Antony Z.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 29, 2016

0720140007 (E.E.O.C. Jan. 29, 2016)

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

Antony Z.,1
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0720140007

Hearing No. 531-2013-00129X

DECISION

The Agency simultaneously issued a final order and filed an appeal with this Commission
regarding the class’ entitlement to attorney’s fees. For the following reasons the Commission
REVERSES the Agency’s final order.

BACKGROUND

In 1998, the Commission certified a class of African-American males employed at the
Agency’s headquarters office, who, on or after June 23, 1995, were not selected or promoted,
or who were otherwise subjected to disparate treatment in regard to performance appraisals,
awards, bonuses, and disciplinary actions. EEOC Appeal Nos. 01975435, 01975436,
01975437, request for recon. denied, EEOC Request No. 05981075, 05981076, 05981077
(January 22, 1999). After discovery, the case was expanded to include those who worked at
Headquarters on or after January 1987. The class was comprised of approximately 2,200
individuals.

On January 11, 2002, the parties entered into a settlement agreement, and on June 11, 2002,
the Equal Employment Opportunity Commission Administrative Judge (AJ) assigned to the
case found that the agreement was fair, adequate, and reasonable to the class as a whole.

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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The settlement agreement provided, in pertinent part, that:

I. Definitions

D. Class Member(s), Class

As defined by the Administrative Judge, the Class consists of all African
American males employed at [Agency's] Headquarters Office in Baltimore,
Maryland, who, on or after January 1, 1987, were not selected or promoted, or
were otherwise subjected to disparate treatment in regard to performance
appraisals, awards and bonuses, and disciplinary action.

II. Scope of the Settlement Agreement

C. The Administrative Judge shall retain jurisdiction over this matter for a period
of 4 years after the Effective Date of the Settlement Agreement for purposes of
monitoring and ensuring compliance with the Settlement Agreement.

III. Non-Monetary Relief

A. The parties will establish an Oversight Committee comprised of seven members. …
The Oversight Committee shall remain in existence during the 4 years that the
Administrative Judge retains jurisdiction over this complaint. . . . The duties of the
Oversight Committee will be to provide oversight and monitoring of the
implementation of this Settlement Agreement. In carrying out its duties, the
Oversight Committee may, among other things, review data provided by the
Agency to monitor trends in the Agency's personnel policies and practices.

….

D. The Agency agrees that its policies and practices for granting performance
awards and Quality Step Increases will be fair and equitable and are consistent
with merit principles. The Agency agrees that it will correct any misapplications
of its policies for granting performance awards and Quality Step Increases to
ensure fair and equitable distribution of such awards, consistent with merit
principles. At the Agency's discretion, an expert may be retained to
recommend ways to assess these policies and practices and to ensure compliance
with relevant statutes, regulations, EEO principles, and applicable collective
bargaining agreements in the Agency's award process. Any corrections the
Agency implements will be made after providing a 30-day notice and comment
period to the Oversight Committee. The Agency will provide a report to the
Administrative Judge within 6 months of the Effective Date of this agreement of
the actions it has taken to comply with this paragraph. The Agency may submit
a supplemental report every 6 months, as needed.
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….
H. The Agency will collect data and compile such reports as the Oversight
Committee might reasonably require to fulfill its role of monitoring the
Agency's compliance with the Settlement Agreement. These reports will
include, but not necessarily be limited to, the following:
….

2. quarterly reports of monetary awards, including Quality Step Increases,
given to [Agency] Headquarters employees, broken down by component
and the demographic characteristics of the employees receiving such
awards.

I. The Oversight Committee may request the services of an expert to analyze or
interpret the data or reports. To the extent possible, the Agency will provide in-
house statistical and economical analyses for this purpose. The Administrative
Judge may direct the Agency to retain an expert or experts in the event the
Agency is unable to provide the required expert analysis or does not do so
within a reasonable time. The Agency will appoint and pay for the expert.
Generally, the Agency will have the discretion to appoint an expert of its choice.
Any dispute concerning the selection of the expert will be submitted to the
Administrative Judge for resolution.

IV. Monetary Relief

A. The Agency will pay to the Class the total sum of six million, three hundred and
fifty thousand dollars ($6,350,000), in full, complete and final satisfaction of all
claims, including interest, arising out of the Class Agents’ allegations of
discrimination in employment practices as described in the Settlement Agreement,
but excluding attorney fees, expenses and costs.

B. Class Counsel has devised a formula for distributing the proceeds of this settlement.
Six million, three hundred and fifty thousand dollars ($6,350,000) will be paid by
the Agency in accordance with the Formula attached as Appendix A.2

V. Compliance

Either party may bring an application before the Administrative Judge if it believes that
the other party has not complied with its or their obligations under the Settlement
Agreement pursuant to 29 C.F.R. § 1614.504. As contemplated in the regulatory
section cited above, prior to bringing any non-compliance matter to the Administrative

2 The Formula for Distribution of the settlement funds shows $2,300,000 will be paid to class
members for awards and Quality Step Increases.
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Judge, the complaining party must notify the other party and meet and confer in a good
faith effort to resolve the conflict. The Agency shall be responsible for payment of any
attorney's fees and expenses, as proven by current documentation, incurred by Class
Counsel in the event the Administrative Judge concludes that the Agency has failed to
comply with the terms of the Settlement Agreement.

On June 9, 2006, the class filed a Motion for Enforcement, alleging that the Agency failed to
provide a complete statistical analysis, as provided in III(I). Moreover, the class alleged that
the Agency had delayed in designating an expert, delayed in providing an analysis, and failed
to provide corrective action in response to the statistically significant problems which were
revealed by the expert. The class also maintained that the Agency had not provided a written
report analyzing the expert's findings, and asked that the Agency be ordered to complete the
analysis within ten days.

Ultimately the class filed an appeal with the Commission on March 6, 2008, regarding their
claim that the Agency failed to comply with the terms of the class settlement agreement. The
appeal was the subject of the prior appellate decision in EEOC Appeal Nos. 0120081816,
0120081817, 0120081818 (April 28, 2011).

In our prior decision, the Commission found that the Class’ Motion for Enforcement was
timely raised with the AJ and that the class also timely brought its concerns to the attention of
the Agency. The Commission also found that the Agency substantially complied with the
provisions which required it to provide statistical and economic analyses, and even if there
were some unintentional delay, there was no indication of bad faith.

However, the Commission noted that a July 2006 analysis found African-American males
employed at the Agency’s Headquarters in Baltimore, Maryland from April 1, 2003, to
September 30, 2005, were underrepresented as compared with their peers with respect to
honor awards, monetary awards, and Quality Step Increases. The Commission stated the
Agency had not challenged the results of the report, nor did it provide any purported
explanation for the statistically significant findings. Accordingly, the Commission found that
the Agency failed to ensure that its policies and practices for granting performance awards and
QSIs were fair and equitable between April 1, 2003, and September 30, 2005.

Additionally, the Commission found the Agency failed to comply with the term that required it
to “correct any misapplication of its policies for granting performance awards and Quality Step
Increases to ensure fair and equitable distribution of such awards, consistent with merit
principles.” Specifically, the Commission stated that despite the Commissioner's September 8,
2006 response describing actions which would be taken, there is no evidence these new
procedures, which would supposedly correct the misapplication of its performance awards and
QSIs which resulted in the underrepresentation of African American males from April 1, 2003
- September 30, 2005, were actually ever implemented. Accordingly, the Commission found
the Agency breached provision III(D) of the Settlement Agreement, and found the class was
entitled to specific enforcement of the class settlement agreement.
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Accordingly, the Commission found that all African-American males working for the Agency's
Headquarters in Baltimore, Maryland from April 1, 2003 through September 30, 2005, were
presumptively entitled to the average honor award, monetary award, and QSI received during
the relevant time. The Commission noted that the Agency could rebut the presumption by
clear and convincing evidence that the employee was not entitled to relief. The Commission
remanded the matter to an EEOC AJ to oversee the processing of that relief. The Commission
ordered that when processing the relief, the AJ should determine the total amount of honor
awards, monetary awards, and QSI's awarded to all employees working at the Agency's
Headquarters Office in Baltimore, Maryland from April 1, 2003 through September 30, 2005.
The Commission directed that total amount should then be divided by the total number of
employees who received awards during the relevant time frame, to determine the average
honor, monetary, and QSI awarded. The Commission stated that the resulting amount should
then be awarded to each African-American male who worked for the Agency's Headquarters
office in Baltimore, Maryland from April 1, 2003 through September 30, 2005, unless the
Agency showed by clear and convincing evidence that an employee was not entitled to such
relief. Finally, the Agency was ordered to provide evidence that it had taken these actions.

In addition to this relief, the Commission stated the class was entitled to an award of
reasonable attorney’s fees incurred in the processing of the breach claim. The Commission
ordered the Agency to process the class’ attorney’s fees claim in accordance with 29 C.F.R.
§ 1614.501.

The Agency filed a request for reconsideration of the Commission’s decision. In EEOC
Request Nos. 0520110501, 0520110502, 0520110499 (December 18, 2012), the Commission
denied the Agency’s request for reconsideration and the Commission’s decision in EEOC
Appeal Nos. 0120081816, 0120081817, 0120081818 became final.

Thereafter, on January 17, 2013, the class submitted a Request for Payment of Attorney’s Fees
to the Agency, which sought payment for the work of the class’ attorneys litigating the breach
action from May 30, 2006, to January 17, 2013. On February 19, 2013, the class submitted a
supplemental request that covered the period of January 18, 2013, through February 19, 2013.
On March 7, 2013, the Agency sent a letter and indicated that it would be incorporating the
supplemental request into the January 17, 2013 request, and that it would be issuing a final
decision on the class’ fee request by April 17, 2013.

An EEOC AJ was assigned to handle the remand proceedings. On March 20, 2013, the AJ
issued an Order setting forth policies and procedures for the ongoing compliance action. In his
Order, the AJ determined “[t]he Class is entitled to have all appropriate costs, fees and
expenses for this compliance proceeding paid by the Agency.” The AJ stated that “[n]o later
than 45 days after the issuance of this Order, and quarterly thereafter, the Class must submit to
the Agency a request for payment of costs, fees and expenses.” The Order stated the Agency
had 30 days to pay the class the amount it did not dispute and to submit its objections to the AJ
for any amount it disputed.
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On April 15, 2013, the class submitted its First Quarterly Fee Petition. The class sought
payment of fees and costs for the period of January 18 – March 30, 2013.

On April 17, 2013, the Agency issued a final decision addressing the fees requested for work
performed by the class’ attorneys from May 2006 through February 19, 2013. The Agency
awarded the class $101,073.66 in attorney’s fees and $1,103.99 in costs. The class did not
appeal the Agency’s final decision to the Commission.

On May 15, 2013, the Agency filed its Response to Class’s First Quarterly Fee Request. The
Agency noted the class request dealt with two distinct periods, January 18 – February 19, 2013
and February 25 – March 31, 2013. The Agency noted that the class previously submitted its
fee request for the period of January 18 – February 19. The Agency stated it already
addressed the request for fees for the January 18 – February 19 period in a decision issued on
April 17, 2013.

With regard to the request for fees after February 19, 2013, the Agency stated that neither the
Commission’s decision nor the settlement agreement contemplated that the class would be
entitled to fees for remand proceedings. The Agency also argued that the determination of
“prevailing party” status cannot take place until this matter has fully concluded. The Agency
also noted that it submitted a request for an opinion from the Department of Justice’s (DOJ)
Office of Legal Counsel (OLC) on the legality of these proceedings. The Agency argued that
the AJ could not issue an award of attorney’s fees until the Agency receives an opinion from
DOJ on the legality of the EEOC Order that initiated the remand proceedings. On May 22,
2013, the class filed a reply to the Agency’s response rejecting the Agency’s contentions. The
Agency replied on May 30, 2013, reiterating its objections to the AJ awarding any attorney’s
fees at that stage of the remand proceedings.

On July 25, 2013, the AJ issued an Order requiring the Agency to pay the class $21,711.50 in
attorney’s fees and $4,550.83 in costs for the period of February 20, 2013, – March 30, 2013.
On August 29, 2013, the Agency issued a final order indicating it would not implement the
AJ’s Order. Along with the final order, the Agency sent a notice of appeal to the Commission.

Current Appeal

On appeal, the Agency argues the AJ’s award of attorney’s fees is in error because there is no
legal authority for the AJ to award attorney’s fees at this time and any determination on fees
must wait until the remand proceedings have been concluded. The Agency notes that to obtain
attorney’s fees a Complainant must be a “prevailing party.” The Agency claims that in the
remand proceedings, the class has not succeeded on any significant issues. The Agency states
that thus far, the bulk of the proceedings have been devoted to the Agency disclosing
information to the class and no award distribution determinations have been made. Thus, the
Agency states that a determination of “prevailing party” status cannot take place until after the
matter has fully concluded.
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The Agency argues that it never disputed the class would be entitled to fees for the breach
litigation. The Agency acknowledges that the class was due attorney’s fees for work
performed from May 30, 2006, to February 19, 2013, before the remand proceedings began in
earnest with the March 7, 2013 status conference. The Agency notes that on June 25, 2013, it
paid attorney’s fees in the amount of $102,177.65 for work on the breach action through
February 19, 2013. The Agency argues that instead of focusing on the Agency’s compliance
with the terms of the settlement agreement, the present action focuses on whom, if anyone,
should receive the “average award” ordered by the Commission and what amount should be
distributed.

Alternatively, the Agency states that even if the class is considered a prevailing party at this
time, any determination on fees should wait until the remand proceedings conclude. The
Agency claims that assuming the class is a prevailing party in the remand proceeding only
establishes eligibility for fees, but does not establish what a reasonable fee should be, which
the Agency states must take into account the class’s overall success in the proceedings. The
Agency argues the class’ overall success will not be known until each of the class member’s
entitlement to the average award is decided.

In response to the Agency’s brief, the class notes that the settlement agreement provides, “[t]he
Agency shall be responsible for payment of any attorney’s fees and expenses, as proven by
current documentation, incurred by Class Counsel in the event the Administrative Judge
concludes that the Agency has failed to comply with the terms of the Settlement Agreement.”
The class states that the Agency’s position that fees and costs are not available in the post-
remand proceedings is inconsistent with the language of the agreement.

The class also notes that in its April 2013 final decision, the Agency awarded fees to the class
for the post-remand work performed on January 18, 2013 to February 19, 2013. The class
states the Agency’s current position that fees and costs are not available in the post-remand
proceedings is inconsistent with its prior final decision.

The class also argues that no additional “prevailing party” finding is necessary. The class
notes that the Commission has the authority to remand the compliance proceedings for
oversight by an Administrative Judge. The class states that as this is a class action, the class
must be represented by counsel in the remand proceedings to obtain the relief ordered by OFO,
and the Agency is required to pay the cost of the fees incurred. The class states this is a
compliance proceeding; not a merits matter.

In a November 14, 2014 letter, the Agency informed the Commission that on March 28, 2013,
the Agency asked the Department of Justice's Office of Legal Counsel (OLC) for an opinion
on whether the Commission could legally order the Agency to pay a monetary award for
breach of the provision of the settlement agreement at issue. The Agency stated that in an
opinion dated August 13, 2014, OLC agreed with the Agency’s position and found that the
Commission had no legal authority to order the Agency to provide monetary relief to class
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members for breach of section III(D) of the settlement agreement. The Agency provided a
copy of the OLC opinion. The Agency stated that in light of the OLC opinion, the Agency
could not pay the monetary relief ordered by the Commission in this case, and in turn, could
not pay the class attorney’s fees and costs for their work on the remand proceeding.

In response, the class argued that the DOJ opinion did not change the fact that the Commission
issued a final and binding decision on this matter. The class stated the OLC opinion said
nothing about whether the Agency breached the settlement agreement or the class’ entitlement
to continuing attorney’s fees as a result of the breach.

ANALYSIS AND FINDINGS

We note that in EEOC Appeal Nos. 0120081816, 0120081817, 0120081818 (April 28, 2011),
the Commission determined the Agency breached the class settlement agreement. The Agency
filed a request for reconsideration of the Commission’s decision. In EEOC Request Nos.
0520110501, 0520110502, 0520110499 (December 18, 2012), the Commission denied the
Agency’s request for reconsideration and the Commission’s decision in EEOC Appeal Nos.
0120081816, 0120081817, 0120081818 became the Commission’s final decision in this matter.
We find nothing in the DOJ OLC’s August 13, 2014 opinion deprived the Commission of
jurisdiction to enforce a breach of the class settlement agreement. Moreover, we note that
OLC’s opinion does not opine as to whether the Agency breached the settlement agreement or
whether the Agency owes attorney’s fees as a result of the Commission’s finding that the
Agency breached the class settlement agreement. Thus, we find that the DOJ OLC’s opinion
does not preclude the Commission from addressing the class’ entitlement to attorney’s fees
resulting from the Commission’s previous breach finding.

We also reject the Agency’s contention that attorney’s fees cannot be awarded at this time
because it has not been determined that the class is a prevailing party. Rather, we find that the
Commission has already determined that the class is a prevailing party because the
Commission found that the Agency breached the terms of the class settlement agreement when
the Agency failed to comply with the terms of the class settlement agreement which required it
to ensure that its policies and practices for granting performance awards and QSIs were
equitable and fair between April 1, 2003, and September 30, 2005. The Commission had also
found that the Agency failed to comply with the provision of the settlement agreement which
required it to correct the misapplication of its policies for granting performance awards and
Quality Step Increases to ensure fair and equitable distribution of such awards, consistent with
merit principles.

The subject proceedings are required because the Commission directed the AJ to oversee the
remand of the breach claim in order to grant the class relief determined as a result of the
finding of breach of the settlement agreement. As we find the class is a prevailing party as a
result of the breach finding, we determine that the class is entitled to attorney’s fees and costs.

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Additionally, we note that Section V of the settlement agreement, in relevant part stated:

The Agency shall be responsible for payment of any attorney’s fees and expenses, as
proven by current documentation, incurred by Class Counsel in the event the
Administrative Judge concludes that the Agency has failed to comply with the terms of
the Settlement Agreement.

The Commission determined that the Agency breached the agreement and ordered these
proceedings to remedy the breach. These proceedings are not, as the Agency argues, “a
separate action” distinct from “pursuing a claim of breach”, but rather are part and parcel of
the breach action. The monitoring of the compliance proceedings is necessitated solely by the
Agency’s breach of the settlement agreement. Thus, the Agency is responsible under the
agreement for “any attorney’s fees and expenses” incurred in these proceedings apart from any
prevailing party determination.

Next, we address the merits of the Class’ First Quarterly Fee Request. On July 25, 2013, the
AJ issued an Order requiring the Agency to pay the class $21,711.50 in attorney’s fees and
$4,550.83 in costs for the period of February 20, 2013 – March 30, 2013. On appeal, the
Agency does not challenge the number of hours, the hourly rate, or any of the specific costs or
fees requested by the class. Upon review, we find the AJ’s award of $21,711.50 in attorney’s
fees and $4,550.83 was appropriate.3

CONCLUSION

Accordingly, the Agency’s final order is REVERSED and the matter is REMANDED for
further action in accordance with the Order herein.

ORDER

Within 30 days of the date this decision becomes final, the Agency will pay the class for
reasonable attorney's fees in the amount of $21,711.50 and $4,550.83 in costs.

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.

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

3 Currently there are no other Quarterly Fee Requests on appeal at the Office of Federal
Operations stemming from the breach of settlement at issue in this case. Thus, we find at this
time there is no undue burden on the administrative process.
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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 (M0815)

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 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, 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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. 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 filed your
appeal with the Commission. 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. 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 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

January 29, 2016
Date