Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

2019001619 (E.E.O.C. Sep. 4, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Bella S., et al.,1
Class Agent,

v.

William P. Barr,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.

Appeal No. 2019001619

Hearing No. 570-2015-000037X

Agency No. 89-665-98-005

DECISION

The Class Agent filed a motion with the Equal Employment Opportunity Commission (EEOC or
Commission), regarding our previous determinations of the class’s entitlement to attorney’s fees
for services rendered through December 2011 concerning its equal employment opportunity (EEO)
class complaint of alleged 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 DENIES Complainant’s Motion to Correct a Previous Decision Nunc Pro Tunc.

ISSUE PRESENTED

The issue presented is whether the Commission should grant the Class’s Motion to Correct our
previous decisions in EEOC Appeal Number 0120122033 and EEOC Request Number Request
No. 0520130561 Nunc Pro Tunc.

BACKGROUND

This class complaint has a complicated, protracted history spanning decades. On March 17, 1993,
the Class Agent, then a GS-13 Special Agent, filed a class EEO complaint in which she alleged

1 This case has been randomly assigned a pseudonym which will replace the Class representative’s
name when the decision is published to non-parties and the Commission’s website.
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that female Agency agents were subjected to sex discrimination regarding foreign assignments and
promotions. In EEOC Request No. 05960870 (October 1, 1998), the Commission issued a
decision directing certification of a class composed of “female Special Agents who were denied
foreign assignments between 1990 and 1992.”

After a nine-day hearing in July 2009, an Equal Employment Opportunity Commission
Administrative Judge (AJ) issued a Class Action Interim Hearing Decision dated April 27, 2011,
finding that the class had been subjected to sex discrimination as alleged. On January 12, 2012,
the AJ issued a Report of Findings and Recommendations, which included the AJ’s previous
discrimination finding as well as orders of remedial relief. In particular, the AJ ordered the Agency
to pay $883,628.75 in attorney’s fees. On March 13, 2012, the Agency issued a final decision
rejecting the AJ’s decision while simultaneously appealing it.

In EEOC Appeal No. 0120122033 (June 7, 2013), the Commission reversed the Agency’s
decision, and in pertinent part, ordered the Agency to pay $1,080.354.50 in attorney’s fees for
services rendered before the Agency’s appeal. The Commission further ordered the Agency to
process any additional requests for attorney’s fees associated with the Agency’s appeal. In EEOC
Request No. 0520130561 (August 12, 2014), the Commission denied the Agency’s request for
reconsideration but modified our order of payment of attorney’s fees to $903,628.75, which
represented $883,628.75 in fees to current Class Counsel and $20,000 to former Class Counsel.
Additionally, the Commission ordered the Agency to process additional requests associated with
EECO Appeal No. 0120122033 and EEOC Request No. 0520130561.

On September 11, 2014, the Class submitted a fee petition to the Agency that sought additional
attorney’s fees for services rendered from the time of the AJ’s decision until the submission of its
fee petition. The Class also requested payment of attorney’s fees for the Agency’s purported delay
in providing payment of attorney’s fees awarded by the AJ and thereafter modified by the
Commission. In that regard, the Class maintained that the Agency owed an additional $194,866
according to 2014-2015 Laffey Matrix standards for calculating attorney’s fees. Further, the Class
sought additional attorney’s fees for a mathematical error committed by the Agency in a May 24,
2011, filing that the AJ relied upon in her decision, which resulted in a $100,027 underpayment of
attorney’s fees.

On November 25, 2014, the Class filed a motion with the Commission asserting that the Agency
failed to issue a decision within 60 days of its fee petition for services rendered prior to its appeal
in EEOC Appeal No. 0120122033. In EEOC Appeal No. 0120150750 (January 9, 2018), the
Commission dismissed the appeal on the basis that the matter was still pending before an AJ, and
the Class had already requested that the AJ address the issue of attorney’s fees associated with
EEOC Appeal No. 0120122033 and EEOC Request No. 0520130561.

On January 24, 2018, the Class asked the AJ for an additional $353,435.25 in attorney’s fees
because the Agency committed a “tabulation error” in its payment of pre-2011 fees, and the 2011
fee award should have been updated to 2018 Laffey rates. On March 19, 2018, the AJ issued an
Order on Pending Motions.
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Specifically, the AJ ordered the Class to take reasonable steps to destroy records containing class
members’ Social Security information and directed the Office of Personnel Management (OPM)
to provide the Agency with current contact information for potential class members. Additionally,
the AJ denied the Class’s request for quarterly payment of attorney’s fees after the Commission’s
January 9, 2018, decision in EEOC Appeal No. 0120150750. However, the AJ ordered the Agency
to pay Class Counsel $979.76 in costs for copying, postage, and courier charges, and $274,383.63
for time spent on the case from January 1, 2012, through September 11, 2014 under 2018 Laffey
Matrix rates. Further, the AJ denied the Class’s request for $353,435.25 for services rendered
from the inception of the case through December 31, 2011. The AJ reasoned that Class’s “requests
are not properly before me and should have been appealed to OFO [EEOC’s Office of Federal
Operations] to timely request reconsideration within 30 days of receiving the decision in August
of 2014.” AJ’s March 19, 2018, Decision, p. 8.

The Class filed a request for reconsideration asking the Commission to reconsider our previous
decision or, in the alternative, to consider its filing to be an appeal of the AJ’s March 19, 2018,
order regarding attorney’s fees. In EEOC Request No. 0520180353 (December 4, 2018), the
Commission denied the reconsideration request but clarified our prior decision. Specifically, the
Commission found that the Agency did not violate our previous orders when it filed an opposition
to the Class’s September 11, 2014, fee petition with the AJ instead of issuing a final decision
because the Class had filed an appeal with the Commission on the same matter during the same
period.

Additionally, the Commission noted that, in EEOC Appeal No. 0120150750, the Class also sought
additional attorney’s fees for changes to the Laffey Matrix and the Agency’s mathematical error.
The Commission found that, in doing so, the Class improperly commingled the request for fees on
appeal with an untimely request to enhance the fees awarded in August 2014. The Commission
reasoned that the Class’s arguments were “foreclosed” because they should have been raised when
the matter was on appeal (through EEOC Appeal No. 0120122033). The Commission also
determined that, to the extent that the Class asserted that the reconsideration request was an appeal
of an AJ’s March 19, 2018, decision regarding attorney’s fees, the Class needed to file a separate
appeal regarding that decision within 30 days of the date of the reconsideration decision. On or
about January 3, 2019, the Class Agent notified the Commission of the class’s appeal of the AJ’s
March 19, 2018, decision.

CONTENTIONS ON APPEAL

On appeal, the Class submits a motion for the Commission to correct its previous decision nunc
pro tunc because we previously entered an order of attorney’s fees and costs based on an
“erroneous dollar figure presented by the Agency.” The Class maintains that, in calculating Class
Counsel’s fees through May 2011, the Agency’s spreadsheet erroneously stated that attorney’s
fees for that period were $883,628.75, instead of the actual $983,655.75 incurred.
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The Class further maintains that the class sought to correct the $100,0272 error by bringing it to
the attention of the Agency in its September 11, 2014, request for payment of additional attorney’s
fees, but the Agency failed to issue a final decision on the matter. As such, the Class maintains
that the class brought the matter before the AJ, but the AJ found that only OFO could correct the
matter.

The Class argues that the Commission should now correct its 2014 decision on attorney’s fees
incurred through 2011 nunc pro tunc because it has previously reopened matters and granted
petitions for clarification when clerical errors occurred, or when an erroneous dollar figure was
noted in a decision. The Class contends that the Agency should not profit from its “misleading
arithmetic error,” the Agency has not denied that it made the error, the Class promptly sought
correction of the error by bringing it to the Agency’s attention within 30 days of the Commission’s
2014 decision, and the Class brought the matter before the AJ. As such, the Class maintains that
the “Commission should simply revise the dollar figure included in its 2014 decision in [EEOC
Request No. 0520130561] to properly reflect the accurate lodestar: $983,655.75.”

In its reply, the Agency contends that the Class’s request for another review of the AJ’s January
2012 attorney’s fees award is an impermissible attempt for additional review of that award. The
Agency argues that the Class failed to timely appeal or request reconsideration of the AJ’s award,
or after the Commission affirmed it on appeal, and therefore, the Commission should now deny
the Class’s request at this juncture.

ANALYSIS AND FINDINGS

In this case, the Class is appealing only our previous affirmation of attorney’s fees ordered by the
AJ for services incurred from the inception of the case until December 31, 2011. Specifically, in
a decision dated January 12, 2012, the AJ ordered the Agency to pay Class Counsel and former
Class Counsel $883,628.75 in attorney’s fees, which we affirmed in EEOC Request No.
0520130561 on August 12, 2014. The Class argues that the Commission should now correct the
AJ’s 2012 decision on attorney’s fees incurred through 2011 nunc pro tunc because we have
previously reopened matters and granted petitions for clarification when clerical errors occurred,
or an erroneous dollar figure was noted in a decision.

Upon review, we note that, while the Commission inherently has the authority to reopen any matter
within our jurisdiction, it is within our discretion to do so, and only in rare and extraordinary cases
do we do so. In this case, we find that the Class was granted ample opportunity to challenge the
AJ’s 2012 attorney’s fees award by appealing the AJ’s decision at that time, or by requesting
reconsideration of EEOC Appeal No. 0120122033 in 2013. As noted by the AJ and our decision
in EEOC Request No. 0520180353, the Class failed to timely appeal or request reconsideration of
our previous determinations on this matter.

2 We note that the Class apparently abandons a previous argument that Class Counsel and former
Class Counsel should be paid at 2018 Laffey rates instead of 2014 rates.
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Seven to eight years after the Class could have properly raised this matter with the Commission,
the Class cannot now belatedly resurrect this matter that has already been adjudicated with finality
by the Commission. We note that EEOC regulations provide that Commission appellate decisions
are final “unless a timely request for reconsideration is timely filed by a party to the case.” 29
C.F.R. § 1614.405(c). Therefore, we DENY the Class’s Motion for a nunc pro tunc decision on
this matter.3

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Class 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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Class’s request may be submitted via
regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE,
Washington, DC 20507. 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 agency’s request must be submitted in digital format
via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request
or opposition must also include proof of service on the other party.

3 We note that while our decision in EEOC Request No. 0520180353 generally provided the class
with the right to appeal the AJ’s March 19, 2018, orders, these appeal rights corresponded to
several other matters addressed by the AJ for the first time. The Commission did not intend to
invite the class to resurrect matters already resolved in 2013 and 2014 by our decisions in EEOC
Appeal No. 0120122033 and EEOC Request No. 0520130561.
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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).
CLASS’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 (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. 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 Class’s Right to File a Civil Action for the
specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 4, 2019
Date