Eunice F. Houston, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 26, 2000
01a00335 (E.E.O.C. Oct. 26, 2000)

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.