0120143074
02-23-2016
Dorathy M.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dorathy M.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120143074
Agency No. 2009-22470-FAA-02
Hearing No. 570-2009-00765X
DECISION
Pursuant to 29 U.S.C. � 1614.405(a), the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's September 24, 2014 appeal concerning her entitlement to attorney's fees and costs.2
ISSUE PRESENTED
The issue presented on appeal is whether Complainant is entitled to attorney's fees in the amount of $34,526.00 and costs in the amount of $209.88, for a total of $34,735.88.
BACKGROUND
During the period at issue, Complainant worked as a Program Manager at the Agency's Office of Safety in Washington D.C. On March 16, 2009, Complainant filed a formal EEO complaint alleging that she was discriminated against on the bases of sex and in reprisal for prior EEO activity when:
on or about November 4, 2008, she was not selected for the positions of Safety Management System (SMS) Policy Manager position advertised under Vacancy Announcement AWA-AJS-09-MM46191-12525) and SMS Promotion Manager position (advertised under Vacancy Announcement AWA-AJS-09-MM56572-12645).
After the investigation, Complainant timely requested a hearing. The EEOC Administrative Judge (AJ) issued a decision on April 11, 2013, which followed a three-day hearing. In the decision, the AJ found that Complainant had been unlawfully retaliated against for engaging in protected EEO activity, when she was not selected for the positions of SMS Policy Manager and SMS Promotion Manager.
In her decision, the AJ found that Complainant "was the plainly superior candidate" for both the Policy Manager and Promotion Manager positions. The AJ found that the Agency's selection process "was fraught with inconsistencies which raised questions about the legitimacy of its conclusions." The AJ noted that with respect to the Policy Manager position, the objective evidence revealed that Complainant's application and interview performance were rated plainly superior to the selectee. The AJ found, however, that the selecting official chose to ignore the objective evidence of Complainant's superior qualifications. The AJ did not find the selecting official credible.
Similarly, regarding the position of Promotion Manager, the AJ found that Complainant scored higher than the selectee. The AJ emphasized that the selectee did not technically qualify for an interview because the selectee did not have experience "in managing multifunction groups in the formulation of policy, plans, and strategies pertinent to safety management" which was identified as a Selective Placement Factor. In the initial screening, the Agency found the selectee did not have any qualifications related to this factor, and the AJ indicated that she should not have been considered further. The AJ again found that Complainant's qualifications were plainly superior to that of the selectee.
The AJ also reviewed the interview process and found it to be problematic and unreliable. The AJ found that, although a scoring system was developed, it was not used consistently. The AJ noted that the interview panel's conclusions were not supported by its actual scores, which raised questions about the legitimacy of its recommendations.
In conclusion, the AJ found that the evidence established that it was more likely than not that the decision not to select Complainant for promotion to either the Safety Promotion Manager position or Safety Policy Manager position was motivated by retaliation for Complainant's prior protected EEO activity.
By Notice of Appeal dated and faxed on July 22, 2013, the Agency filed an appeal with the Office of Federal Operations from the AJ's decision finding that the Agency retaliated against Complainant with respect to two non-selections. The record indicates that the AJ's decision was faxed to the Agency on April 11, 2013, and the hearing record was received by the Agency on April 16, 2013. On May 24, 2013, the Agency issued its final order declining to implement the AJ's decision. Simultaneously, on May 24, 2013, the Agency filed a notice of appeal with the AJ rather than the EEOC's Office of Federal Operations, as required by 29 C.F.R. �� 1614.110(a) and .403(a).
On July 22, 2013, the Agency apparently realized its error and filed its appeal with the Office of Federal Operations. In that appeal, the Agency conceded that it erred in originally filing its appeal with the AJ and requested that its mistake be excused. The Agency justified its error as a result of "turmoil" within its legal department due to extra duties imposed on it to provide legal advice to management regarding the proper implementation of sequestration-related furloughs.
The Commission determined that the Agency did not properly file its appeal in a timely manner. The Commission also found that the Agency did not provide adequate justification for waiving the time limits for filing its appeal. The Agency's July 22, 2013 appeal was dismissed as untimely filed. Therefore, the AJ's April 10, 2013 decision discussed above, became the final decision.
Moreover, the Commission concluded that, despite the dismissal of the Agency appeal, substantial evidence nevertheless supported the AJ's conclusion of unlawful retaliation with regard to the two subject non-selections, and remanded the matter to the Agency for further processing. The Agency was ordered to take the following remedial and corrective action:
1. The Agency shall offer to promote Complainant to the position of Safety Promotion Manager or Safety Policy Manager, or a substantially equivalent position, retroactive to June 11, 2009.
2. The Agency shall determine the appropriate amount of back pay plus interest and other benefits due to Complainant pursuant to 29 C.F.R. � 1614.501 and 5 C.F.R. � 550.805. Complainant shall cooperate with the Agency's effort to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay, the Agency shall issue a check to Complainant for the undisputed amount within 30 days of the date this decision becomes final. Complainant may contest the Agency's back pay award in accordance with the appellate procedures.
3. The Agency shall pay Complainant in the amount of $85,000 in non-pecuniary compensatory damages.
4. The Agency shall require the responsible selecting officials (identified in the AJ's decision by name) to take eight (8) hours of EEO training in the provisions of Title VII of the Civil Rights Act of 1964, with an emphasis on non-discrimination and the prohibition against retaliation for engaging in protected EEO activity.
5. The Agency shall pay reasonable attorney's fees of $140,405.90 and costs of $9,309.40.
The Commission further stated that if Complainant has been represented by an attorney, she would be "entitled to an award of reasonable attorney's fees incurred in the processing of the complaint."
EEOC Appeal No. 0720130032 (April 18, 2014).
On May 19, 2014, Complainant, through her attorneys, submitted a fee statement, an affidavit from her attorneys attesting to the reasonableness of the attorney's fee rates, a copy of the attorney's firm documentation of costs incurred to the Agency's Office of Civil Rights which is the only issue of the AJ's April 10, 2013 decision. Complainant requested that the Agency award fees incurred in the appeal of this matter in the amount of $34,526.00 and costs in the amount of $209.88, for a total of $34,735.88.
The record reflects that the Agency's deadline to issue a decision with respect to Complainant's above referenced request was July 28, 2014, 60 days from the Agency's receipt of the request. However, the record reflects that almost 120 days had passed, as of the date Complainant's attorneys filed the brief for the instant appeal (September 24, 2014), and the Agency had yet to issue a decision on fees in this matter.
ANALYSIS AND FINDINGS
By federal regulation, the agency is required to award attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. EEOC Regulation 29 C.F.R. � 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the numbers of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhard, 461 U.S. 424 (1983).
The Commission's regulations pursuant to 29 C.F.R. � 1614.501(e)(2)(ii)(A) provide that an agency shall issue a decision determining the amount of attorney's fees or costs due within 60 days of receipt of the statement and affidavit in support of a request for fees or costs. We note that the Agency did not provide Complainant or her attorney with any such decision. Therefore, Complainant and her attorney were not provided with a right to appeal the Agency's denial of fees. We also note that the Agency did not respond to the instant appeal.
The Commission, in its discretion, may award the full amount of a request for attorney's fees where a federal agency is untimely in issuing a final decision on a fee request made pursuant to the provisions of its regulations. See Carroll v. U.S. Postal Service, EEOC Appeal No. 01994040 (May 29, 2002); Morra-Morrison v. U.S. Postal Service, EEOC Appeal No. 01972745 (June 18, 1998); Mason v. Department of the Interior, EEOC Request No. 05930678 (January 14, 1994); Johnson v. General Services Administration, EEOC Request No. 05910549 (August 29, 1991); Fields v. Department of Commerce, EEOC Request No. 05900510 (June 25, 1990).
The Commission finds that the Agency's action not to consider Complainant's attorney's fees petition when it was filed amounted to unreasonable and unwarranted delay. We have independently reviewed the May 19, 2014 fee petition and find it to be reasonable as submitted. Therefore, the Agency will be ordered to promptly pay the full amount of the attorney's fees requested in that petition.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's contentions on appeal, we grant Complainant's request for attorney's fees and costs and REMAND this case to the Agency to take remedial action in accordance with the Order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final, the Agency is ordered to issue a check to Complainant's attorney in the amount of $34,735.88. The Agency shall submit a report of a copy of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include documentary evidence 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 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 (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 (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 Complainants 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
February 23, 2016
__________________
Date
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.
2 Regulations provide that an agency issue a decision determining the amount of attorney's fees or costs due, within 60 days of receipt of the statement and affidavit in support of a request for fees or costs. 29 C.F.R. � 1614.501 (e)(2)(ii)A. We note that the Agency did not provide Complainant or her attorney with such a decision. Therefore, Complainant and her attorney were not provided any right to appeal the Agency's denial of fees. Because the Agency should have given Complainant appeal rights to the Commission, we accept this appeal.
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