0120160265
05-29-2018
Doria R.,1 Complainant, v. Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Doria R.,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160265
Hearing No. 530-2011-00262X
Agency No. 200H-0642-2009104242
DECISION
On October 29, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 10, 2015, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission finds that the Agency did not comply with its final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision finding that Complainant was discriminated against and provided, among other things, attorney's fees in the amount of $102,191.67.
ISSUE PRESENTED
The issue presented in this whether the Agency complied with its final order.
BACKGROUND
At the time of events giving rise to her complaint, Complainant worked as a Nurse Manager (GS-13) at the Agency's VA Medical Center facility in Philadelphia, Pennsylvania. On November 20, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), age (over 40), and reprisal for prior EEO activity when:
1. From April 2008 through March 2010, she was subjected to a hostile work environment because of race (Caucasian) and age;
2. Complainant was reassigned from a Nurse Manager position to the position of Interim Nurse Manager of Surgical and Intensive Care Unit (SICU); and
3. On March 8, 2010, Complainant was terminated from federal service.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing and issued a decision on August 18, 2015. The AJ held: 1) the Agency had not subjected Complainant to disparate treatment based on race or age when she was reassigned; 2) Complainant was not harassed based on race or age; and 3) the Agency had a mixed motive for terminating Complainant, which included the intent to retaliate against her, but that Complainant would have been removed from federal service for violating Agency rules irrespective of the reprisal. Accordingly, because of the Agency's "mixed motive," Complainant was awarded attorney's fees in the amount of $102,191.67.
On November 10, 2015, the Agency issued a final order adopting the AJ's finding that Complainant established that the Agency subjected her to discrimination as alleged. In its final order, the Agency indicated that its Office of Employment Discrimination Complaint Adjudication (OEDCA) did not receive the AJ's decision until October 30, 2015, because it was not included on the AJ's distribution. The AJ's decision was mailed to the Agency's representative. The Agency conceded that by the time the OEDCA received the AJ's decision it was already final under the applicable regulations. The Agency noted that the AJ issued a decision in favor of the Agency with respect to some claims but found with respect to the termination of Complainant's employment, management had a mixed motive, i.e., management was motivated in part by reprisal, but would have taken the same action in the absence of reprisal. As such, the Agency accepted and fully implemented the decision of the Administrative Judge on November 10, 2015. In addition to the relief ordered by the AJ, the Agency ordered equitable relief, corrective action, training for a manager, consideration of appropriate disciplinary action and the posting of a notice.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency at the time of her appeal had not complied with the AJ's Order. Specifically, Complainant asserts that the AJ ordered that payment be made within thirty-days of the August 18, 2015 decision. As the Agency has not complied, she asserts that an hour of additional attorney's fees at the rate of $520 per hour should be added to the $102,191.67 in attorney fees. Complainant requests that the OFO calculate this amount at the current Laffey rate and include interest.
The Agency, among other things, asserts that Complainant's only concern on appeal is that the Agency did not comply with the AJ's time limitation.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.401(d) provides that Complainant may appeal to the Commission the Agency's alleged noncompliance with a final decision in accordance with � 1614.504. 29 C.F.R. � 1614.504 provides that Complainant must notify the Agency in writing of the alleged noncompliance 30 days of when Complainant knew or should have known of the alleged noncompliance. Thereafter, Complainant may file an appeal with the Commission thirty-five (35) days after she has served the Agency with allegations of non-compliance if the Agency has not responded, but must file an appeal within thirty (30) days of receipt of the Agency's determination regarding the allegation if the Agency has failed to satisfactorily respond to Complainant's satisfaction.
According to the AJ, the Agency had to pay Complainant attorney's fees in the amount of $102,191.67 within thirty days of her decision becoming final. The AJ's decision was issued on August 18, 2015 with a five (5) day presumption of receipt, i.e., Monday, August 24, 2015. The AJ's decision became final therefore forty (40) days after its receipt, i.e., October 3, 2015. The Agency had until November 2, 2015, thirty days after the AJ's decision became final, to pay Complainant attorney's fees and costs in the amount of $102,191.67. Although it appears Complainant's October 29, 2015 appeal was premature, we find that it was very unlikely that Complaint was issued a check by November 2, 2015, because the Agency did not issue a final order adopting the AJ's decision until November 10, 2015. Accordingly, we find that the Agency did not comply with the AJ's decision which became the Agency's final order on October 3, 2015. Therefore, we REMAND this matter to the Agency in accordance with the Order below.
ORDER
Within thirty (30) calendar days of the date of this decision is final, the Agency, if it has not already done so, is ordered to pay Complainant attorney's fees in the amount of $102,191.67. 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.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 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
__5/29/18________________
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.
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