0120132943
02-10-2015
Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.
Appeal No. 0120132943
Hearing No. 443-2010-00152X
Agency No. BIA-10-0318
DISMISSAL OF APPEAL
On August 1, 2013, Don G. Bruce, Complainant's former attorney (hereinafter referred to as "Attorney"), filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) contesting the Agency's decision to pay attorney's fees provided for in a settlement agreement directly to Complainant rather than to Attorney.
The record shows that Complainant, a School Janitor at the Bureau of Indian Education's Turtle Mountain Community School, filed an equal employment opportunity (EEO) complaint alleging employment discrimination on the bases of disability, age and retaliation for events which occurred in 2010. The Agency investigated the complaint and Complainant requested a hearing before an EEOC administrative judge. The record shows that Complainant was represented by Attorney at the start of the hearing process.
Prior to the hearing, the parties negotiated a settlement agreement. It appears that at some point during the negotiations, Attorney no longer served as Complainant's representative. The record contains a settlement agreement executed by Complainant, without a legal representative, on March 22, 2011. On April 5, 2011, the administrative judge issued an Order of Dismissal, dismissing the complaint, pursuant to the terms of the settlement agreement.
The settlement agreement provided, in pertinent part, the following provision:
5. The Agency agrees to compensate Complainant for reasonable attorney fees incurred in this matter, not to exceed $4,867.50. The Agency will make payment to Complainant with the provision by Complainant of a receipt for payment of attorneys fees in this matter. Any fees incurred above the amount provided ($4,867.50) will not be paid by the Agency.
Attorney now claims that he is entitled for fees above the $4,867.50 agreed to by Complainant, and that the Agency should pay the attorney's fees directly to him and not to Complainant. Attorney represents that he contacted Complainant, who he asserts told him that any money he received from the Agency was his to keep and would not be forwarded to Attorney. Attorney requests that the Commission reform the settlement agreement to provide him with $10,000 in attorney's fees, and pay the fees directly to him.
EEOC Regulation 29 C.F.R. � 1614.401 describes the type of appeals accepted by this Commission. The instant matter does not fall within those appeals. First, as Attorney is no longer Complainant's legal representative, he has no standing to file an appeal under the 29 C.F.R. Part 1614 scheme. In fact, there is no evidence that Attorney even served Complainant with a copy of his appeal. Complainant, as evidenced by his signature, agreed to the terms of the 2011 settlement agreement, and has not challenged those terms or raised a claim of non-compliance by the Agency. Only Complainant, or his duly authorized representative (which Attorney is not), has standing to challenge the terms of, and compliance with, the 2011 settlement agreement.
Accordingly, the appeal filed by Attorney is hereby DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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).
COMPLAINANT'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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
_____________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 10, 2015
__________________
Date
2
0120113027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120132943