2025000693•EEOC Appeal 2025000693
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Karen L.,1 Complainant, v. Douglas A. Collins, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2025000693 Hearing No. 430-2022-00066X Agency No. 2004-0652-2021-103298 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's October 22, 2024, final order concerning her equal employment opportunity (EEO) complaint of 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 VACATES the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Kinesiotherapist, GS-0635-10, at the Agency’s VA Medical Center, located in Richmond, Virginia. On May 28, 2021, Complainant filed an EEO complaint 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.
2025000693 2 alleging that the Agency discriminated against her in reprisal for prior protected EEO activity when, on March 5, 2021, she was removed from her clinical duties for approximately six days and, among other impacts, she was not permitted to work scheduled overtime on March 6 and 7, 2021.2 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 timely requested a hearing. The AJ assigned to the case issued a summary judgment decision in favor of Complainant and awarded make whole relief, including, but not limited to $9,865.86 in attorney’s fees.3 The Agency subsequently issued a final order fully adopting the AJ’s findings. CONTENTIONS ON APPEAL Complainant asserts that the AJ erred in his calculation of attorney’s fees by applying the Richmond, Virginia, market rate as opposed to the Washington D.C. market rate. STANDARD OF REVIEW A decision issued without hearing, pursuant to 29 C.F.R. § 1614.110(b), 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 – Hourly 2 Complainant withdrew several additional claims. 3 The AJ also awarded backpay, nonpecuniary compensatory damages, and costs which are not at issue herein.
2025000693 3 Attorney Hourly Rate The law is well-established that a successful civil rights litigant is entitled to be reimbursed for attorney's fees incurred at a reasonable hourly rate based on “prevailing market rates in the relevant community” for attorneys of similar experience in similar cases. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 11, § VI.F.1 (Aug. 5, 2015). Here, the parties differ on the question of which is the appropriate “community” for determining the prevailing attorney's fees rate. Complainant’s attorney’s fee petition sought reimbursement at rates charged in the Washington, D.C. area, where Complainant's counsel maintains offices.4 The AJ concluded that the appropriate community was Richmond, Virginia where Complainant resides and the actions underlying the complaint occurred. Based on this finding, the AJ reduced the attorney’s fees award from $15,789.90 to $9,812.50. The Commission has held that if a party does not find counsel readily available in the locality of the case with whatever degree of skill that may reasonably be required, it is reasonable for the party to go elsewhere to find an attorney. See Harden v. Soc. Sec. Admin., EEOC Appeal No. 0720080002 (Aug. 12, 2011) (citing Southerland v. U.S. Postal Serv., EEOC Appeal No. 01A05403 (Oct. 16, 2002)). The burden is on the agency to show that a complainant's decision to retain out-of-town counsel was unreasonable. Id; see also Elliott v. Dep’t. of Veterans Affairs, EEOC Appeal No. 0720080046 (Apr. 15, 2009) (holding that (1) an affidavit from a veteran local attorney attesting to representing clients in “various employment related administrative proceedings” and estimating that 300 attorneys in the gulf coast area perform “this type of legal work,” and (2) affidavits from two attorneys attesting to representing clients in EEOC proceedings, in the area, to be insufficient to show that appropriately skilled counsel was “readily available and that complainant's decision to use out-of-state counsel was unreasonable); Dayle H. v. Dep’t. of Veterans Affairs, EEOC Appeal No. 0120150116 (Apr. 18, 2017) (holding that agency did not carry its burden of proving that qualified counsel was readily available to represent the complainant in the Indianapolis area). 4 The Agency did not address the issue of market rate in its response to Complainant’s attorney’s fee petition.
2025000693 4 In the present case, the Agency did not assert an argument, let alone present any evidence to support such an argument. Rather, the AJ made the conclusory statement that Richmond, Virginia was the relevant market rate, without any facts or evidence to support such conclusion. As the record is devoid of any evidence suggesting that it was unreasonable for Complainant to seek counsel in Washington, D.C., and the Agency made no such argument, we agree with Complainant that the Washington D.C. rate is appropriate here. While we agree that the Washington D.C. market is the proper location to determine the market rate, the record does not contain sufficient evidence to determine what the rate should be. Complainant’s attorney relies primarily on the Fitzpatrick matrix.5 In order to determine an appropriate rate for a particular attorney in a particular case, matrices should be supplemented with “surveys to update the[m]; affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases; and evidence of recent fees awarded by the courts or through settlement to attorneys with comparable qualifications handling similar cases.” MD-110 likewise notes the need for additional details, stating that a verified statement of fees “shall include . . . documentary evidence of reasonableness of rate, such as an affidavit stating that the requested rate is the attorney’s normal billing rate, a detailed affidavit of another attorney in the community familiar with prevailing community rates for attorneys of comparable experience and expertise, a resume, a list of cases handled, or a list of comparable cases where a similar rate was accepted.” MD-110, Chapter 11 at § VI(G)(1)(c) (emphasis added). Eley v. D.C., 793 F.3d at 101 (quoting Covington v. D.C., 57 F.3d 1101, 1109 (D.C. Cir. 1995); see also Chara S. v. Dep’t. of Justice, EEOC Appeal No. 2024005027 (Aug. 10, 2026). 6 5 The Fitzpatrick Matrix provides hourly rates for legal fees for complex federal litigation in the District of Columbia. Like the Laffey Matrix, the U.S. Department of Justice publishes the Fitzgerald Matrix on its public website. www.justice.gov/usao-dc/media/1395096/dl?inline. 6 While a petitioner is not precluded from using a matrix as a “starting point,” the petitioner bears the burden of demonstrating that the matrix meaningfully assists in determining a reasonable rate for work in the EEOC federal sector administrative complaint process. Existing matrices derived from litigation in federal court, like the Fitzpatrick Matrix and its ilk, may not satisfy that burden
2025000693 5 Accordingly, on appeal, we find that Complainant’s fee petition did not contain sufficient evidence to establish a reasonable hourly rate under the lodestar method. 7 Although Complainant’s attorney relies on the Fitzpatrick Matrix, we do not fault that decision because Commission decisions have, until recently, routinely endorsed that approach. Nevertheless, because the lodestar method requires individualized determination supported by competent evidence, Complainant’s attorney must submit a new fee petition containing sufficient evidentiary support to justify their rate. CONCLUSION Accordingly, the Agency’s final order is V A C A T E D , and this matter is REMANDED to the Agency for compliance with the ORDER herein. ORDER The Agency shall award Complainant attorney’s fees following the submission of a new attorney’s fees petition in accordance with this decision and the Order (below). 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. because they were designed to estimate prevailing rates for complex federal litigation in the Washington, D.C., market, not for representation in administrative EEO proceedings, where the nature of the work, procedural setting, and legal market may differ substantially. To be useful, a matrix must be calibrated to the nature of the work done in the EEO administrative process. 7 Affidavits solely from Complainant’s attorney or attorneys within the same firm are insufficient to establish a community rate. See MD-110, Chapter 11 at § VI(G)(1)(c).
2025000693 6 ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501 (e)(1)(iii)), 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 the date this decision was issued. 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 (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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.
2025000693 7 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1125) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Sector (OFS) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit their request and arguments to the Director, Office of Federal Sector, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFS receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
2025000693 8 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files their request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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(f). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0124) 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 their 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.
2025000693 9 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: T. Gimbrere Acting Director's signature T. Gimbrere, Acting Director Office of Federal Sector September 14, 2026 Date
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