Kennedy v. Whitehurst, Civ. A. No. 80-1183.

• Decision Date: 10 March 1981
• Docket Number: Civ. A. No. 80-1183.
• Citation: 509 F. Supp. 226
• Parties: Bess KENNEDY, Plaintiff, v. William H. WHITEHURST, Defendant.
• Court: U.S. District Court — District of Columbia

509 F. Supp. 226

Bess KENNEDY, Plaintiff, v. William H. WHITEHURST, Defendant.

Civ. A. No. 80-1183.

United States District Court, District of Columbia.

March 10, 1981.

Joel P. Bennett, Washington, D. C., for plaintiff.

Melvin Bolden, Jr., Asst. Corp. Counsel, Washington, D. C., for defendant.

MEMORANDUM

GASCH, District Judge.

This case, fashioned as an action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., is currently before the Court on plaintiff's motion for summary judgment. By this complaint, plaintiff seeks only to recover the costs of attorney's fees for services of counsel at the administrative level which resulted in the settlement of her case on the merits by a retroactive promotion. Because the Court has concluded that the ADEA does not authorize the Court to award attorney's fees for services at the administrative level, the plaintiff's motion will be denied. Further, in light of this disposition, it is apparent that no further refinement of the factual record or the legal arguments provided by counsel would alter the conclusion that plaintiff is not entitled to prevail on this claim for relief. For this reason, there is no cause for the Court to delay the entry of summary judgment for defendant. Accordingly, the Court will enter summary judgment for defendant.

I. BACKGROUND.

Plaintiff has been an employee of the District of Columbia Department of Human Services and its predecessor agency, since December of 1970. In August 1979, plaintiff, then employed as a GS-9, step 5, Social Service Representative, filed a complaint with the District of Columbia Office of Human Rights alleging that she had been denied promotion opportunities because of her race, gender and age.¹ In September of 1979, plaintiff filed a complaint of age discrimination with the United States Equal Employment Opportunity Commission (EEOC).² As a result of the latter complaint, the EEOC negotiated a settlement agreement with defendant by which plaintiff was retroactively promoted to the GS-11 level with an award of back pay.³ Despite plaintiff's requests, made through counsel, the settlement did not include an award of attorney's fees.

The parties are in disagreement as to the effect of the settlement agreement in the present case. The defendant asserts that the settlement entered under the EEOC's "no-fault" settlement procedures⁴ does not represent either a finding or a concession that plaintiff had in fact been the victim of age discrimination. Plaintiff, on the other hand, relying on certain communications between the EEOC and defendant,⁵ contends that this resolution conclusively established that plaintiff was the victim of discrimination based on her age. The Court's disposition of the present dispute does not, however, necessitate the resolution of the question thus presented. Even assuming plaintiff is correct and these events at the administrative level conclusively establish that plaintiff was the victim of unlawful discrimination, the Court's interpretation of the ADEA still precludes an award of attorney's fees in the present case.

II. DISCUSSION.

The starting point for any discussion of the availability of attorney's fees for a successful litigant in federal court is the rule announced by the United States Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Simply stated, the Court there held that any deviation in the federal courts from the traditional "American rule" that parties are to pay their own attorneys must be based on a long recognized exception to that rule⁶ or some specific statutory authorization. 421 U.S. at 270-71, 95 S.Ct. at 1628, see also Montgomery Environmental Coalition v. Costle, 646 F.2d 595 at 596 (D.C.Cir. 1981).

As the present case does not fall within any of the recognized exceptions to the American rule, plaintiff seeks to justify an award of fees by reliance on § 7(b) of the ADEA, 29 U.S.C. § 626(b), which provides in part:

The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, ....

Id. That section's reference to section 216 is to § 16 of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216, which provides in pertinent part:

An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction.... The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.

Id. (emphasis added). The narrow question presented by this case is whether the sections quoted above authorize the Court to make an award of attorney's fees to an ADEA plaintiff for services performed at the administrative level when the underlying claim was settled without resort to the district court.

As a threshold matter, it should be noted that claims of age discrimination in federal employment, including those by employees "in those units in the government of the District of Columbia having positions in the competitive service" are governed by 29 U.S.C. § 633a. That section provides in pertinent part:

(c) Any person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter.

Subsection (f) added by § 5(e) of the Age Discrimination in Employment Amendments of 1978, Pub.L. 95-256, 92 Stat. 191, states that:

Any personnel action of any department, agency, or other entity referred to in subsection (a) of this section shall not be subject to, or affected by, any provision of this chapter other than the provisions of section 631(b) of this title.

29 U.S.C. § 633a(f).⁷ A literal interpretation of this language would require that the present dispute be resolved exclusively by reference to § 633a which makes no mention of any award of attorney's fees to a successful litigant either at the administrative level or in the district court. The question of whether that section precludes an award of fees in this case (or for that matter in any ADEA case against a federal employer) has not been addressed by either party. To hold that § 633a(f) has that effect, however, would prove far more than is strictly necessary for the disposition of this case. See Edmondson v. Simon, 87 F.R.D. 487, 489 n.1 (N.D.Ill.1980).⁸But see DeFries v. Haarhues, 488 F.Supp. 1037, 1045 (C.D.Ill.1980).⁹

For purposes of the present motion, the Court assumes that federal employees in actions under 29 U.S.C. § 633a enjoy the same right to an award of attorney's fees as employees in the private sector in actions under 29 U.S.C. § 626 as provided by 29 U.S.C. § 216(b). The question remains whether those sections authorize an award of attorney's fees for services performed at the administrative level.

This appears to be a case of first impression. Plaintiff places principal reliance on cases decided under the attorney's fees provision at § 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). That section provides:

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

Id.¹⁰ Plaintiff argues that since Title VII principles in other areas have been applied by analogy in ADEA cases, the analogy should be extended to govern the availability of attorney's fees for services performed at the administrative level. Plaintiff indicates that Title VII precedents have been applied to determining the elements of a plaintiff's prima facie case of age discrimination under the ADEA, see, e. g., Price v. Maryland Casualty Co., 561 F.2d 609, 612 (5th Cir. 1977); Braswell v. Kobelinski, 428 F.Supp. 324, 328 (D.D.C.1976); Jones v. Cleland, 466 F.Supp. 34, 37 (N.D.Ala.1978), and to determining the amount of attorney's fees ultimately awarded to a successful ADEA litigant. See, e. g., Cleverly v. Western Electric Co., 594 F.2d 638, 642 (8th Cir. 1979). Plaintiff urges that by the same token the rule entitling a successful Title VII plaintiff to fees incurred at the administrative level generally adhered to in this circuit, see, e. g., Parker v. Califano, 561 F.2d 320, 333 (D.C.Cir.1977); Smith v. Califano, 446 F.Supp. 530, 533 (D.D.C.1978), and recently approved by the Supreme Court, Carey v. New York Gaslight Club, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980), should also be applicable in this ADEA action.

Reasoning by analogy is often instructive but remains persuasive only as long as similar considerations are germane to the respective inquiries. Thus, where the question is one of the plaintiff's burden of proof, analogy between Title VII and ADEA cases is manifestly appropriate since in each the crucial inquiry is whether the actions in question were prompted not by individual merit but by some impermissible motive. Likewise, the rate at which a successful litigant is compensated for attorney's fees presents an appropriate occasion for analogy since in both Title VII and ADEA cases the question is the reasonable value of the services performed. A review of the Supreme Court's rationale in Carey v. New York Gaslight Club, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723, principally relied upon by plaintiff, illustrates, however, the evident inappropriateness of reaching the same result in this case. To the contrary, an examination of the same factors which led to the conclusion that Title VII authorizes an award of fees for attorney's services at the administrative level counsels the...