Donna Davis, Complainant,v.Rodney E. Slater, Secretary, U.S. Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionFeb 14, 2000
01970199 (E.E.O.C. Feb. 14, 2000)

01970199

02-14-2000

Donna Davis, Complainant, v. Rodney E. Slater, Secretary, U.S. Department of Transportation (Federal Aviation Administration), Agency.


Donna Davis v. U.S. Department of Transportation

01971633

February 14, 2000

Donna Davis, )

Complainant, )

) Appeal No. 01971633

v. ) 01970199

) Agency No. 5-95-218

Rodney E. Slater, )

Secretary, )

U.S. Department of Transportation )

(Federal Aviation Administration), )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final agency decision concerning her request

for attorney's fees. The appeal is accepted in accordance with EEOC

Order No. 960.001.<1>

Pursuant to Fed. Reg. 37,644, 37,661 (July 12, 1999)(to be codified

and hereinafter referred to as 29 C.F.R. � 1614.606)), the Commission

consolidated EEOC Appeal No. 01970199 and EEOC Appeal No. 01971633.

For the following reasons, the Commission MODIFIES and REMANDS the

agency's final decision.

ISSUE PRESENTED

Whether the agency properly denied complainant's request for attorney's

fees.

BACKGROUND

On December 15, 1994, complainant filed a complaint alleging that the

agency discriminated against her on the bases of race (African-American),

color (Black), and reprisal (prior EEO activity). On June 4, 1995,

the agency accepted the following two claims of discrimination:

1. Whether complainant was denied accelerated promotion to GS-9,

because of her race (Black), color (Black), and in reprisal for prior

EEO activity;

2. Whether complainant was denied overtime on September 16, 1994,

because of her race (Black), color (Black) and in reprisal for previous

EEO activity.

According to complainant's attorney, complainant objected to the manner in

which her complaint was framed. On July 17, 1995, complainant requested

a hearing since it had been over 180 days since the date on which she

filed her complaint.

Complainant's case was referred to an administrative judge (AJ) pursuant

to her request in September 1996. Thereafter, a dispute arose as to the

agency's failure to investigate the complaint. Complainant argued that

the agency should pay the discovery costs, such as depositions, due to its

failure to investigate her complaint. In response to this request, the

AJ determined that although payment of discovery costs was an appropriate

sanction, she would instead remand the case to the agency on January 23,

1996, for an investigation to be completed in thirty days. However,

the AJ permitted complainant to depose certain relevant witnesses,

being mindful that she may ultimately bear the burden of the cost for

the depositions.

Apparently, the agency timely completed its investigation pursuant to the

AJ's order. On May 6 and May 7, 1996, the AJ held a hearing at which

19 witnesses testified. On July 8, 1996, the AJ issued a recommended

decision. Therein, she defined complainant's complaint as follows:

Did the agency discriminate against the complainant on the bases of

her race (African-American), and/or color and/or reprisal when: (i) her

evaluation for the period ending March 31, 1994, was lowered; (ii) she was

denied overtime on or about September 16, 1994; (iii) she was not selected

for an assignment to the Drug and Alcohol Unit (DUI Unit) in October 1994;

(iv) a comparative (Caucasian) was preselected for a computer specialist

analyst position; (v) she was denied an accelerated promotion to a GS-7/9;

and (vi) she was subjected to a hostile work environment.

In her analysis of complainant's hostile work environment claim, the AJ

listed the following evidence which complainant presented in support of

her harassment claim:

(i) co-worker A threw a pen at her; (ii) co-worker A told her that her

performance appraisal for the period ending March 31, 1994, would be sent

to the Personnel Office with a notation that the complainant would not

sign the form; (iii) co-worker B made a statement to the effect that as a

Legal Instruments Examiner she would have to sit next to the complainant

for the next 15-20 years; (iv) during March of 1994, co-worker C commented

that he would not training any G-d damn N---ers in the DUI unit; (v)

During September of 1994, co-worker A referred to the complainant as,

"one of them now"; (vi) during October 1994, a co-worker was told by

another co-worker to "watch what you say or you will be sitting back

in a corner by yourself; (vii) during October 1994, the complainant was

required to submit a SF-171 prior to being promoted to Legal Instruments

Examiner grade GS-7; (viii) co-worker A repeatedly denied complainant

training that would have increased her promotion potential.

In her decision, the AJ found complainant was discriminated against

when she was denied an assignment to the DUI unit in October 1994, and

when she was subjected to a hostile work environment. In support of

complainant's hostile work environment claim, the AJ found complainant

established a prima facie case of hostile work environment only with

respect to the statements made by co-worker C. The AJ also found that

co-worker C made the statements with sufficient frequency such that

management should have known of the statements.

With respect to her remaining claims, the AJ found complainant failed

to raise an inference of discrimination. Also, the agency proffered

legitimate, nondiscriminatory reasons which complainant failed to prove

were a pretext for discrimination.

As a remedy, the AJ ordered that complainant be provided the opportunity

to work in the DUI unit. The agency was ordered to undertake an

investigation into co-worker C's conduct, and take disciplinary action

if appropriate.<2> Also, the AJ found complainant proved entitlement to

compensatory damages, and ordered the agency to compensate complainant

for her emotional harm, and medical expenses. Further, the agency was

ordered to pay all back pay related to sick leave, post a notice, and

pay all reasonable attorney's fees.

On September 3, 1996, the agency issued a final decision adopting the

AJ's decision, but modifying the recommended remedy. Specifically, the

agency stated complainant should submit objective evidence supporting

her claim of compensatory damages, and directed complainant's attorney

to submit a fee petition.

On October 7, 1996, complainant, through her attorney, submitted

correspondence to this office in an attempt to initiate an appeal,

which was docketed as EEOC Appeal No. 01970199. In that correspondence,

complainant's attorney stated he wrote the Commission, "solely to clarify

whether the agency's modification to the AJ's order is in lieu of, rather

than in addition to the remedies directed in the recommended decision."

On November 20, 1996, the agency filed a motion to dismiss EEOC Appeal

No. 01970199, stating that the remedies set forth in the final decision

were in addition to the AJ's recommended decision. On December 12,

1996, complainant's attorney wrote the Commission and stated that the

agency's representation resolved the issue in EEOC Appeal No. 01970199.

Meanwhile, on October 10, 1999, complainant's attorney filed a fee

petition with the agency. Therein, he requested $63, 154.14 in attorney's

fees and costs. He submitted an affidavit detailing his experience,

and claimed an hourly rate of $175 for himself, $75 for his law clerk,

and $40 for his legal assistant. The attorney also attached an itemized

list of the hours and expenses spent on the case.

On or about November 8, 1996, the agency issued a final decision on

the fee petition. The agency determined that the amount requested

constituted excessive billing, lacked sufficient documentation,

and were unauthorized. The agency also determined that fees for

the unrelated non-prevailing claims must be reduced. Specifically,

the agency determined that complainant was successful only on 2 out of

her 13 claims of discrimination, and the fees should be reduced by 2/13

(.153). The agency determined, therefore, that the attorney was entitled

to $6, 447.56 in fees and costs. This appeal followed. Thereafter,

we consolidated EEOC Appeal No. 01970199 with EEOC Appeal No. 01971633.

ANALYSIS AND FINDINGS

By Federal regulation, an agency must award attorney's fees, in accordance

with existing case law and regulatory standards, for the successful

processing of an EEO complaint. 64 Fed. Reg. 37, 644, 37, 659 (1999)(to

be codified and hereinafter referred to as 29 C.F.R. � 1614.501(e). The

fee awarded is normally determined by multiplying the number of

hours reasonably expended on the case by a reasonable hourly rate.

Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424

(1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B). The attorney requesting

the fee award has the burden of proving, by specific evidence, his or

her entitlement to the requested amount of attorney's fees and costs in

the matter. Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1983).

FEES

Reasonable Hourly Rate

We note there is no dispute as to the attorney's hourly rate of $175

per hour. Rather, the agency argues that the law clerk's hourly rate of

$75 per hour is excessive. The agency contends that the average hourly

rate for a law clerk is roughly $40-45 per hour. We disagree. The agency

failed to provide any support for its position that a reasonable hourly

rate for a law clerk in the area is $40-$45 per hour. Also, we note that

this law clerk was not a law student, but rather, had graduated from

law school, attained her J.D. Degree and was an applicant to the Bar.

The attorney provided documentation in support of this hourly rate,

which we deem to be reasonable.

Reasonable Hours Expended

An applicant for attorney's fees is entitled only to an award for time

reasonably expended. It does not follow that the amount of time actually

expended is the amount of time reasonably expended. Consequently, fees

may not be awarded where time was spent on unsuccessful claims, where

an attorney engaged in nonproductive work, or where extraneous time

was billed because a case was overstaffed. Veteran's Education Project

v. Secretary of the Air Force, 515 F. Supp. 993, aff'd mem., 679 F.2d 263

(D.C. Cir. 1982). Applicants preparing an attorney's fees petition must

use their professional "billing judgment" in arriving at the lodestar

figure and must be prepared to document their claim with "contemporaneous,

complete, and standardized time records which accurately reflect the work

done... ." National Ass'n of Concerned Veterans v. Secretary of Defense,

675 F.2d 1319 (D.C. Cir. 1982) (per curiam). The burden of justifying

any deviation from a fee calculation of reasonable hours times reasonable

hourly rate rests on the party proposing the deviation.

In the agency's FAD, the agency disallowed a total of $20, 699.75 of the

attorney's requested $55,435.25 in fees, and disallowed $432.22 in of

the attorney's requested $7, 837.64 in costs. Then, the agency further

reduced the amount to represent those claims for which complainant did

not prevail. We will first examine the fees disallowed by the agency,

and then examine the costs.

Law Clerk's Disallowed Hours

The agency disallowed 4.9 hours for services rendered by the law clerk

pending clarification of the services performed. The services listed

included requests for interrogatories, and phone calls to the agency.

After a careful review of the attorney's lengthy brief on appeal, we

find no clarification of these hours. In the absence of sufficient

documentation, we agree with the agency that 4.9 hours at $75 per hour

should be disallowed.

The agency then disallowed 8.9 hours for work completed by the law clerk

with respect to witnesses. Specifically, the agency disallowed 5 hours

on 12/6/95 for failure to identify the name of the witness and .50 hours

when a witness failed to appear for a deposition on 1/30/96. Also,

the agency disallowed 3.4 hours total for time spent on the following

dates, as the work performed did not relate to issues involved in the

present complaint: 2/24/96, 3/4/96, 3/4/96, and 3/8/96. Although the

attorney argues the witness interview charge on 12/6/95 was properly

billed, he failed to name the witness interviewed. Both the Commission

and complainant's attorney agree with the remaining deductions, and

therefore we disallow 8.9 hours at $75 per hour.

The agency then disallowed .90 hours of work performed by the law clerk

related to her attempts to amend the complaint. The agency maintained

the attorney could not claim attorney fees for an amendment that never

took place. Also, the agency disallowed .30 hours for time spent on bill

collection matters related to the non-payment of the deposition bill.

The attorney agrees with both of these deductions, and as such, 1.2

hours at $75 per hour are disallowed.

The agency disallowed an additional 26.5 hours of the law clerks hours.

Specifically, the agency found that her discovery work on 12/9/96 and

attendance at the EEO hearing on May 6, 1996, and June 14, 1996, was

excessive, redundant, or otherwise unnecessary. We agree with the agency

that 6.5 hours spent on drafting a notice to depose 39 witnesses was

excessive and was properly disallowed. We also agree with the agency

that the law clerk's attendance at the hearing was redundant, given

the attorney's presence at the hearing. The Commission has previously

disallowed fees for the services of a second attorney as being redundant.

See Woloszyk v. Department of the Army, EEOC Request No. 05900905 (January

3, 1991). Although complainant's attorney claims on appeal that the law

clerk presented several witnesses, we are unable to discern such from

his fee petition. As such, we are unable to agree with complainant's

attorney that there was no duplication of work performed by the law clerk

at the EEO hearing. Therefore, we agree with the agency's disallowance

of 26.5 hours at $75 per hour for work performed by the law clerk.

Law Clerk's Work on Depositions

The agency then disallowed 19.7 hours of work performed by the law

clerk related to depositions taken during discovery ordered by the

administrative judge. The agency stated in its decision that the hours

were disallowed since the services "appear to be outside the scope

of the legal services that can be rendered by and/or billed for a law

clerk under the laws of the State of Oklahoma." Specifically, the agency

disallowed 6.5 hours on 1/16/96; 5 hours on 1/17/96; 4 hours on 1/25/96,

and 4.2 hours on 1/29/96. A review of the fee petition reveals that the

hours claimed were for preparation of depositions, travel to and from the

depositions, the taking of the depositions, and settlement discussions.

Pursuant to Sections 706(k) and 717(d) of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. 2000e-5(k) and 2000e-16(d),

a prevailing federal employee is entitled to an award for reasonable

attorney's fees incurred in the successful prosecution of a Title VII

claim. The law also allows the attorney's fees award to include an

award for services rendered by law clerks, paralegals or law students

if any such person provides professional services under the supervision

of an attorney. See, e.g., 64 Fed. Reg. 37, 644, 37, 660(1999)(to be

codified and hereinafter referred to as 29 C.F.R. � 1614.501(e)(1)(iii));

and Sullivan v. Department of the Treasury, EEOC Appeal No. 01962021 (May

15, 1998). The regulations do not distinguish the properly compensable

services of a law clerk.

In essence, the regulations provide that a prevailing complainant must be

represented by an attorney for an attorney's fee award under Title VII,

and the fee award may include compensation for the time spent by such

non-attorneys and the legal assistants and law clerks who provided any

legal assistance in the matter under the supervision of the attorney.

See, Sullivan, EEOC Appeal No. 01962021. However, where the complainant

is not in fact represented by an attorney, no such fee award can be made

for the services of the non-attorney representative even if the latter

occasionally consulted an attorney in connection with such representation.

Id. Therefore, in this case, had the law clerk provided the service,

not under the supervision of a licensed attorney, then the fees would

not be compensable. Here, however, the complainant was represented

by a licensed attorney, and time was spent by a law clerk under the

supervision of the licensed attorney. The agency has never maintained

that the law clerk actually represented the complainant, or that she was

not properly supervised by the attorney during the services she provided.

The agency cited no authority for their argument that a law clerk may

not conduct a deposition for an EEOC administrative proceeding, such as

this, when supervised by a licensed attorney. Additionally, we are not

persuaded by the agency's position in light of the bargain it received for

the services rendered. Had the attorney conducted the deposition himself,

the agency would have been properly billed at $175 per hour, instead of

the law clerk's rate of $75 per hour. Given the agency's failure to

provide any substantive argument in support of their position, and in

light of the benefit it received, we decline to disallow these hours.

The fees were properly billed to the agency.

Counsel's Disallowed Hours

As referenced above, complainant's attorney initially appealed the

agency's final decision requesting clarification of the decision.

In the final decision related to the instant fee petition, the agency

disallowed 10.5 hours for this work performed by the attorney as it was

unnecessary to the instant complaint. Specifically, the agency found

that the 10.5 hours complainant's attorney spent on the preparation

of the appeal brief for EEOC Appeal No. 01970199,was not necessary to

the complaint. Complainant's attorney agrees with this determination.

As such, 10.5 hours at $175 are properly disallowed.

The agency also disallowed 9.625 hours for various work the attorney

performed on discovery matters related to the case. Specifically, the

agency determined that the work the attorney performed was re-work of the

law clerk's work. Therefore, the agency found this work was duplicative.

The attorney agrees with the agency, and therefore, we find that 9.625

hours at $175 per hour were properly disallowed by the agency.

The agency then disallowed 39.25, or half of the 79.25 hours billed

by the attorney for hearing preparation and attendance at the hearing

as excessive. We disagree with the agency's determination. The fee

petition in the instant case clearly demonstrates that the law clerk

performed the majority of the investigatory functions, including witness

preparation. We therefore find that it was reasonable for the attorney

to spend some time reviewing the issues and evidence in order to prepare

for the hearing. Instead of the agency's determination, we find that the

attorney billed unreasonably for one day, April 27, 1996. Therefore, we

disallow 7.25 of the 19.25 hours billed for that day. Accordingly, 7.25

hours at $175 per hour are properly disallowed for hearing preparation.

With respect to the hearing days themselves, we agree with the agency

that the attorney may have billed excessively, claiming 15 hours of

work per day. However, we do not agree with the agency's determination

as to a reasonable amount of time spent on the hearing. Specifically,

we find that 10.5 hours per day of hearing was properly billed at $175

per hour. This accounts for the lengthy hearing as documented in the

record, as well as meetings both before and after the hearing. We also

permit 1 hour per day travel time at 50% of the attorney's hourly rate.

We have previously held that travel time should be billed at 50% of the

usual hourly rate since little productive effort is accomplished during

this time period. See, Black v. Department of the Army, EEOC Request

No. 05960390 (December 9, 1998); Johnson v. Department of the Army,

EEOC Appeal No. 01933776 (June 2, 1994); Thorburn v. Defense Logistics

Agency, EEOC Appeal No. 01891799 (1989).<3> Therefore, 8 hours total

are disallowed from his request.

COSTS

Finally, the agency disallowed $432.22 of the $7,837.64 in costs requested

by the attorney, as being unsupported by documentation. After a review

of the fee petition, and the attorney's argument on appeal, we disagree

with the agency's rationale for not allowing these expenses.

SUMMARY

To this point, we find complainant's attorney properly billed $46, 132.13

in fees (including the law clerk's services), and $7,837.64 in costs.

However, in the instant case, complainant was successful in proving

discrimination in only two of her six issues before the AJ: (1) when

she was not assigned to the DUI Unit, and (2) when she was subjected to

a hostile work environment. Complainant's attorney argues on appeal

that the agency erred in applying an "across the board reduction" to

the fees in this case since there is a common core of facts or related

legal theories. Therefore, complainant's attorney argues the proper

method of determining his fees is to examine whether the "excellent"

results obtained allows for a basis to award the reasonably expended fees.

We disagree with the attorney's contentions in this regard. Complainant's

claims are varied, and involve multiple individuals. We therefore find no

common core of facts such that the "results obtained" should be examined.

Unfortunately, complainant's attorney has not provided sufficient

information from which we can determine what number of hours were

reasonably expended in furtherance of complainant's successful claims.

Courts and the Commission have recognized that a superior method

to address this situation is to take a percentage across-the-board

reduction of compensable time billed. See, e.g., McKenzie v. Kennickell,

645 F. Supp. 437, 446-51 (D.D.C. 1986); Hatfield v. Dept. of the Navy,

EEOC Appeal No. 01892909 (December 12, 1989). Accordingly, inasmuch as

complainant was successful on only two of her six claims, and the attorney

has not met his burden of identifying the subject matter on which time

was spent by submitting sufficiently documented detailed contemporaneous

time records, the Commission finds that an across-the-board reduction

is warranted in the present case.

Despite the agency's contention to the contrary, we do not find the

instant complaint alleges 13 allegations, for which complainant was

successful in proving discrimination on two. Rather, we find the

complaint alleges six claims of discrimination. She successfully

proved discrimination on two of her claims, one of which was a hostile

work environment. The evidence produced by complainant, and referenced

by the administrative judge, is complainant's evidence in support of

her claim of hostile work environment, and are not additional issues.

We find the agency's characterization of this complaint as containing

13 separate claims to be a deliberate attempt to fragment and reduce

the amount of attorney's fees for which complainant is entitled.

Therefore, we have reduced the attorney's fees as referenced above

($46,132.13) by 2/3, for a total of $15,684.92. Complainant's attorney's

costs remain at $7,837.64.

ADDITIONAL HOURS REQUESTED ON APPEAL

On appeal, complainant's attorney states that additional hours have

been expended since he submitted the fee petition. Specifically,

on October 10 and October 11, 1996, he spoke with the complainant,

and wrote two letters to the agency in response to their request for

medical documentation. These tasks were billed for 4 hours at $175 per

hour and were in an attempt to ensure the agency's compliance with the

final decision. Additionally, complainant's attorney states that two

hours of a deposition were not included in the original fee petition,

and requests payment for those two hours. Finally, the attorney claims

that he worked 33.5 hours on the appeal for the fee petition.

As an initial matter, we find complainant's attorney's request for items

he neglected to include in his initial fee petition to be untimely,

and we therefore decline to include payment for such. With respect to

the four hours the attorney claimed as spent in compliance attempts, the

attorney is advised that he first must submit this request for additional

fees to the agency pursuant to 64 Fed. Reg. 37, 644, 37, 660(1999)(to

be codified and hereinafter referred to as 29 C.F.R. � 1614.501(e)(2)).

With respect to attorney's fees for the instant appeal, in Black

v. Department of the Army, EEOC Request No. 05960390 (December 9,

1998), the Commission departed from its earlier precedent related to

appeals from fee petitions. Previously we determined that appeals from

fee petitions should not exceed 3% of the hours in the main case when

there was no hearing, or 5% where the matter involved a hearing, such

in this case. Now, the Commission uses a "reasonableness standard"

when determining an attorney's entitlement to fees for preparing and

litigating a fee petition. Considering the attorney's experience in

these matters, we find a more reasonable amount would be five hours,

$875, for litigating the fee petition.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

MODIFY the agency's award of attorney's fees, and REMAND the case for

payment of attorney's fees as set forth below.

ORDER (D1092)

The agency is ORDERED to take the following remedial action:

1. Within ten (10) days of the date on which this decision becomes final,

the agency shall tender the following to complainant's attorney:

fees in the amount of $15, 684.92;

costs in the amount of $7, 837.64; and

fees related to the fee petition appeal in the amount of $875.00.

Inasmuch as the attorney made a further request to the Commission for

payment for additional hours (4 hours @ $175 per hour) incurred subsequent

to the October 7, 1996 fee petition, we REMAND this request to the

agency pursuant to 64 Fed. Reg. 37, 644 , 37, 660(1999)(to be codified

and hereinafter referred to as 29 C.F.R. � 1614.501(e)). The agency

shall request additional information from the attorney, if necessary, to

enable it to make a fully informed decision on this additional request

for attorney's fees. Both the agency and the attorney shall make all

possible efforts to agree upon reasonable attorney's fees.

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 including

evidence that the corrective action has been implemented.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must be

submitted to the Director, Office of Federal Operations, Equal Employment

Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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).

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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:

February 14, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________ __________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2In that regard, the AJ noted the agency terminated co-worker C on June

14, 1996.

3We note that the attorney failed to indicate the amount of time spent

in traveling to and from the hearing. We have, therefore, allowed one

hour of travel time per day.