Interesting to this case was the attorney fees awarded in the amount of $59,000.00. For an EEOC Claim to award this much in attorney fees, it must be a solid claim with substantial evidence.
Paul Terban,
Complainant,
v.
Dr. Steven Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120090329
Agency No. 9617HQED
DECISION
On September 26, 2008, complainant filed an appeal concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
ISSUE PRESENTED
On appeal, complainant challenges the attorney’s fees awarded by the
agency.
BACKGROUND
The instant appeal stems from the agency’s denial of attorney’s fees
for work performed by one of complainant’s attorneys in connection
with a compensatory damage award granted to complainant. Complainant
filed an EEO complaint with the agency on October 24, 1995, alleging
discrimination on the basis of his race (Caucasian) in connection with
workplace incidents that occurred in February, July, September and
October of 1995. An EEOC Administrative Judge (AJ) issued a decision on
May 24, 2004, finding that complainant had been discriminated against on
the basis of race and ordered, in part, the following relief: an award
of $130,000.00 in non-pecuniary, compensatory damages; and an award of
$6,329.25 in pecuniary damages. The agency subsequently issued a final
order rejecting the AJ’s decision in its entirety and filed an appeal
with the Commission.
While the appeal was pending before the Commission, the parties reached
a partial settlement agreement on September 30, 2004. On October 12,
2004, pursuant to the agreement, the parties filed a “joint motion”
requesting, in part:
That the appeal proceed on the sole issue of compensatory damages,
as raised in United States Department of Energy’s Brief in Support
of its Appeal Pursuant to 29 C.F.R. §1614.403 filed on July 29, 2004,
and opposed in Paul Terban’s Opposition to the Agency’s Appeal of the
Administrative Judge’s Findings of Discrimination and Award of Relief
filed on August 27, 2004.
Accordingly, the Commission limited its decision to a review of the
AJ’s award of compensatory damages. In EEOC Appeal No. 0720040017
(April 3, 2008), the Commission upheld the AJ’s award of $130,000.00 in
non-pecuniary, compensatory damages and $6,329.25 in pecuniary damages.
The Commission further ordered the agency to pay complainant’s attorney’s
fees in connection with the appeal in accordance with 29 C.F.R. §1614.501.
On May 2, 2008, Attorney 2 submitted a fee petition to the agency
requesting payment in the amount of $17,529.00 in attorney’s fees
and $186.59 in costs for himself and his firm for the period covering
July 1, 2004, through May 2, 2008. Attached to the fee petition was
an itemized list of Attorney 1’s work; an itemized fee petition for
the work done by Attorney 2; affidavits from Attorney 2 and the other
attorneys in Attorney 2’s firm who worked on the case; and the Laffey
matrix from the United States Department of Justice, U.S. Attorney’s
Office for the District of Columbia, used to calculate reasonable hourly
rates of attorneys and paralegals. Also, the fee petition contained an
affidavit from complainant confirming that he hired Attorney 1 in late
1997 to represent him in his initial EEO complaint and noting that he
retained Attorney 2 in 2004, through an agreement he had with Attorney 1.
Complainant stated that he did not have a copy of the representation
agreement with Attorney 1, but he noted that under the agreement, if
he received an award of attorney’s fees or the case settled, Attorney 1
agreed to accept fees awarded by the court or negotiated with the agency
as payment in full. The fee petition also included a declaration from
attorney RDL not involved in the case attesting to the reasonableness
of Attorney 1’s hourly rate in this case of $240.00, with subsequent
increases up to $400.00. The fee petition noted that Attorney 1’s signed
affidavit would be arriving under separate cover.
On May 5, 2008, Attorney 1 sent a supplementary affidavit related to
the work he performed on the appeal. Attorney 1 stated that he could
not locate the retainer agreement entered into with complainant or a
contemporaneous invoice outlining services he performed in 2004. Attorney
1 states that he believes the terms of the agreement were consistent with
the standard agreement in place at the time, that he would be compensated
at full market rate for all attorney’s fees and costs awarded by a court
or agreed upon in the settlement agreement. Attorney 1 notes Attorney 2
was retained under his retainer agreement with complainant. Attorney 1
states in July and August 2004, his full market hourly rate was $390.00
at set forth by the U.S. Attorney’s Office for the District of Columbia.
Attorney 1 states although his work in 2004 on the present case exceeded
$15,000.00, due to the financial strain on complainant’s family, he
capped the charges to complainant at $12,000.00. Attorney 1 states
that he was the primary author of complainant’s August 27, 2004 brief
responding to the agency’s appeal on the compensatory damages issue.
Attorney 1 states Attorney 2 was co-author and reviewer.
Attorney 1 attaches a billing statement to his supplementary affidavit
“that summarizes [his] work in 2004 and that lists in detail [his] fees
for work performed in 2007 and 2008.” Attorney 1 requested a total
of $18,681.00 in attorney’s fees. Specifically, Attorney 1 requests
payment at a rate of $390.00 per hour for the following legal work in
2004: .50 hours on July 1, 2004, to “Confer w/GMG [Attorney 2] via phone
re Terban v. DOE case facts and issues”; .30 hours on July 17, 2004, for
“Call w/GMG [Attorney 2] re receipt dates of hearing record, strategy for
appeal etc”; and 40 hours for work done from August 9 to 26, 2004, for
“Consultation and review of case facts and issues with GMG [Attorney 2]
(2 hours); review record research, and draft Response to OFO on DOE’s
appeal on the compensatory damages issue” [38 hours]. Attorney 1 requests
payment at an hourly rate of $425.00 for .10 hours on March 8, 2007,
for “Call w/ GMG [Attorney 2] re: Client’s email concerning status of
appeal” and .10 hours on April 30, 2007, to “Confer w/KA [an attorney
in Attorney 2’s firm] re scheduling conference call to discuss case
status/strategy w/Client.” Attorney 1 also requests .70 hours at a rate
of $440.00 per hour for “Review amd [sic] consultation w/Mr[.] Terban
on OPM reconsideration on pension set-off[.]” Attorney 1 requests .50
hours on February 17, 2008, at a rate of $440.00 per hour for “Review of
supplement to OFO petition for enforcement[.]” The remainder of the 4.9
hours listed at $440.00 per hour is for work performed in April 2008,
including reviewing the Commission’s decision; for consulting with
complainant regarding his options; and consulting with Attorney 2’s firm.
On July 21, 2008, Attorney 2 filed a “Petition for Enforcement for
Payment of Attorney’s Fees and Motion for Sanctions” in which he argued
that the agency waived its opportunity to challenge the attorney’s fees
requested as a result of its failure to issue a timely final decision
on attorney’s fees.
Thereafter, on August 26, 2008, the agency issued a decision awarding
$17,529.00 in fees and $186.59 in costs for Attorney 2 for a total award
of $17,715.59. The agency found the request for attorney’s fees for
the services of Attorney 1 in the amount of $18,681.00 was excessive and
duplicative. The agency noted the experience and knowledge of Attorney
2 was substantial and found it “beyond peradventure that [Attorney 2]
possesses ample experience to carry out the straightforward legal work
required by this case without the assistance and redundant services of
co-counsel.” Additionally, the agency found Attorney 1’s request for
attorney’s fees was not supported by existing documentation. The agency
noted that Attorney 1 acknowledged he is unable to find the retainer
agreement with complainant and is missing the invoice detailing his fees
for work on the 2004 response to the Commission on the agency’s appeal of
compensatory damages. The agency claims without the retainer agreement
Attorney 1 is unable to accurately bill his client, or to establish that
he was even properly of counsel or that his alleged involvement in this
case was appropriate or compensable.
CONTENTIONS ON APPEAL
In complainant’s November 7, 2008 appeal brief filed by Attorney 2,
complainant argued that the agency waived its opportunity to challenge
attorney’s fees since it failed to timely issue a final decision on
attorney’s fees. Specifically, complainant noted that the Commission
issued its decision on the compensatory damages appeal in complainant’s
favor on April 3, 2008, and ordered the agency to pay attorney’s fees.
Complainant noted that he submitted his statement of fees within 30 days
of his receipt of the Commission’s decision and submitted a supplement
to that statement on May 5, 2008. Complainant argued that since the
agency had all fee petition information and failed to issue its final
decision within the requisite 60 days specified in the regulations,
its final decision should be stricken and it should be precluded from
challenging attorney’s fees.
Alternatively, complainant argued that the work performed by Attorney 1
and Attorney 2 was neither redundant nor excessive. Complainant noted
that Attorney 1 drafted the bulk of the appeal brief on the issue of
compensatory damages with little involvement from Attorney 2. Complainant
explained that Attorney 2 performed other work related to the appeal in
that he reviewed the record, consulted with Attorney 1 on the appeal, and
performed limited research prior to the time the appeal brief was served
in late August 2004. Complainant stated that much of the research and
work performed by Attorney 2 prior to August 2004, concerned efforts to
have the agency appeal dismissed as untimely filed. Complainant argued
the role of lead representative for complainant changed after August
2004, from Attorney 1 to Attorney 2. Specifically, complainant stated
that Attorney 1 only performed 6.5 hours of work after August 2004,
while the bulk of Attorney 2’s work was performed after August 2004.
Moreover, with regard to the agency’s assertion that the need for
Attorney 1’s services was questionable, complainant noted that Attorney
1 was complainant’s primary representative between 1998 and 2004,
and handled the actual EEOC hearing on the case. Complainant stated
that had Attorney 2 drafted the appellate brief instead of Attorney 1,
this would have unnecessarily increased fees because Attorney 2 would
have needed to invest significant time reviewing the record. Rather,
complainant contended that Attorney 1’s investment of 40 hours in drafting
the detailed appeal brief was the most efficient manner to handle the
situation.
With regard to the agency’s argument that attorney’s fees should be denied
to Attorney 1 due to the lack of a retainer agreement, complainant noted
that he and Attorney 1 both affirmed that a written retainer agreement
between them existed. Complainant also noted that Attorney 1 represented
complainant for over a decade, including at the EEOC hearing and
negotiated on complainant’s behalf in the 2004 Settlement Agreement.
With regard to the reasonableness of the hourly rate requested,
complainant noted that in his fee petition, Attorney 1 submitted
documentation of the prevailing market rate through Attorney 2’s
affidavit, the affidavit of attorney RDL, and the Laffey matrix.
Complainant argued the agency did not challenge the reasonableness of
the hourly rate.
Further, although Attorney 1’s contemporaneous records of work performed
were lost, complainant argued that Attorney 1 did contemporaneously
document the work he performed by documenting the work on his calendar
and by providing evidence of correspondence with Attorney 2 regarding
the case. Complainant cites to Attorney 1’s reconstruction of the hours
worked on this case as explained in his October 23, 2008 declaration
and the accompanying photocopy of his August 2004 calendar and redacted
electronic mail messages from August 2004, sent between Attorney 1 and
Attorney 2 regarding complainant’s case. Thus, complainant argued
that 40 hours of work performed to draft a brief that exceeded 90
pages on an appeal involving a $136,000.00 compensatory damages award
is reasonable.
The agency provided a February 18, 2009 response to complainant’s appeal
claiming that it has paid all reasonable attorney’s fees in this case.
At the outset, the agency challenges Attorney 2’s standing to submit
the subject appeal. The agency notes that it approved the requested
$17,715.59 in attorney’s fees and costs requested in Attorney 2’s
May 2, 2008 fee petition. The agency notes that Attorney 2’s firm
represents complainant and it states it has not received notice that
Attorney 2 represents Attorney 1 or that Attorney 1 has given Attorney
2 authorization to pursue this claim on his behalf.
Moreover, the agency claims that Attorney 1 double-billed the agency
for services for which payment has already been made. Specifically, the
agency claims that with regard to the $15,912.00 in fees requested for
July and August 2004, it has previously paid $59,000.00 to Attorney 1 in
settlement of all existent and future attorney’s fees through September
30, 2004.
Additionally, the agency claims that the fee petition includes $3,279.00
in fees for services that are duplicative of charges filed by Attorney 2.
The agency states that throughout these proceedings Attorney 2 was
complainant’s counsel of record. The agency argues Attorney 2 and his
firm were more than adequately experienced to handle this case and claims
Attorney 1’s services were not required in this case. The agency claims
that on July 1, 2004, July 17, 2003, March 8, 2007, and April 30, 2007,
both Attorney 1 and Attorney 2 double-billed the agency for telephone
conversations.
Finally, the agency argues that Attorney 1 has not provided sufficient
documentation to justify his request for attorney’s fees. Specifically,
the agency notes Attorney 1 is unable to locate his 1998 retainer
agreement with complainant or the invoice detailing his fees for work
on the 2004 appeal brief on the issue of compensatory damages.
Attorney 2 submitted a March 10, 2009 reply to the agency’s February
18, 2009 response. In the March 10, 2009 reply, Attorney 2 argues
that the agency’s February 18, 2009 response was untimely filed.
Alternatively, with regard to the agency’s argument that Attorney 2
has no standing to bring this appeal, Attorney 2 states that his firm
“represents’ Appellant’s interests” and argues complainant has standing
“to challenge an award of less than full relief” for work done on a
successful appeal.
With regard to the agency’s position that the fees for the work performed
by Attorney 1 between July 2004 and September 2004, were already paid
pursuant to the 2004 settlement agreement, Attorney 2 states that the
agreement does not state that it covers all fees incurred through the date
of execution. Attorney 2 notes the agency already acquiesced in a finding
to the contrary when it paid attorney’s fees for work done by Attorney
2 prior to September 30, 2004, the execution date of the agreement.
Attorney 2 notes that the settlement agreement provided that only the
issue of compensatory damages would be decided by the EEOC on appeal
and that the Commission ruled in complainant’s favor on the issue of
compensatory damages and awarded attorney’s fees.
Moreover, Attorney 2 notes that complainant’s representatives did not
double-bill the agency and states each performed work reasonably related
to advancing complainant’s interests. Attorney 2 notes that Attorney
1 handled the liability and damages portion of the case and Attorney 2
joined the case after the hearing and near the time the AJ issued her
decision in 2004. Attorney 2 states Attorney 1 was best equipped to
prepare the brief on compensatory damages. With regard to the claim that
Attorney 1’s work was duplicative of work done by Attorney 2, complainant
notes that the agency cites four telephone calls on July 1, 2004, July 17,
2004, March 8, 2007, and April 30, 2007, when Attorney 1 and Attorney 2
consulted with one another on the case. Attorney 2 states the agency
does not produce any evidence that these four telephone consultations
were unreasonable.
ANALYSIS AND FINDINGS
Title VII and the Commission’s regulations authorize the award of
reasonable attorney’s fees and costs to a prevailing complainant.
29 C.F.R. § 1614.501(e); see also Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), (November 9, 1999)
Chapter 11. 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);
Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424
(1983).
All hours reasonably spent in processing the complaint are compensable,
but the number of hours should not include excessive, redundant or
otherwise unnecessary hours. EEO MD-110 at 11-15. A reasonable hourly
rate is based on prevailing market rates in the relevant community for
attorneys of similar experience in similar cases. EEO MD-110 at 11-6.
An application for attorney’s fees must include a verified statement of
attorney’s fees accompanied by an affidavit executed by the attorney of
record itemizing the attorney’s charges for legal services. EEO MD-110
at 11-9. While the attorney is not required to record in great detail
the manner in which each minute of his 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. Department of the Treasury, EEOC Appeal No. 07A10035
(May 6, 2003). The attorney requesting the fee award has the burden
of proving, by specific evidence, entitlement to the requested fees and
costs. Koren v. United States Postal Service, EEOC Request No. 05A20843
(February 18, 2003).
Regarding complainant’s argument that the agency waived its opportunity
to challenge attorney’s fees by failing to timely issue a final decision
on attorney’s fees, we find that even if the agency failed to issue a
timely decision, such a failure is tantamount to a denial of the request
for attorney’s fees and does not amount to a waiver of the right to
object to the payment of attorney’s fees.
Upon review of the record, we find Attorney 1 did not meet his burden
to show that he is entitled to the requested amount of attorney’s fees.1
With regard to the reasonableness of the hourly rate charged by Attorney
1, we find Attorney 1 did not submit documentation to support the hourly
rate requested. Attorney 1 requests an hourly rate of $390.00 for 2004,
an hourly rate of $425.00 for 2007, and an hourly rate of $440.00 for
2008. In support of the reasonableness of his hourly rate, the record
contains affidavits from Attorney RDL and Attorney 2 who both state that
they “understand that [Attorney 1] undertook representation in this case
at a rate of $240.00, with subsequent increases up to $400.00.” Neither
of these affiants state that Attorney 1 customarily charged $390.00 per
hour in 2004, $425.00 per hour in 2007, or $440.00 per hour in 2008;
nor do they attest that the rate requested was the prevailing community
rates for attorneys of comparable experience and expertise at the time.
In contrast, we note that in his April 2008 affidavit, Attorney RDL,
who has been practicing law for twenty-six years and currently works in
a general civil practice with emphasis on Federal labor and employment
matters, states that his 2008 customary charge is $300.00 per hour for
his legal services. Attorney 1 cites to the Laffey Matrix 2003-2008
from the U.S. Attorney’s Office for the District of Columbia in support
of his requested hourly rates. However, we note that in his affidavit,
Attorney 1 did not state how long he has engaged in the practice of law.
Further, while we note that it is likely that Attorney 1’s hourly rate
increased between 2004 and 2008, we find that Attorney 1 failed to meet
his burden of showing when such an increase occurred. Therefore, we
find the record supports a reasonably hourly rate of $240.00 per hour
for all compensable hours in this case.
Regarding the specific hours billed, we note that the record contains
an affidavit from Attorney 1 along with his contemporaneous billing
records for 2007 and 2008 totaling 6.3 hours. Attorney 1 does not have
contemporaneous billing records for the 40.8 hours he billed in 2004.
However, we note that the two conferences with Attorney 2 listed on July
1, 2004, and July 17, 2004, totaling .50 and .30 hours were substantiated
by the contemporaneous billing records submitted by Attorney 2. Further,
although Attorney 1 cannot determine the exact days he worked on the brief
in support of complainant’s appeal, we note that the brief was signed
by Attorney 1 and filed with the Commission on August 27, 2004. In his
affidavit, Attorney 1 states that he was the primary author of the brief.
Attorney 2 corroborates Attorney 1’s contention that the appeal brief was
drafted by Attorney 1 due to his knowledge of the record and involvement
in the EEOC hearing. Further, we note Attorney 2 did not bill for time
spent researching and drafting the appellate brief; but rather, Attorney
2 billed for time spent consulting with Attorney 1 on the brief and
for reviewing the draft brief. In the present case we find Attorney 1
has submitted “a reasonably accurate substantial reconstruction of time
records” for time billed in 2004.2 See EEO MD-110 at 11-9. Further,
despite the agency’s contention, we do not find evidence that any of
the specific hours listed were redundant or duplicative of the hours
billed by Attorney 2. Furthermore, we find that these attorney’s fees
at issue were not part of the settlement agreement.
However, we find that an across the board reduction of the hours
claimed by Attorney 1 is warranted. Specifically, we note that the
agency originally filed an appeal to the Commission challenging the
AJ’s finding of discrimination and the amount of compensatory damages
awarded by the AJ. Complainant’s attorneys submitted their appeal brief
to the Commission on August 27, 2004, responding to the issues raised
in the agency’s appeal. Pursuant to the September 30, 2004 settlement
agreement, the parties settled all the issues raised on appeal with
the exception of compensatory damages. In its April 3, 2008 decision,
the Commission limited its decision to a review of compensatory damages
and issued a decision in complainant’s favor upholding the AJ’s award of
compensatory damages. Accordingly, we find complainant is only entitled
to attorney’s fees for work done by Attorney 1 involving his success
on the issue of compensatory damages. While Attorney 1 did not specify
which hours were spent working on the compensatory damages issue, we note
that out of the 91 pages in the appeal brief, the issue of compensatory
damages was only addressed on nine of those pages. Accordingly, we
find that an across the board reduction of the requested hours by 90%
is appropriate in this case. Thus, we find that complainant is entitled
to reimbursement of Attorney 1’s fees in the amount of $1,130.40 (4.71
hours multiplied by an hourly rate of $240.00).
CONCLUSION
It is the decision of the Commission to MODIFY the final agency decision
addressing the amount of attorney’s fees to be awarded. We conclude that
complainant is entitled to attorney’s fees in the amount of $1,130.40.
ORDER
Within 30 days of the date this decision becomes final, to the extent
not done so previously, the agency shall pay complainant payment the
amount of $1,130.40 in attorney’s fees. 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 (H0900)
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 (K1208)
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 (M1208)
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), 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 (T0408)
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 (Z1008)
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 23, 2009
__________________
Date
1 The reasonableness of the $17,529.00 in attorney’s fees and $186.59 in
costs paid to Attorney 2 for work done between July 1, 2004, and May 2,
2008, is not before the Commission.
2 In finding the hours expended by Attorney 1 were reasonable, we did not
consider the October 23, 2008 declaration submitted by Attorney 1, the
photocopy of Attorney 1’s August 2004 calendar, or the redacted August
2004 electronic mail messages since these documents were submitted for
the first time on appeal.
0120090329
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
11
0120090329
