, et al., Bella S.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Dec 4, 2018

0520180353 (E.E.O.C. Dec. 4, 2018)

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

, et al.,
Bella S.,1
Complainant,

v.

Matthew G. Whitaker,
Acting Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.

Request No. 0520180353

Appeal No. 0120150750

Agency No. 8966598005

DECISION ON REQUEST FOR RECONSIDERATION

Complainant, as Class Representative, timely requested that the Equal Employment Opportunity
Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120150750
(January 9, 2018). EEOC regulations provide that the Commission may, in its discretion, grant a
request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. §
1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. §
1614.405(c).

Complainant, a Special Agent (SA), GS-13, with the Drug Enforcement Agency (DEA), filed a
class complaint on March 17, 1993. The class complaint alleged discrimination based on sex
(female) with respect to foreign assignments, promotions to supervisory positions and to grades
14 and above.

After a nine-day hearing, the EEOC Administrative Judge (AJ) assigned to the case issued a
Class Action Interim Hearing Decision, dated April 27, 2011, finding discrimination.

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.
0520180353

2
Thereafter, on January 12, 2012, the AJ issued a Report of Findings and Recommendations. The
report included the AJ’s previous finding of liability, as well as remedial orders. On March 13,
2012, the Agency issued a final decision choosing not to implement the AJ’s decision.
Complainant appealed the Agency’s final decision.

In EEOC Appeal No. 0120122033 (June 7, 2013), the Commission reversed the Agency’s
decision. Among the actions ordered, the Agency was required to process any additional
requests for attorney’s fees associated with the appeal. The Agency’s subsequent request to
reconsider the decision was denied. In EEOC Request No. 0520130561 (August 12, 2014), the
Agency was ordered to pay “$903,628.75 in attorney’s fees.[2] Additionally, the Agency shall
process any additional request for attorney’s fees associated with EEOC Appeal No. 0120122033
and EEOC No. 0520130561 . . .”

Approximately one month later, on September 11, 2014, Complainant, on behalf of the class and
through its attorney (“Class Counsel”), submitted a fee request to the Agency. In accordance
with the Commission’s order, the request concerned fees incurred from the time of the AJ’s
decision until the fee petition (i.e. for work done in relation to EEOC Appeal No. 0120122033
and EEOC Request No. 0520130561). However, the attorney’s fee request also sought payment
for: (a) the Agency’s purported “delay” in providing payment of the attorney’s fees awarded by
the AJ and modified by the Commission ($848,628.75)3, which the Class Counsel calculated to
be $194,866 (i.e. the difference between the prior and current, 2014-2015, Laffey Matrix); and
(b) a mathematical error (of $100,027) committed by the Agency in a May 24, 2011 filing with
the AJ, which the AJ, in turn, relied upon in her decision.

On October 10, 2014, the Agency filed an Opposition to Class Counsel’s Request for Payment of
Attorney’s Fees with the AJ.

On November 15, 2014, Complainant, through Class Counsel, filed a motion with the
Commission arguing that, within sixty days of the September 11, 2014 fee request, the Agency
should have issued a final decision on the matter but failed to do so. Complainant argued that the
Agency failed to comply with the orders to process her fee request and asked the Commission to
make a determination on attorney’s fees. In response, the Agency asserted that the matter was
pending with the AJ as part of a proposed Case Management Plan for Phase II of the class
complaint.

2 This amount included $883,628.75 for the current class counsel and $20,000 for the former
class counsel.

3 For work done from the filing of the complaint through the time of the AJ’s decision finding
discrimination.
0520180353

3
In EEOC Appeal No. 0120150750 (Jan. 9, 2018), the Commission dismissed the matter. The
Commission determined that because the case was pending before the AJ, and Complainant had
already requested that the AJ address the issue of attorney’s fees associated with EEOC Appeal
No. 0120122033 (June 7, 2013) and EEOC Request No. 0520130561 (August 12, 2014), it
would be premature for the Commission to consider the issue at that time.

Complainant filed the instant request for reconsideration. She asks that we reconsider our prior
decision but also, “[i]n the alternative, the class requests that the Commission consider this an
appeal of the AJ’s March 19, 2018 order regarding attorney’s fees.”

The Commission finds that the instant request fails to meet the criteria of 29 C.F.R. 1614.405(c),
and therefore the request is denied. However, clarification would be helpful in this matter.
EEOC Regulation 29 C.F.R. § 1614.503(c) permits the Commission to issue a clarification of a
prior decision in connection with a timely request for reconsideration. A clarification cannot
change the result of a prior decision or enlarge or diminish the relief ordered but may further
explain the meaning or intent of the prior decision.

As an initial matter, we note that the Agency did not violate our prior orders when it filed an
opposition to the September 11, 2014 fee petition with the AJ instead of issuing a final decision,
as asserted by Complainant. The Agency was ordered to process the attorney’s fee request in
accordance with 29 C.F.R. § 1614.501. This EEOC regulation states that a complainant shall
submit a statement of fees within thirty days and that “[t]he Agency may respond to a statement
of attorney’s fees and costs within thirty days of its receipt.” 29 C.F.R. § 1614.501(e)(2)(i).
Further, the “Agency or administrative judge shall issue a decision determining the amount of
attorney’s fees or costs due within sixty days of receipt of the statement . . . The decision shall
include notice of right to appeal to the Commission . . . [emphasis added].” 29 C.F.R. §
1614.501(e)(2)(ii)(A).

Instead, even though Complainant was likely provided a copy of the Agency’s October 10, 2014
opposition, she nonetheless filed an appeal on the matter with the Commission (EEOC Appeal
No. 0120150750) more than one month later. Therefore, we find that our prior decision to
dismiss the matter, because the fee request was pending before an EEOC AJ, was proper. For the
Commission to have issued a decision on the September 11, 2014 attorney’s fee request would
have risked inconsistent determinations and a duplicative waste of resources.

We note that in EEOC Appeal No. 0120150750, Complainant, through Class Counsel, not only
sought attorney’s fees incurred in the processing of EEOC Appeal No. 0120122033 and EEOC
Request No. 0520130561, as ordered by the Commission, but also argued that she was entitled to
additional monies (a) due to changes in the Laffey Matrix and (b) due to a mathematical error
made by the Agency while the matter was at hearing for liability. We find that, as stated by the
Agency, Complainant “improperly commingled its legitimate request for fees on appeal with an
untimely request to enhance the fees awarded in August 2014.” Complainant is attempting to
increase the amount of attorney’s fees awarded for work done up to the time of the AJ’s decision
finding discrimination.
0520180353

4
Such arguments should have been raised when the matter was on appeal with the Commission
(EEOC Appeal No. 0120122033). In her recent March 19, 2018 Order, the AJ made the same
observation. Specifically, the AJ stated that Complainant’s “requests are not properly before me
and should have been appealed with [Commission] to timely request reconsideration within 30
days of receiving the decision in August of 2014. [4] This would have ensured compensation to
the 2014 Laffey Rates and to fixed the alleged typographical error. It is not within my authority
to change a decision issued by OFO.” As such, Complainant’s opportunity to make such
arguments is foreclosed. Our decision in EEOC Request No. 0520130561 was final, and no
further right of administrative appeal exists from a decision on reconsideration.

Finally, to the extent that Complainant asserts that the instant request for reconsideration is
“alternatively” an appeal of the AJ’s March 19, 2018 decision, Complainant will need to file a
separate appeal on this matter with EEOC’s Office of Federal Operations. If done so within
30 days of the date of this decision, the new appeal will be considered to have been filed on April
18, 2018, the date the instant request was filed.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to DENY the request. The decision in EEOC Appeal No. 0120150750 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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.

4 We note that the AJ erroneously believed the August 2014 decision was an appeal, with rights
to request reconsideration, when in fact it was a decision on the reconsideration, with no further
appeal rights.
0520180353

5
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

December 4, 2018
Date