U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adam F.,1 Complainant, v. Edward Drusina, Commissioner, International Boundary and Water Commission, Agency. Appeal No. 0120142479 Agency No. EEO1004 DECISION On June 11, 2014, Complainant filed an appeal from the Agency's May 14, 2014 final decision concerning his award of attorney's fees and costs regarding his 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 During the period at issue, Complainant worked as a Laborer at the Agency's Field Office in Mercedes, Texas. On July 1, 2010, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him in reprisal for prior protected activity when: 1. his supervisor (hereinafter referred to as "Supervisor 1") told other employees of Complainant having filed an EEO complaint; 2. he was removed from the structure certification project and assigned jackhammering duties; and 3. he was moved up on the schedule to perform janitorial duties. On September 1, 2010, Complainant filed a second formal complaint. There, Complainant claimed that the Agency discriminated against him on the basis of race (Caucasian), age (47), and in reprisal for prior protected activity when: 4. Complainant was directed to inspect and repair unsafe structures and not required to use safety equipment; 5. Complainant was not allowed to train under the real property manager for an anticipated vacancy; 6. Complainant was not allowed to take additional safety training; 7. Complainant was not selected to take training for purchasing agent; 8. Complainant applied for six vacancy announcements but was not rated high enough to be referred; 9. Complainant was denied leave during the Tropical Storm Alex Flood control plan while other employees were allowed leave; 10. Complainant was denied equipment to perform his duties and his work was criticized; 11. Complainant was allegedly called "Boy" by his supervisor; and 12. The project manager refused to assign complainant to a different supervisor. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on March 11, 2011, pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to establish that the Agency subjected him to discrimination as alleged. Complainant appealed to EEOC. In our decision in EEOC Appeal No. 0120112384 (March 19, 2013), request for reconsideration denied, EEOC Request No. 0520130669 (Feb. 11, 2014), we found that, with respect to claim (1), the comments made by Supervisor 1 constituted a per se violation of Title VII, because such comments are likely to have a chilling effect and deter employees from full exercise of their EEO rights. We held that an Agency has a continuing duty to promote the full realization of equal employment opportunity in its policies and practices in every aspect of Agency personnel matters. We then turned to claims (2) - (12) and found that Complainant failed to show he was subjected to discrimination as alleged. The decision ordered the Agency to take remedial action for its unlawful action in claim (1), including providing Complainant with attorney's fees and costs. Complainant was represented by two attorneys during the appeal process for EEOC Appeal No. 0120112384, namely Attorney 1 and Attorney 2. Attorney 2 was the attorney of record when the Commission issued the decision and denied the Agency's request for reconsideration. On April 3, 2014, Attorney 2 provided the Agency with the petition for fees and costs in conjunction with the Agency's investigation regarding Complainant's entitlement to compensatory damages. On May 12, 2014, the Agency issued its decision on fees and costs. On May 14, 2014, the Agency amended its decision. The Agency denied fees to Attorney 1 noting that Complainant only provided a copy of the retainer and failed to provide evidence that Attorney 1 provided any legal services. As for Attorney 2, the Agency provided for Complainant's retainer in the amount of $3,000. The Agency then totaled Attorney 2's claim for fees from December 15, 2012 to April 19, 2013. The Agency determined that Complainant only prevailed on one of the 12 claims raised. As such, the Agency limited the fees awarded to Attorney 2 by 1/12th. Further, the Agency approved costs in the amount of $117.51 for the expenses related to mailing documents. As such, the Agency awarded a total of 3,243.75 in fees and $117.51 in costs to Complainant for Attorney 2's legal services. This appeal followed. On appeal, Attorney 2 argued that the Agency failed to properly provide for the legal fees and costs Complainant incurred during the processing of his EEO complaint. He noted that Complainant requested that the Commission approve of legal fees incurred for the work done by Attorney 1. Further, Complainant claimed that the fees for Attorney 2 should not have been reduced to 1/2th of the claim. Complainant also asked that the Commission award him additional money for costs he incurred prior to the representation by Attorney 1 and for Complainant's personal travel when trying to obtain representation. 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. (Aug. 5, 2015) (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"). Attorney's fees and costs shall be awarded in accordance with 29 C.F.R. § 1614.501(e). In federal EEO law, there is a strong presumption that a complainant who prevails in whole or in part on a claim of discrimination is entitled to an award of attorney's fees and costs. More specifically, complainants who prevail on claims alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Rehabilitation Act of 1973, as amended, are presumptively entitled to an award of attorney's fees and costs, unless special circumstances render such an award unjust. 29 C.F.R. § 1614.501(e)(1). Fee awards are typically calculated 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)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-13. (Aug. 5, 2015). The number of hours should not include excessive, redundant, or otherwise unnecessary hours. Hensley, 461 U.S. at 434; Bernard v. Dep't. of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). The attorney requesting an award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Service, EEOC Request No. 05A20843 (Feb. 18, 2003). An application for attorney's fees must include a verified petition accompanied by an affidavit executed by the attorney of record itemizing each expense comprising the attorney's charges for legal services, together with bills, receipts, or other appropriate documentation. 29 C.F.R. § 1614.501(e)(2)(ii)(B); MD-110 at 11-17. While the Attorney is not required to record in great detail the manner in which each minute of time was expended, 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. See Spencer v. Dep't. of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). Attorney 1 We note that Complainant signed and paid a retainer to Attorney 1 on December 14, 2011. Attorney 1 filed his notice with the Agency and the Commission that he was representing Complainant on March 9, 2012. In his petition for fees and costs, Complainant indicated that he paid a $ 2,500 retainer and $2,634.85 in additional legal fees to Attorney 1. However, Complainant submitted no itemized statement of the charges from Attorney 1 that identifies the number of hours he expended and the hourly rate he charged as required by regulation. In fact, there is no evidence that Attorney 1 ever performed any legal services on Complainant's behalf. While in his July 3, 2014 brief submitted on appeal, Complainant references Exhibit 1 as an itemization of Attorney 1's legal work, an examination of Exhibit 1 shows that it, in fact, lists Complainant's flights, travel lodging, food, parking, mailing, meetings with the Mediator, and visits pertaining to crown replacement. We note that these events occurred from June 2010 to November 2011, before Complainant was represented by Attorney 1. Further, Complainant indicated that in 2012, after he was represented by Attorney 1, he paid for a psychological evaluation and for travel to the evaluation. There is no indication how this was related to legal work performed by Attorney 1. Therefore, although Complainant has sought fees for work done by Attorney 1, he has not provided the evidence to support his claim. Therefore, we agree with the Agency's decision to deny fees for Attorney 1. Attorney 2 As for Attorney 2, Complainant indicated that he signed an agreement with Attorney 2 on December 3, 2012, and paid a $3,000 retainer. Attorney 2 filed a notice of appearance with the Commission and the Agency that same month. The Agency agreed to pay the retainer fee.2 On appeal, Attorney 2 provided a list of "bills" in the following amounts: December 15, 2012 - Bill ($325) March 11, 2013 - Bill ($1,025) April 1, 2013 - Bill ($550) April 19, 2013 - Bill ($975) June 21, 2013 - Bill ($75) July 18, 2013 - Bill ($150) August 29, 2013 - Bill ($900) September 22, 2013 - Bill ($525) October 30, 2013 - Bill ($790.92) March 12, 2014 - Bill ($300) April 7, 2014 - Bill ($2,830.52) The Agency agreed to pay the bills for work done by Attorney 2 from December 15, 2012 to April 19, 2013. The Agency did not challenge the requested amount or Attorney 2's billable rate of $250 per hour. The Agency then reduced this amount to 1/12th based on the fact that Complainant only prevailed on one out of twelve claims raised. The Agency noted that the claim upon which Complainant prevailed is severable from the other claims raised by him in his complaint. The record indicated that Complainant prevailed on a single claim of per se retaliation. Significantly, we find that this claim was separate and apart from the other claims raised by Complainant in his complaint. As such, the legal work only this claim and the others was far less intertwined than in most cases. Therefore, we find that a reduction of the rate to 1/12th based on the relative level of success of Attorney 2 is appropriate. See Blinick v. Dep't. of Housing and Urban Develop., EEOC Appeal No. 07A20079 (Feb. 3, 2004) (20% reduction of attorney's fees appropriate when complainant only successful on part of her complaint). Therefore, we find that the Agency's award of the retainer of $ 3,000 plus 1/12th of $ 2,925 or $ 243.75 is appropriate for work done by Attorney 2 from December 15, 2012 to April 19, 2013. The Agency was silent regarding Attorney 2's bills from June 21, 2013 to April 7, 2014. We note that the Commission issued its decisions on EEOC Appeal No. 0120112384 and EEOC Request No. 0520130669 on March 19, 2013, and on February 11, 2014, respectively. As noted above, the attorney needs to provide a record itemizing each expense comprising the attorney's charges for legal services, together with bills, receipts, or other appropriate documentation. 29 C.F.R. § 1614.501(e)(2)(ii)(B); MD-110 at 11-17. However, we find that Attorney 2 only provided a list of "bills" without providing any itemization of the legal expenses that resulted in these bills. As such, we cannot find that Complainant has substantiated a claim for additional fees for Attorney 2. Therefore, we cannot provide Complainant any additional fees for Attorney 2 than what the Agency provided for in its final decision. Costs Reasonable costs can include court reporter fees, transcripts, printing, witnesses, photocopying, mileage, postage, telephone calls, or any other reasonable out-of-pocket expense incurred by the representative in the normal course of providing representational services. 29 C.F.R. § 1614.501(e)(2)(ii)(C); MD-110 at 11-12 and 11-13. Here, Complainant is requesting additional payment for costs he personally incurred prior to his representation by an attorney. Reasonable costs incurred by a prevailing pro se complainant in the course of litigating his own EEO claim are compensable. Feine v. U.S. Postal Serv., EEOC Petition No. 04920009 (Sept. 3, 1992). It is Complainant's burden to prove not only that he incurred such costs, but that such costs were reasonable. Clay v. Dep't. of the Army, EEOC Petition No. 04950006 (Dec. 14, 1995); Davis v. Dep't. of the Treasury, EEOC Request No. 05901213 (March 1, 1991); Canady v. Dep't. of the Army, EEOC Request No. 05890226 (Dec. 27, 1989). Complainant requested costs for a crown which he indicated was caused by the stress of processing the instant matter. We find that the costs incurred for the crown are not related to the legal processing of his EEO complaint and should have been submitted in his request for compensatory damages. Complainant also included expenses for an "evaluation" along with meals and transportation. Complainant has not indicated why he went for an evaluation or how it was related to the EEO complaint. As such, Complainant is not entitled to such a claim of costs of the crown replacement, the evaluation, or travel expenses related to these items. Complainant indicated that he incurred expenses when he flew from California to Texas to attend mediation scheduled by the Agency on June 25, 2010. Complainant indicated that mediation did not occur because the Agency cancelled the mediation after Complainant had already traveled. Complainant indicated that he incurred the following costs: Airline Tickets: $1130.60 Food: $134.82 Dinner: $151.91 Hotel: $754.96 Car Rental: $330.28 Gas: $32.18 Airport Parking: $78.98 Upon review of the record, we find that Complainant incurred these expenses before he filed his formal complaint. Payment of fees and costs prior to the filing of a formal complaint are very limited, usually only for a brief period required by an attorney to decide whether or not to represent a complainant. 29 C.F.R. § 1614.501(e)((1)(iv). As such, we agree that Complainant is not entitled to reimbursement for these expenses incurred prior to filing his formal complaint. Complainant also requested reimbursement of expenses from May 2010 to November 2012 in $ 147.80 in costs. A review of Complainant's submission and the Agency's final decision indicates that Complainant requested reimbursement for the following postage and the Agency agreed to some of these expenses: Postage Date Expense USPS 5/1/10 $11.20 USPS 12/21/10 $5.54 (paid by the Agency) USPS 1/26/11 $19.32 (paid by the Agency) USPS 1/28/11 $9.52 USPS 2/25/11 $9.52 USPS 3/10/11 $25.97 (paid by the Agency) USPS 3/11/11 $6.83 (paid by the Agency) USPS 11/16/11 $59.90 (paid by the Agency) Complainant stated that the postage from May 1, 2010, was informing the Agency of the alleged discrimination. The postage paid on January 28, 2011 and February 25, 2011, was for providing his EEO complaints to one of the commissioners with the Agency. Upon review we find that Complainant has substantiated his claim for the additional $ 30.24 in postage for the three dates. As such, we modify the Agency's final decision and provide him with the additional costs. As such, we find that Complainant is entitled to $247.75 in costs. 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. We remand the matter for further processing in accordance with the ORDER below. ORDER (C0610) To the extent the Agency has not do so already, we ORDER the Agency to pay Complainant $ 3,243.75 in fees for Attorney 2 and $ 247.75 in costs. 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 (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations July 8, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 It appears that while the $3,000 initial retainer deposit was intended to pay for litigation costs and attorney's fees, upon receipt of monthly statements, Complainant was obligated to pay the monthly amount accrued, "so as to always maintain a deposit of $3,000.00" with Attorney 2. See Litigation Contract, para. 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142479 2 0120142479