U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trina C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 0120150407 Hearing No. 440-2011-0204X Agency No. 6U000000611 DECISION On October 9, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's September 9, 2014, 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. For the following reasons, the Commission MODIFIES the Agency's final decision. ISSUES PRESENTED Whether the Agency's calculation of attorney fees was correct. BACKGROUND Al the time of events giving rise to this complaint, Complainant worked as a Business Solutions Specialist at the Agency's facility in Carol Stream, Illinois. On April 26, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity when: 1. on February 2, 2011, she was issued a Letter of Warning for Unacceptable Performance-Failure to Follow Instructions; and 2. on March 4, 2011. she was subjected lo retaliatory harassment when her supervisor remarked that Complainant had "thrown [her] co-worker under the bus" and on unspecified dates, staled that Complainant was "fueling allegations of fraud in the Schaumburg Installation," that "customer connect was being held hostage due to [Complainant's] personal issues" and that Complainant was in an inappropriate relationship with [named individual]. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing but the AJ denied the hearing request on the grounds that Complainant failed to comply with the Commission's orders and failure to prosecute her case. The AJ remanded the complaint lo the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) finding no discrimination. Complainant appealed the Agency's decision and the Commission found Complainant had proven she was subjected to retaliation when she was harassed as described in Issue 2. The Commission ordered a supplemental investigation into Complainant's entitlement to compensatory damages and also ordered the Agency to pay reasonable attorney fees. See Complainant v. United States Postal Service, EEOC Appeal No. 0120133008 (January 27, 2014).2 On April 24, 2014, Complainant's attorneys filed a Verified Statement and Request for Attorney's Fees and Costs. Therein, Complainant's attorney documented that she was entitled to fees in the amount of $23,579.85 based on an hourly rate of $300.00/hour for out of court services and $375.00/hour for in-court services. On September 9, 2014, the Agency issued a final decision rejecting Complainant's attorney's requested hourly rate based on her limited experience. Furthermore, the Agency noted that Complainant's attorney was not entitled to fees incurred prior to the filing of the complaint, or for fees incurred after she withdrew her representation of Complainant on March 9, 2012. Notably, the Agency found that Complainant's former attorney did not conduct any discovery, take any depositions or respond to the Agency's Motion for Summary Judgment which resulted in the dismissal of the hearing request as a sanction. Therefore, the Agency determined that further reductions should be made in light of Complainant's attorney's limited success, nonreimbursable clerical work and unproductive, vague or frivolous work. After an across the board reduction the Agency calculated that Complainant's attorneys were owed $1,890.00 in fees and no proven costs. This appeal followed. CONTENTIONS ON APPEAL Complainant's attorney files no contentions on appeal and the Agency relied on the findings and arguments contained in its final decision. ANALYSIS AND FINDINGS By federal regulation, the Agency is required to award attorney's fees and costs 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 EEO MD-110, Ch. 11 § VI.F. 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. The reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum, 465 U.S. at 895. We note that the Commission and courts generally use the Laffey Matrix to determine the hourly rate for Washington, D.C. area attorneys. The Laffey matrix, which has its origins in the case of Laffey v. Northwest Airlines Inc., 572 F. Supp. 354 (D.D.C. 1983), reversed in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), is a chart compiled yearly by the United States Attorney's Office in the District of Columbia. It provides a schedule of hourly rates prevailing in the Washington, D.C., area in each year, going back to 1981, for attorneys at various levels of experience. Piper v. U.S. Dep't of Justice, 339 F. Supp. 2d 13, 24 n. 8 (D.D.C. 2004). Id. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id. After a review of the record, we disagree with the Agency's calculation of Complainant's attorney's reasonable hourly rate. A review of the Laffey Matrix reveals that the claimed $300/per hour rate was appropriate for Complainant's attorney who had been practicing for 1-3 years. However, we find that modifications are required to the claimed reasonable hours expended in this case based on the limited success achieved and limited representation provided. We have eliminated all claimed fees for the period of time prior to the filing of the formal complaint pursuant to 29 C.F.R. § 1614.501(e)(iv). Furthermore, no fees will be awarded for any work performed after March 9, 2012, since the record reveals Complainant's attorney withdrew as counsel. Moreover, in the absence of any documentary evidence that Complainant's attorney participated or conducted discovery in this matter, we will not award any fees related to discovery claimed in the fee petition. With regard to the Agency's claim that fees should be reduced for the unsuccessful Motion to Stay, we agree. In computing attorney's fees, "[t]ime spent on clearly meritless arguments or motions, and time spent on unnecessarily uncooperative or contentious conduct may be deducted." MD-110, at 11-4, citing Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir. 1997); Clanton v. Allied Chemical Corp., 416 F. Supp. 39 (E.D. Va. 1976). Furthermore, we agree with the Agency's determination that clerical work performed is not reimbursable as we have held that clerical work is generally viewed as part of the attorney's overhead. See Cole v. U.S. Postal Serv., EEOC Request No. 05910450 (August 5, 1991). Finally, we note that Complainant was successful on only one issue. 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. "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." EEO MD-110, at Ch. 11 § VI.F (citing Hensley, 461 U.S. at 440). Accordingly, because of the fractionable nature of the allegations and the limited success, we find a 50% across the board reduction in this case is appropriate. 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 direct the Agency to comply with the ORDER below. ORDER Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall pay Complainant's former attorney fees in the amount of $2,880.00. The Agency is directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting evidence that the corrective action has been implemented. The Agency shall send a copy of the report and all of its enclosures to Complainant. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 Agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 7-20-2017 __________________ 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 After a supplemental investigation, the Commission determined that Complainant was entitled to nonpecuniary compensatory damages in the amount of $546.41. See Complainant v. United States Postal Service, EEOC Appeal NO. 0120141973 (November 14, 2014). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2015-0407 2 0120150407