William B. Smith,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112724
Agency No. 2001-0534-2007101565
DECISION
Complainant timely initiated an appeal from the Agency’s March
22, 2011 final Agency decision (FAD) concerning his entitlement
to attorneys’ fees as a result of a finding of 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 appeal is accepted pursuant
to 29 C.F.R. § 1614.405(a).
BACKGROUND
In Smith v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120091163
(Jan. 21, 2011), the Commission reversed in part the Agency’s final
order and found that the Agency had violated the Equal Pay Act of
1963 (EPA), as amended, 29 U.S.C. § 206(d) et seq. when Complainant
learned that the position for a female Clinic Administrator at a smaller
Outpatient Clinic (OPC), was graded at the GS-13 level, while his position
at a larger OPC was graded at the GS-12 level. The Commission noted that
where the jurisdictional prerequisites of both the EPA and Title VII are
satisfied, a violation of the EPA is a violation of Title VII. See 29
C.F.R. § 1620.27; see also Jones v. Dep’t of Veterans Affairs, EEOC
Appeal No. 01994717 (Nov. 2, 2000). Complainant alleged nine additional
claims; however, the Commission affirmed the final order finding that
Complainant was not subjected to discrimination or harassment as to
those claims.
The Commission ordered the Agency to (1) promote Complainant to the
GS-13 grade level; (2) determine the appropriate amount of back pay,
with interest, and benefits for the difference between the GS-12 salary
he received and the GS-13 salary he should have received; (3) issue
a FAD on his claim for compensatory damages; (4) provide EEO training
to responsible management officials; (5) provide a compliance report to
the Commission; (6) post a “Notice to Employees” that discrimination
has occurred; and, (7) pay reasonable attorneys’ fees and costs.
On March 22, 2011, the Agency issued a FAD regarding Complainant’s
request for attorneys’ fees and costs. Complainant requested $19,982
in attorneys’ fees and $361.10 in costs or $20,343.10 in total.
The Agency found that Complainant’s claims were not intertwined in
such a manner to warrant the entire award of attorneys’ fees requested.
As Complainant only prevailed on one of the 10 claims alleged, the Agency
found that Complainant was only entitled to 10% of the amount requested.
Thus, the Agency awarded Complainant $1,998.20. In addition, the Agency
found that no supporting documentation was submitted for the amount of
costs requested; however, the Agency determined the amount was reasonable
and awarded Complainant the requested $361.10.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency’s award of 10% of
the requested attorneys’ fees was improper because the fee petition
already excluded hours spent on his unsuccessful claims. Further,
Complainant argues that he is entitled to the full amount requested
because he prevailed on one of the most material claims in his complaint
and recovered a significant portion of the relief sought. Accordingly,
Complainant requests that the Commission award him $20,343.10 in
attorneys’ fees and costs.
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), at 11-1 (Nov. 9, 1999).
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. There is a strong presumption that this amount represents
the reasonable fee. See 29 C.F.R. § 1614.501(e)(ii)(B); Blum v. Stenson,
465 U.S. 886, 899 (1984); Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).
After a careful review of the record and consideration of the above
criteria, the Commission finds that the Agency’s 90% reduction in the
requested attorneys’ fee award was improper. In total, Complainant
requested $19,982 in attorney’s fees for 82.9 hours of work related to
the Equal Pay Act claim upon which he prevailed. Complainant submitted
invoices evidencing that his attorneys expended a total of 125.5 total
hours for work performed on the entire complaint. Thus, the amount
requested already included a 33% reduction in hours for work expended on
Complainant’s unsuccessful claims. This reduction fairly addresses the
Agency’s expressed concerns. Taking into account that Complainant was
the prevailing party on one of the most material claims in his complaint
and the remedy obtained, the Commission concludes that that any further
fee reduction is not warranted.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission MODIFIES
the Agency’s final decision and REMANDS the matter to the Agency to comply
with the Order below to the extent that it has not already done so.1
ORDER
Within 30 days of the date this decision becomes final, the Agency
shall pay Complainant $20,343.10 in attorneys’ fees and costs.
Evidence showing that such payment has been made shall be sent to the
Compliance Officer referenced below.
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 (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 (Nov. 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 (S0610)
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. 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 (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
October 17, 2011
Date
1 Fees are available for time spent on a fee petition as well as for
time spent defending a petition on appeal. EEO MD-110 at 11-1.
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0120112724
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120112724
