Earlie P.,1 Complainant,v.Joshua Gotbaum, Director, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity Commission

Oct 2, 2015

01-2013-0959-0500 (E.E.O.C. Oct. 2, 2015)

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

Earlie P.,1
Complainant,

v.

Joshua Gotbaum,
Director,
Pension Benefit Guaranty Corporation,
Agency.

Appeal No. 0120130959

Agency No. PBGC-06-08

DECISION

On January 4, 2013, Complainant filed an appeal from the Agency’s December 5, 2012, final
decision 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. 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 AFFIRMS
the Agency’s decision that it has complied with the Agency’s final decision on attorney’s fees.

BACKGROUND

On March 30, 2006, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of national origin (Hispanic), age (63), and in reprisal
for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. In November 2004 and February 2005, she was removed from the list of individuals
involved in initial participant meetings for plans that were taken over by the
Agency;
2. In February 2005, and again in April or May 2005, her supervisor suggested that
she should retire;

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.

0120130959

2
3. In October 2005, when she expressed concern that she was being discriminated
against in connection with her FY 2005 appraisal, her second line supervisor made
a remark intended to discourage her from using the EEO process;
4. Around October and November 2005, a Spanish-speaking call center employee
indicated that he had been asked repeatedly by Complainant’s supervisors whether
he had been doing some of her work, resulting in Complainant believing that her
supervisors were looking for problems;
5. On October 28, 2005, she received a “fully successful” performance appraisal,
which was lower than any of her last four appraisals;
6. In November 2005, she was informed that she was no longer the lead specialist in
the Spanish language program; and
7. On July 11, 2006, she received a written performance warning letter.

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). In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

Complainant appealed the Agency’s decision to the Commission. In EEOC Appeal No.
0120083421 (June 30, 2011), the Commission affirmed the Agency’s finding of no
discrimination, with regard to issues 1, 2, 4, 5, 6, and 7. With regard to issue 3, however,
the Commission found that Complainant established that she was subjected to discrimination
based on reprisal. The Commission ordered the Agency to conduct a supplemental
investigation into Complainant’s entitlement to compensatory damages, consider discipline for
the responsible supervisor, provide EEO training to the supervisor involved, and post a notice
informing employees that the Agency had been found to have discriminated against an
employee. The decision also awarded Complainant attorney’s fees.

The Agency filed a request for reconsideration of the Commission’s decision. In EEOC
Request No. 0520110605 (January 6, 2012), the Commission denied the Agency’s request for
reconsideration. The Commission reiterated its prior order.

Thereafter, Complainant’s attorney submitted a fee petition to the Agency requesting
$32,988.55 in fees and expenses. The Agency proceeded to conduct a supplemental
investigation to determine Complainant’s entitlement to compensatory damages.

On August 31, 2012, the Agency issued its Final Agency Decision on Compensatory Damages
and Attorney’s Fees. In its decision, the Agency awarded Complainant $1,500 in
nonpecuniary, compensatory damages, restoration of 89.50 hours of sick leave, and $3,567.56
in attorney’s fees. The Agency payment of compensatory damages and restoration of sick
leave were not contested. However, a dispute arose regarding the payment of attorney’s fees.

0120130959

3
On October 11, 2012, the Agency sent Complainant a copy of its Compliance Report to the
Commission with a copy to Complainant. The Agency was in the process of paying $3,567.56
in attorney’s fees to the law firm which had represented Complainant. Following receipt of the
Compliance Report, Complainant’s non-attorney representative notified the Agency via
electronic mail that the $3,567 in attorney’s fees needed to be paid directly to Complainant and
not the law firm that previously represented Complainant.

In response to Complainant’s electronic mail message, the Agency attorney informed
Complainant that the Verification of Fees in support of the attorney’s fee request was
submitted by the law firm and the supporting documentation did not indicate that any amounts
were paid by Complainant. The Agency attorney noted that as a result, the Agency authorized
payment of $3,567 in attorney’s fees directly to the law firm’s IOLTA account.

The next day, on October 12, 2012, the Agency informed Complainant it was able to stop the
payment to the law firm. However, the Agency noted the law firm informed the Agency that
payment should be processed to their trust account, while Complainant informed the Agency
that payment should be made to her. Thus, the Agency stated it was holding the payment until
the dispute was resolved. The Agency requested confirmation from both Complainant and her
attorney as to whom payment should be made.

On November 9, 2012, Complainant’s non-attorney representative wrote the Director of the
Agency’s Office of Equal Employment Opportunity and Diversity (OEEOD), notifying the
Director of the Agency’s failure to comply with its prior decision. Complainant’s
representative requested that all attorney’s fees be paid directly to Complainant.

On December 5, 2012, the OEEOD issued a Decision on Notice of Noncompliance. The
decision noted that the Agency would issue a check payable to both Complainant and the law
firm that previously represented her, and informing Complainant that the creation of the check
required coordination of the Agency and its payment processor and therefore may take several
weeks to accomplish. The decision gave Complainant appeal rights to the Commission. On
January 4, 2013, Complainant filed an appeal with the Commission.

On January 12, 2013, Complainant’s former attorney notified the Agency that he and
Complainant agreed to split the fee award 50/50.

On January 18, 2013, Complainant wrote Agency counsel and noted that she and her former
attorney agreed to split the fee 50/50. Complainant requested that separate checks be issued
with half payable to her and half payable to her former attorney.

On February 4, 2013, Complainant filed her brief in support of her appeal to the Commission.
Complainant contended that the Agency failed to pay her attorney’s fees in the amount of
$3,567.56. Complainant noted that in response to her November 9, 2012 notice of
noncompliance, the Agency issued a December 5, 2012 decision denying her request.
Complainant stated that “[a]s a result of the pressure, [she] agreed to accept a payment in the
0120130959

4
amount of half of $3,567.56, that is, $1,783.78.” Complainant noted that as of February 2,
2013, she had not received any payment of the attorney’s fees.

The Agency processed separate payments to Complainant and her former attorney. Payment
was made on February 4, 2013, in the amount of $1,783.78 to both Complainant and her
former attorney.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.504(a) provides that a final agency action that has not
been the subject of an appeal or a civil action shall be binding on the Agency. The regulation
provides further that if a complainant believes that the agency has not complied with the terms
of the final decision, that the complainant shall notify the Agency EEO Director, in writing,
within thirty days of the date on which the complainant knew or should have known of the
noncompliance. Id. If Complainant does not receive a response or is not satisfied with said
response, the Complainant may appeal to the Commission for a determination as to whether the
agency is in compliance. 29 C.F.R. § 1614.504(b).

Upon review, we find the Agency has produced evidence showing it paid attorney’s fees in the
amount of $3,567.56 as stated in its August 31, 2012 final decision. The record reveals that
Complainant and her prior attorney reached an agreement that they would split the total amount
of attorney’s fees and each would accept payment in the amount of $1,783.78. The Agency
produced evidence showing that it processed separate payments to Complainant and her former
attorney and that payment was made on February 4, 2013, in the amount of $1,783.78 to each
of them, totaling $3,567.56.

CONCLUSION

Accordingly, the Agency’s decision that it has complied with its final decision is AFFIRMED.

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
0120130959

5
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).

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 (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
0120130959

6
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

October 2, 2015
Date