01a00335
10-26-2000
Eunice F. Houston, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Eunice F. Houston v. Department of Veterans Affairs
01A00335
October 26, 2000
.
Eunice F. Houston,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A00335
Agency No. 9800255
Hearing No. 330-98-8191x
DECISION
Eunice F. Houston (complainant) timely initiated an appeal from a final
agency decision (FAD 2) concerning her claim for attorney's fees and
costs as a prevailing party in her complaint of unlawful employment
discrimination on the basis of sex (female), in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The issue presented is whether complainant established that she is
entitled to an award of reasonable attorney's fees in connection with
the agency's adoption of an EEOC Administrative Judge's (AJ) finding of
sexual harassment.
In a formal complaint dated October 21, 1997, complainant alleged
discrimination on the basis of her sex (female) when her supervisor
flicked, touched and pulled her hair, twisted her arm and grabbed the back
of her neck, from May to September 1997. In a FAD dated August 2, 1999
(FAD 1), the agency adopted the AJ's finding of sexual harassment and
noted that complainant was entitled to claim attorney's fees and costs.
FAD 1 advised complainant that the fee petition must be submitted to
the agency within thirty (30) calendar days of the date of receipt of
the FAD.
The record establishes that complainant's attorney received FAD 1 on
August 5, 1999. The agency issued FAD 2 on attorney's fees on September
27, 1999, finding that because no petition for attorney's fees had been
submitted, complainant was not entitled to an award of attorney's fees
and costs. It is from FAD 2 that complainant now appeals.
On appeal, complainant, through her attorney (A1), contends that the
fee petition was sent to the agency within the 30-day time period.
A1 notes that she contacted an agency employee on August 27, 1999,
who indicated that he was responsible for conducting the supplemental
investigation into complainant's compensatory damages claim ordered
in FAD 1. Accordingly to A1, this employee (E1) told her to forward
complainant's damages information to him at an agency address he then gave
to her. A1 understood this to mean that she should send the compensatory
damages information and the attorney's fees information to E1, which she
did within 30 days of receiving FAD 1. Attached to the appeal brief,
A1 includes an airbill from Federal Express, confirming that she sent
information to E1 on September 4, 1999. A1 also includes a copy of
the compensatory damages request and the attorney's fees petition,
which she sent to E1.
After a careful review of the record, we find that the agency's decision
was improper. In analogous situations, the Commission has held appeals
timely where complainants sent what would have been timely appeals to
the agency instead of the Commission. See Thompson v. Department of the
Army, EEOC Request No. 05940588 (February 24, 1995); see also Colantuoni
v. Eximbank, EEOC Request No. 05910612 (September 13, 1991) (appeal
considered timely when complainant timely sent it to the EEOC Washington
Field Office, on the same street as the Commission's Headquarters); Colgan
v. United States Postal Service, EEOC Appeal No. 01951027 (October 31,
1995) (Office of Federal Operations finds that complainant timely filed
his complaint when he timely sent it to the wrong EEO Office).
While the Commission has found appeals untimely when sent to the wrong
address after complainant received explicit instructions on how and
where to file an appeal, the case herein involves a more complicated
situation. See Pacheco v. United States Postal Service, EEOC Request
No. 05930700 (September 10, 1993) (appeal untimely when sent to wrong
address despite receipt of proper instructions). Specifically, after
receiving FAD 1, which contained the proper address, A1 spoke with E1,
an agency official assigned to the case by the agency. E1 gave A1 an
address, informing her that information should be sent to that address.
Under these circumstances, we find that it would be improper to allow
the agency to refuse to consider complainant's fee petition. See,
generally, 3 Am. Jr. 2d Agency � 1 (1986) (a principal is bound by the
representations of its agents). We note, however, that it would also
be improper to make a determination on the amount of fees to be awarded,
without first allowing the agency to review the petition. Accordingly,
we hereby VACATE the FAD and REMAND the matter to the agency in accordance
with this decision and the ORDER below.
ORDER
The agency is ordered to review complainant's fee petition and issue
a final agency decision on the amount of fees and costs to be awarded,
with the appropriate appeal rights attached, within sixty (60) calendar
days of the date this decision becomes final. If complainant's attorney
has not yet sent the complete fee petition to the correct agency address
(Department of Veterans Affairs, Office of General Counsel (24), 810
Vermont Avenue, N.W., Washington, D.C. 20420) she shall do so within
fifteen (15) calendar days of the date this decision becomes final.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0900)
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 19848,
Washington, D.C. 20036. 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
(R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 26, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.