Edward Ferch, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJan 15, 2009
072008007 (E.E.O.C. Jan. 15, 2009)

072008007

01-15-2009

Edward Ferch, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Edward Ferch,

Complainant,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 0720080007

Hearing No. 260-05-00221X

Agency No. 6M0M04015

DECISION

Concurrent with the issuance of its November 2, 2007 final order,

the agency filed an appeal. On appeal, the agency requests that the

Commission affirm its rejection of an EEOC Administrative Judge's award

of attorney's fees after a finding of discrimination in violation of

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 final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Aircraft Inspection Mechanic at the agency's 440th Airlift Wing,

General Mitchell Air Reserve Station (ARS) in Milwaukee, Wisconsin.

Complainant filed an EEO complaint dated October 4, 2004, alleging that

he was discriminated against on the basis of age (40) when he was not

selected for the position of Aircraft Work inspector, WG-8852-11 on June

2, 2004.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request a

hearing before an EEOC Administrative Judge (AJ). Complainant requested a

hearing and the AJ held a hearing. The AJ issued a decision on September

12, 2007.

In his decision, the AJ found that age discrimination motivated

the agency's decision to select a candidate substantially younger

than complainant for the subject position. The AJ ordered the agency

to provide relief to complainant. That relief included an award of

reasonable attorney's fees and costs.

The agency subsequently issued a final order on November 2, 2007,

accepting the AJ's finding of age discrimination, but rejecting the AJ's

award of attorney's fees.

Complainant appealed the agency's final order with respect to the

rejection of the AJ's award of attorney's fees. Complainant requests

that the Commission reverse the agency's final order and reinstate the

award of attorney's fees ordered by the AJ. Specifically, complainant

argues that the Equal Access to Justice Act (EAJA) creates a waiver

of sovereign immunity and allows attorney's fees to be awarded to a

successful federal employee in an ADEA case.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

As an initial matter, we find that as neither party disputes the AJ's

finding of discrimination, we affirm that determination herein.

The Commission has consistently held that attorney's fees are not

available under the ADEA for work performed in the administrative

process. See, e.g., Ramiro Tellez v. Department of the Army EEOC Request

No. 05A41133 (March 18, 2005) (citing Cho v. Department of the Army,

EEOC Request No. 05930148 (July 16, 1993)). Further, we note that the

Commission has previously rejected the argument that attorney's fees are

available in ADEA cases under the Equal Access to Justice Act (EAJA).

See Jones v. Department of the Air Force, EEOC Request No. 05891109

(January 11, 1990). Accordingly, we find that complainant is not entitled

to an award of attorney's fees for services rendered in connection with

his age discrimination complaint.

CONCLUSION

Accordingly, we AFFIRM the AJ's decision finding discrimination

occurred on the basis of age. We further AFFIRM the agency's final

decision rejecting the award of reasonable attorney's fees and costs.

We order the agency to comply with the other remedies ordered by the AJ,

as modified herein.

ORDER

To the extent it has not already done so, the agency shall take the

following actions:

1. Within 60 days of the date this decision becomes final, the

agency shall offer to promote complainant to the position of Aircraft Work

Inspector (Air Reserve Technician). Complainant shall be given a minimum

of 30 calendar days from receipt of the offer within which to accept or

decline the offer. Failure to accept the offer within the time period

set by the agency will be considered a rejection of the offer, unless

complainant can show that circumstances beyond his control prevented a

response within the time limit.

2. Within 60 days of the date this decision becomes final, the

agency shall determine and pay complainant back pay (with interest, if

applicable) and other benefits due complainant pursuant to 29 C.F.R. �

1614.501. The agency's determination shall be based on the fact that,

absent discrimination, complainant would have been selected for an

Aircraft Work Inspector (Air Reserve Technician) in June 2004, and

subsequently would have received all career ladder promotions to which

an employee who performed in a fully successful manner was entitled.

If complainant declines to accept the promotion with the agency, the

back pay period for the Aircraft Work Inspector (Air Reserve Technician)

position shall end on the date he declines the offer of promotion.

3. Within 180 days of the date this decision becomes final,

the agency shall provide training to the responsible agency officials

concerning the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.

4. Within 180 days of the date this decision becomes final, the

agency shall consider taking appropriate disciplinary action against the

responsible management officials still employed by the agency. The agency

shall report its decision to the Compliance Officer, referenced herein.

If the agency decides to take disciplinary action it shall identify the

action taken. If the agency decides not to take disciplinary action, it

shall set forth the reason(s) for its decision not to impose discipline.

If any of the responsible management officials have left the agency's

employment, the agency shall furnish documentation of their departure

date(s).

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 evidence showing that the corrective

action has been implemented

POSTING ORDER (G0900)

The agency is ordered to post at its 440th Maintenance Group, General

Mitchell Air Reserve Station, Milwaukee, Wisconsin facility copies of

the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 (M1208)

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), 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 (R0408)

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 (Z1008)

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

January 15, 2009

__________________

Date

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0720080007

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0720080007