Alene S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Nov 13, 2018

0520180531 (E.E.O.C. Nov. 13, 2018)

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

Alene S.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Request No. 0520180531

Appeal No. 0120162732

Agency No. 4E800008912

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120162732 (June 21, 2018). EEOC
regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting
party demonstrates 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. See 29 C.F.R. § 1614.405(c).

The previous appeal concerned whether Complainant was entitled to attorney’s fees and costs for
defending against the Agency’s appeal in EEOC Appeal No. 0720150038 (April 6, 2016).
Previously, an EEOC Administrative Judge (AJ) found that Complainant was subjected to
discrimination and retaliation. As part of a remedial award, the AJ ordered the Agency to pay
Complainant $300.000 in compensatory damages, $81,225.80 in attorney’s fees, and $4,665.78
in legal costs. The Agency accepted the AJ’s findings of discrimination, but rejected the AJ’s
decision with respect to compensatory damages and filed its appeal.

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.
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In Appeal No. 0720150038, we recognized the AJ found discrimination in this matter and
determined that an award to Complainant of $200,000 in compensatory damages “more
appropriately recognizes the existence of preexisting conditions, but compensates Complainant
for the additional and serious aggravation of those conditions caused by the discrimination.” The
decision also affirmed the AJ’s award of $81,255.80 in attorney’s fees and $4,665.78 in costs.
Finally, the decision contained an order indicating that Complainant was entitled to submit a
request for additional attorney’s fees for legal work performed on the appeal.

On May 6, 2016, Complainant’s attorney submitted a verified petition to the Agency for
$19,021.95 in fees and $282.77 in costs incurred during the appeal stage of Appeal No.
0720150038. When the Agency failed to adjudicate this petition, Complainant appealed,
resulting in the decision in EEOC Appeal No. 0120162732, the subject of the instant request for
reconsideration.

In EEOC Appeal No. 0120162732, the decision adopted the Agency’s argument that
Complainant was not the prevailing party in Appeal No. 0720150038, because the amount of
compensatory damages awarded was lower than the award originally set by the AJ. Therefore,
the decision affirmed the Agency’s position that Complainant was entitled to no award for the
legal work performed on Appeal No. 0720150038.

After careful reconsideration of this issue, we conclude that the prior decision was based on an
erroneous interpretation of law. Under the circumstances presented here, we now conclude that
Complainant was a prevailing party in Appeal No. 0720150038, and thus entitled to an award of
reasonable attorney’s fees and costs for legal work related to that appeal.

The Supreme Court in Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health
and Human Resources, 532 U.S. 598 at 603 (2001), clearly defined a prevailing party “as one
who has been awarded some relief by the court”. In Buckhannon, the Court went on to indicate
that “even an award of nominal damages suffices” to indicate prevailing party status. Id. at 604.
Here, far from a nominal amount, Complainant was awarded $200,000 in compensatory damages
by the Commission in Appeal No. 0720150038, significant relief following the finding of
discrimination. Simply because this amount was less than the amount originally awarded by the
AJ does not mean Complainant was not a prevailing party. In Appeal No. 0720150038,
Complainant, with the assistance of her attorney, successfully defended her entitlement to a very
significant award of compensatory damages following a finding of discrimination.2

After reviewing the previous decision and the entire record, the Commission grants
Complainant’s request to reconsider its decision in EEOC Appeal No. 0120162732 (June 21,
2018), and directs the Agency to comply with the following Order. There is no further right of
administrative appeal on the decision of the Commission on this request.
ORDER

2 While not dispositive, we note that the Agency, when it rejected the AJ’s compensatory
damages award, did not argue for a particular alternative amount.
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Within sixty (60) calendar days of the date this decision is issued, the Agency shall pay
Complainant $19,021.95 in attorney’s fees and $282.77 in legal costs incurred during the appeal
stage of EEOC Appeal No. 0720150038.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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.

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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:

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

November 13, 2018
Date