESENTED

The issue presented is whether the AJ erred in determining the amount of attorney's fees awarded to Complainant.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Education Specialist at the Federal Correctional Complex in Terre Haute, Indiana. He had worked at the Terre Haute facility since 2005.

On July 31, 2007, Complainant filed an EEO complaint alleging that the Agency had discriminated against him on the bases of race (Black), sex (male), national origin (Nigerian), and reprisal. He alleged that he had received hard copies of e-mails containing verbal abuse, threats of physical assault, and prejudiced remarks about him. He also alleged that a co-worker had solicited false accusations about him from inmates and that, as a result of the co-worker's vendetta against him, the Agency had suspended him for one day on July 2, 2007, for accepting an item from an inmate's associate. Complainant attached an e-mail in which the co-worker made the accusation and other e-mails in which she and another employee used offensive, threatening language and mocked his actions during a prison disturbance. In addition, Complainant attached a document objecting to other statements and actions by the co-worker and accused the Agency of "institutional racism." Subsequently, on April 22, 2008, Complainant filed a second EEO complaint alleging that the Agency had discriminated against him on the bases of race, sex, national origin, and reprisal when the co-worker posted a negative news article about Nigerians on a staff bulletin board and other employees made derogatory comments about Complainant in reference to the article.

At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. With the agreement of the parties, the AJ consolidated the two complaints and held a hearing on the consolidated case on August 18-19, 2009. In a decision issued on September 21, 2010, the AJ found that the Agency had discriminated against Complainant on the bases of race and national origin by subjecting him to a hostile work environment. The AJ also found that the Agency had not subjected Complainant to a hostile work environment based on sex or reprisal and had not discriminated against Complainant when it issued the one-day suspension. The AJ ordered the Agency to pay Complainant $5,000 in non-pecuniary compensatory damages, $23,440 in attorney's fees, and $710 in costs.

The AJ determined the attorney's fees award through a lodestar calculation that multiplied the number of hours spent on the case by a reasonable hourly rate. He rejected the Agency's argument that the award should be reduced by 50 percent because Complainant had not prevailed on his allegation that the suspension was discriminatory. The AJ found that the Agency had not established that Complainant's unsuccessful suspension claim was so distinct from the successful hostile-environment claim as to justify a 50 percent reduction in fees. In that regard, the AJ noted that the evidence for the claims was similar and the facts necessary to develop the case were common to all aspects of the case.

Thereafter, the Agency issued a final order implementing the AJ's decision with the exception of the award of attorney's fees, and filed an appeal with the Commission pursuant to 29 C.F.R. § 1614.110(a).

CONTENTIONS ON APPEAL

On appeal, the Agency argues that the attorney's fees award should be reduced by 50 percent to account for Complainant's unsuccessful claim. The Agency asserts that the suspension and hostile-environment claims are fractionable because they involved different facts, dates, and legal theories. Complainant responds that the two claims are closely intertwined because they concern the same actors, took place in the same time period, and involve similar legal theories. According to Complainant, counsel litigated both claims as a whole because the facts, evidence, and witnesses for both claims overlapped.

ANALYSIS AND FINDINGS

Title VII authorizes the award of reasonable attorney's fees, including for an attorney's processing of an agency appeal regarding an AJ's award of fees. 29 C.F.R. § 1614.501(e); EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD 110). Ch. 11, § VI.A.3. To establish entitlement to attorney's fees, Complainant must first show that she is a prevailing party. See Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources, 532 U.S. 598 (2001). A prevailing party for this purpose is one who succeeds on any significant issue and achieves some of the benefit sought in bringing the action. See Davis v. Dep't of Transportation, EEOC Request No. 05970101 (Feb. 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). A finding of discrimination raises a presumption of entitlement to an award of attorney's fees. 29 C.F.R. § 1614.501(e)(i).

Attorney's fees shall be paid for services performed by an attorney after the filing of a written complaint. Id. An award of attorney's fees is determined by calculating the loadstar, i.e., by multiplying a reasonable hourly fee times a reasonable number of hours expended. Hensley, 461 U.S. at 433;29 C.F.R. § 16l4.501(e)(2)(ii)(B)."There is a strong presumption that this amount represents the reasonable fee." 29 C.F.R. § 1614.501 (e)(2)(ii)(B). A reasonable hourly fee is the prevailing market rate in the relevant community. Blum v. Stenson, 465 U.S. 886 (1984). A petition for fees and costs must take the form of a verified statement required by the Commission's regulations at 29 C.F.R. § 1614.501(e)(2)(i)

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).

After a careful review of the record and consideration of the above criteria, we are persuaded that the AJ's fee award is appropriate. Complainant's unsuccessful suspension claim was intertwined with his successful hostile-environment claim and arose from a common core of facts. Complainant raised the suspension allegation in an EEO complaint in which he accused the Agency of institutional racism and alleged that co-workers had used offensive and threatening language about him in e-mails. The co-worker whose accusation led to the suspension is one of the individuals who sent the offensive e-mails and whose conduct Complainant protested. She also is the individual who posted the negative news article that Complainant cited in his other EEO complaint.

In addition, the disparate-treatment theory underlying Complainant's suspension claim is related to the harassment theory underlying his hostile-environment claim. Both theories address intentional discrimination.

We agree with the AJ's conclusion that the unsuccessful claim was not so distinct from the successful claim to justify a reduction in attorney's fees. Accordingly, we find that Complainant is entitled to $23,440, the full amount of attorney's fees ordered by the AJ.

CONCLUSION

For the foregoing reasons, the Agency's final order so far as it fails to implement the Administrative Judge's decision is REVERSED and REMANDED for the Agency to take corrective action in accordance with this decision and the ORDER below.

ORDER

To the extent it has not already done so, the Agency is ordered to take the following remedial actions within thirty (30) calendar days of the date this decision becomes final:

 (1) the Agency shall cease and desist from all hostile conduct directed to Complainant based upon his race and national origin. Specifically, the Agency will take appropriate action to ensure that his co-workers cease and desist from any and all hostile conduct directed to Complainant or any other employees based upon their races or national origins;

(2) the Agency shall implement appropriate preventative measures to ensure that such unlawful activity will not recur by training all employees in the Education Department at the Federal Correction Complex in Terre Haute, Indiana, to ensure that they become aware and/or continue to be aware of their obligations, rights, and responsibilities under Title VII of the Civil Rights Act of 1964 including their obligations, rights, and responsibilities with regard to maintaining an environment free from discriminatory harassment and hostile conduct;

(3) the Agency shall amend any personnel records it maintains with regard to Complainant to expunge all references to this complaint and the reasons for its initiation.;

(4) the Agency shall post a notice to employees in accordance with 29 C.F.R § 1614.501(a)(1) after being signed by the Agency within thirty calendar days of the date of this decision, which shall remain posted for sixty consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, or covered by other materials;

(5) the Agency shall pay to Complainant $5,000.00 as non-pecuniary compensatory damages; and

(6) the Agency shall pay to Complainant $23,400.00 as attorney's fees and $710.00 as costs.

POSTING ORDER (G0610)

The Agency is ordered to post at its Terre Haute, Indiana Federal Correctional Complex copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.

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 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

April 13, 2012