The AJ ordered the agency to provide complainant with the following
remedies:
1. Within 60 days of the date this decision becomes final, the
agency shall issue a check to complainant in the amount of $32,500.00
for non-pecuniary, compensatory damages.
2. Beginning one week from the date this decision becomes final,
complainant shall be provided the opportunity for two years (24 months)
of professional help, should she choose to seek it. The agency shall
be financially obligated to complainant for any out-of-pocket expenses
complainant may incur for any mood-altering medications that she may
be prescribed. The agency shall provide a contact person within the
appropriate department where complainant may arrange for submission of
her bills and for reimbursement. The agency shall take all necessary
steps, including, but not limited to a stipulated protective agreement,
to ensure that complainant’s medical information remains as private and
protected as is possible.
3. Within 14 days of the date this decision becomes final,
complainant shall be placed in the position of SIS Technician, GS-0303-08,
and shall be accorded any step increases that she otherwise would have
received but for the agency’s discriminatory actions. Complainant is
also to be provided with any training opportunities that ordinarily
would have been offered along with the position, regardless of whether
the selectee himself chose to attend such training.
4. Within 30 days of the date this decision becomes final, the agency
shall reimburse complainant with compensation for 225 hours of overtime.
Complainant shall be given the option of determining whether she wishes
to receive monetary reimbursement, compensatory time, or a combination
thereof, for the 225 hours of overtime.
5. The agency shall restore to complainant seven days (56 hours)
each of sick leave and annual leave.
6. Within sixty days of the date this decision becomes final,
the agency shall conduct eight hours of EEO training which focuses on
Title VII. All persons in supervisory or management positions at FCI Big
Spring above the GS-08 level will be required to take the EEO training.
The training shall not be self-administered. The individual responsible
for overseeing the training and/or the accreditation of employees for
such training shall provide a sworn statement within one week after
the date of completion of such training attesting to the fact that the
EEO training was provided and listing the names and positions of those
persons who attended. The information shall be given to the agency’s
representative, who will then forward it to the Administrative Judge.
The statement shall be provided to the undersigned Administrative Judge
no later than December 14, 2005, or the agency shall show cause why it
should not be sanctioned.
7. The agency shall post a minimum of four copies of a Notice at
public places in FCI Big Spring, including the building where complainant
works and places where notices are ordinarily posted. The Notice shall
be maintained by the agency for twelve consecutive months in conspicuous
places, including places where notices to employees and applicants for
employment are customarily posted.
The agency subsequently issued a final order on November 1, 2005,
which implemented the AJ’s finding of discrimination, but rejected those
portions of AJ’s remedies with respect to compensatory damages, overtime
reimbursement, and training. The agency appealed the AJ’s decision
to the Commission, requesting that compensatory damages be reduced to
$15,000; that the award of future pecuniary damages and overtime be
eliminated; and that the AJ’s order for training be modified.
Complainant, who prior to this time had been represented by
a non-attorney, upon notice that the agency had filed an appeal,
retained counsel and filed her own appeal in which she requested
that the AJ’s award of compensatory damages be increased to $70,000;
but requested that the Commission affirm the remaining portions of the
AJ’s order regarding overtime, training, and future pecuniary damages.
Complainant also claimed that the agency failed to post the notice
described in the AJ’s order.
By decision dated October 17, 20061, the Commission modified the AJ’s
order. The Commission eliminated the award for future pecuniary damages.
The Commission remanded the matter to the agency to take the following
remedial action with respect to compensatory damages, overtime, and
training:
1. Within 30 days of the date this decision becomes final, the
agency shall pay complainant the amount of $32,500.00 for non-pecuniary,
compensatory damages.
. . . .
3. Within 30 days of the date this decision becomes final, the agency
shall reimburse complainant with compensation for 225 hours of overtime.
Complainant shall be given the option of determining whether she wishes
to receive monetary reimbursement, compensatory time, or a combination
thereof, for the 225 hours of overtime.
4. Within 30 days of the date this decision becomes final, the
agency shall restore to complainant seven days (56 hours) of sick leave
and seven days (56 hours) of annual leave.
5. Within 180 days of the date this decision becomes final, the
agency shall provide 8 hours of EEO training focusing on Title VII to
the agency officials responsible for the non-selection at issue.
The Commission further ordered the agency to pay complainant’s attorney’s
fees in accordance with 29 C.F.R. § 1614.501. The record shows that
on November 15, 2006, complainant’s counsel submitted a fee petition,
together with supporting documentation for attorney’s fees in the amount
of $19,062.50 and expenses of $368.75 (for a total of $19,431.25).2 On
February 22, 2007, the agency issued a final decision, in which the agency
determined that a reduction in the amount of attorney’s fees requested by
complainant was appropriate and that an award of $6,136.50 represented
a reasonable award of attorney’s fees together with $368.75 in costs
for a total award of $6,505.25 to be paid to complainant’s attorney.
The agency reasoned that complainant’s attorney had calculated his
fees using an inappropriate hourly rate. Specifically, complainant’s
attorney used hourly rates applicable to attorneys practicing in the
District of Columbia metropolitan area where his practice is located,
rather than the legal community of west Texas, where the case arose.
Further, the agency considered that complainant was only partially
successful in her appeal, and accordingly, the agency reduced the fee
award by fifty percent to reflect the degree of success she obtained.
In the instant appeal, complainant argues that the agency’s calculations
are improper for a number of reasons. Specifically, complainant was
unable to locate qualified counsel in the local legal community where
the case arose. Complainant argues that she located competent out of
town counsel and is entitled to attorney’s fees based on the community
where that counsel’s practice is located. Further, complainant argues
that no across-the-board reduction in attorney’s fees is appropriate.
ANALYSIS AND FINDINGS
In its February 22, 2007 final decision, the agency found that the hours
expended by complainant’s attorneys were reasonable.3 Accordingly, we
find that no dispute regarding the amount of hours billed and confine
our decision to the hourly rate on which the attorney’s fees are based.
The Commission finds that complainant is entitled to reimbursement for
the services rendered by her attorneys, as well as their paralegals.
See Coard v. Department of Justice, EEOC Appeal No. 01A30222 (Feb. 27,
2004); Layman v. United States Postal Service, EEOC Appeal No. 01995568
(Apr. 4, 2002), req. for reconsid. Denied, EEOC Request No. 05A20810
(Sept. 10, 2002).
