Garrett T. Donaldson, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionDec 24, 2009
0720090032 (E.E.O.C. Dec. 24, 2009)

0720090032

12-24-2009

Garrett T. Donaldson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Garrett T. Donaldson,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0720090032

Hearing No. 480-2007-00210X

Agency No. HS-05-TSA-002118

DECISION

INTRODUCTION

With its December 23, 2008 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).

On appeal, the agency requests that the Commission affirm its rejection

of the amount of an award of attorney's fees, by an EEOC Administrative

Judge's (AJ), following a finding of discrimination in violation of Title

VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �

2000e et seq. Subsequently, complainant filed a cross appeal. For the

following reasons, the Commission MODIFIES the agency's final order.

ISSUES PRESENTED

The issues presented are: (1) whether the AJ erred in determining the

amount of attorney's fees and other costs awarded to complainant, and (2)

whether the AJ erred in determining complainant's "make whole" relief.

BACKGROUND

During the relevant period, complainant worked as a Federal Air Marshall

at the Las Vegas Office of the agency. In a formal EEO complaint dated

March 7, 2005, complainant alleged that the agency discriminated against

him based on race (African-American) and reprisal for prior EEO activity

when:

(1) in October 2004, he was not selected for the position of Assistant

to the Special Agent in Charge (ATSAC) in Las Vegas, advertised under

Vacancy Announcement TSA-04-3298;

(2) on October 10, 2004, he was not selected for a temporary

duty assignment to U.S. Immigration and Customs Enforcement (ICE)

headquarters;

(3) on October 10, 2004, he was not selected for a temporary duty

assignment to Mission Operation Control Center;

(4) in October 2004, he was not selected for a collateral duty EEO

Special Emphasis Program Manager position,

(5) in November 2004, he was not selected for an assignment to the Joint

Terrorism Task Force (JTTF) in Phoenix, Arizona; and

(6) on March 9, 2006, he was not selected for the position of Acting

Assistant to the Special Agent in Charge.

The agency conducted an investigation of complainant's claims. At the

conclusion of its investigation, the agency informed complainant of

his right to request a hearing before an EEOC AJ or an immediate final

agency decision. Complainant requested a hearing.

Hearing Stage

Following a hearing on complainant's claims, the AJ issued a decision

finding that the non-selection in claim (5), concerning the assignment

to the Joint Terrorism Task Force, was "tainted by discriminatory and

retaliatory animus." The AJ concluded that complainant established a

nexus between the action in claim (5) and his 2004 prior EEO activity,

and that complainant's qualifications were plainly superior to those

of the candidate selected. Further, the AJ concluded that there

was evidence of past racial and retaliatory animus by complainant's

second-level supervisor who served as Acting Special Agent in Charge

(S1). Also, the AJ questioned the credibility of S1's testimony at the

hearing. Conversely, the AJ found that complainant failed to establish

discrimination as to the actions alleged in claims (1) - (4) and (6).

As relief for the finding in claim (5), the AJ ordered the agency to place

complainant in a collateral or special assignment, or a development or

leadership training opportunity equivalent to the position denied; pay

$15,000.00 in non-pecuniary compensatory damages;1 and pay attorney's

fees in the amount of $114,827.82 and costs in the amount of $7,498.01

for professional services rendered between March 1, 2005 and September

10, 2008.

As to attorney's fees, the AJ stated that it was the agency's burden

to show, because complainant was employed in Las Vegas, that it was

unreasonable for him to retain a Washington, D.C. attorney. The AJ

concluded that the agency failed to do so, noting that the agency

did not object to the location of complainant's counsel beforehand,

complainant's application and initial hiring were handled by agency

officials based in DC, and agency counsel was permanently located in

Washington. Therefore, the AJ found it appropriate to apply reasonable

hourly rates in Washington, D.C., based on the "Laffey matrix," which

he calculated ranged between $215.00 and $440.00 per hour over the span

of complainant's case (between 2005 and 2008).

Further, the AJ found that application of the attorney's most current rate

($440.00) to the total hours claimed was appropriate in consideration of

a delay in payment and that complainant realized significant achievement

in this case on a complex matter. The AJ found that, in the main, the

number of claimed hours expended were necessary, the billing statement

sufficiently specific with explanations of how services related to

the case, and that there was no double-billing for instances when an

associate's or colleague's work product was reviewed.

The AJ noted that he made reductions for instances of "block billing,"

which made it impossible to determine precise services; some travel

time; time to "locate" documents and handling of different cases; and

time to determine whether to accept the case. He stated that the above

deductions resulted in fees of $153,103.75, to which he applied a further

reduction of a 25% across-the-board for a total of $114,827.82. The AJ

determined that the claims upon which complainant failed to succeed were

"inextricably" related to his prevailing claim, and that there was not

a mathematical formula to reduce attorney's fees by ascribing a value

to each claim.2

Final Order and Agency's Contentions on Appeal

In a final order dated December 23, 2008, the agency accepted the AJ's

finding of discrimination with regard to claim (5), as well as the order

for equitable relief and the $15,000 awarded in non-pecuniary compensatory

damages. However, the agency rejected the amount of attorney's fees

awarded by the AJ, and filed the instant appeal. On appeal, the agency

asked that the Commission reduce the AJ's award of attorney's fees from

$114,827.82 to $10,422.50. The agency stated that this lesser amount

reflects an appropriate hourly rate and complainant's modest degree

of success in prevailing on one claim only. Specifically, the agency

stated that the AJ erred by allowing complainant to use the prevailing

rate for Federal District Courts in Washington, D.C. ($440.00 per hour)

rather than Las Vegas, Nevada (between $250.00 and $300.00 per hour),

which is where the claim arose and hearing was held, and placing the

burden on the agency to demonstrate the appropriate hourly rate rather

than on complainant.

Further, the agency stated that the AJ should have reduced the number

of hours by 84% because complainant was successful on only one of seven

claims. In addition, the agency stated that associates should receive

a different hourly rate than partners and duplicative billing for the

same work by two different people should be avoided. As to costs, the

agency stated that a reduction of six-sevenths is reasonable because of

success on one claim and that the costs could be distinguished for the

different claims. Then, the agency requested an additional reduction

of $18,367.50, stating that the billing statement was excessive and

redundant. The agency stated that the case was overstaffed for an

attorney with the experience of complainant's attorney; and that the AJ

should have allowed two hours only for pre-complaint determinations and

for discussion with a colleague. Summarily, the agency stated that the

AJ should have awarded $275.00 per hour for 298.5 hours and then reduced

by six-sevenths for a total of $10,422.50.

Complainant's Cross Appeal

Complainant filed a cross appeal, stating that the AJ improperly refused

to consider two briefs regarding full relief and improperly reduced the

attorney's fee award by 25%. He asked this Commission to vacate/modify

the AJ's award for full equitable relief, and attorney's fees and costs.

The complainant stated that he sought $187,797.75 in attorney's fees and

$7,736.27 in related expenses for legal services through November 17,

2008. Complainant stated; "it was [his attorney's] specific experience

with regard to federal employment practices as they relate to federal

law enforcement officers [and] his recognized expertise in the field of

federal civil service law generally and employment discrimination practice

in federal employment" that caused him to retain his legal practice.

Complainant added that he had to hire an attorney from a Federal region

rather than Las Vegas and that the agency failed to show that his

selection was unreasonable. Complainant stated that the agency does

not want to pay for review by attorneys other than his primary counsel,

or for peer or supervisory review within the law practice.

Further, complainant stated that the agency does not want to compensate

for four trips his legal counsel made to Las Vegas; including travel

for depositions, mediation sessions, and the administrative hearing or

for time it referred to as "non-productive" during travel. Finally,

complainant stated that all of his claims are "inextricably linked" so

it is impossible to separate attorney's fees based on his success on the

one claim, and that his attorney already made appropriate adjustments.

Complainant's lead counsel stated, during appeal, that his and his

associate's hourly rates have since increased.

Finally, complainant argued that the AJ erred with regard to the

make-whole relief awarded for the discrimination found in claim (5)

by ordering the parties to "work together and agree" on a developmental

special or collateral assignment functionally equivalent to the Joint

Terrorism Task Force assignment without setting any deadline for the

parties to reach agreement. Complainant asserts that when the parties

did not reach agreement, he submitted a petition to the AJ that proposed

acceptable equitable remedies. However, although the agency did not file

an opposing brief, the AJ refused to consider the petition and issued no

order finalizing the developmental assignment complainant was entitled

to as make-whole relief.

ANALYSIS AND FINDINGS

Attorney's Fees and Costs

Title VII authorizes the award of reasonable attorney's fees, including

for an attorney's processing of a compensatory damages claim. 29 C.F.R. �

1614.501(e). To establish entitlement to attorney's fees, complainant

must first show that he or she is a prevailing party. Buckhannon Bd. and

Care Home Inc. v. West Virginia Dept. of Health and Human Resources,

et al. 532 U.S. 598 (2001). A prevailing party for this purpose is one

who succeeds on any significant issue, and achieves some of the benefit

sought in bringing the action. Davis v. Dep't of Transportation, EEOC

Request No. 05970101 (February 4, 1999) (citing Hensley v. Eckerhart,

461 U.S. 427, 433 (1983)).

The fee award is ordinarily determined by multiplying a reasonable

number of hours expended on the case by a reasonable hourly rate, also

known as a "lodestar." See 29 C.F.R. � 1614.501(e)(2)(ii)(B); Bernard

v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998).

In determining the number of hours expended the Commission recognizes

that the attorney "is not required to record in great detail the manner

in which each minute of his time was expended." Bernard, supra. However,

the attorney does have the burden of identifying the subject matters which

he spent his time by submitting sufficiently detailed and contemporaneous

time records to ensure that the time spent was accurately recorded. Id.

Further, a reasonable fee award may be assessed in light of factors such

as: (1) the time required (versus time expended) to complete the legal

work; (2) novelty or difficulty of the issues; (3) the requisite skill

to properly handle the case; (4) the degree to which counsel is precluded

from taking other cases; (5) the relief sought and results obtained; and

(6) the nature and length of the attorney-client relationship. See Cerny

v. Dep't of the Army, EEOC Request No. 05930899 (October 19, 1994).

Standard of Review

The First Circuit in Coutin v. Young & Rubicam, 124 F.3d 331, 337

(1st Cir. 1997), a case cited by EEOC Management Directive (MD)-110,

provides guidance as to the appellate standard of review for an AJ's

determination of attorney's fees:

We review fee awards deferentially, according substantial respect to the

trial court's informed discretion. See Brewster v. Dukakis, 3 F.3d 488,

492 (1st Cir. 1993). We will disturb such an award only for mistake of law

or abuse of discretion. See United States v. Metropolitan Dist. Comm'n,

847 F.2d 12, 14 (1st Cir. 1988). In this regard, an abuse of discretion

occurs "when a material factor deserving significant weight is ignored,

when an improper factor is relied upon, or when all proper and no improper

factors are assessed, but the court makes a serious mistake in weighing

them." Foster v. Mydas Assocs., Inc., 943 F.2d 139, 143 (1st Cir. 1991)

[internal quotation marks and citations omitted].

124 F.3d at 336. Therefore, in this appeal, the Commission will therefore

determine if the AJ made a mistake as a matter of law or abused his

discretion.

Determination of Reasonable Hourly Rate

The reasonable hourly rate is generally determined by the prevailing

market rate in the relevant legal community for similar services by

lawyers of reasonably comparable skill, experience and reputation.

Blum v. Stenson, 465 U.S. 886 (1984). The AJ in this case relied on

the Washington D.C. prevailing market rates to determine the reasonable

hourly rate for complainant's attorneys, a Washington law firm. Using the

"Laffey Matrix", a formula relied upon by federal courts to establish

the range of hourly rates for attorneys practicing in the Washington,

D.C. area, the AJ found reasonable hourly rates between $215.00 and

$440.00 for the time period incorporating this case. The AJ approved

an hourly rate of $440.00 in this case, applied to the entire period

of the claim in lieu of applying changing historical rates in order to

compensate complainant's attorneys for the delay in payment.

On appeal, the agency argues that complainant should not be awarded

more than the prevailing rates for attorneys in the Las Vegas area

(between $250.00 and $300.00), where the action arose and was litigated.

Therefore, the agency asserted that an hourly rate of $275.00 should be

applied.

The Commission has found that if a party does not find counsel

readily available in his/her locality with whatever degree of skill may

reasonably be required, it is reasonable that the party go elsewhere to

find an attorney even if it results in the payment of a higher hourly

rate than the prevailing market in the location where the action arose.

See Southerland v. U. S. Postal Service, EEOC Appeal No. 01A05403 (October

16, 2002). The burden is on the agency to show that complainant's

decision to retain out-of-town counsel was unreasonable. Id.

In this case, we find that the AJ did not abuse his discretion when

he determined that the agency failed to establish that complainant's

use of an out-of-state attorney was unreasonable. We note that the

AJ based this decision on defensible criteria, including: the fact

that the agency never lodged an objection during the proceedings to

the location of complainant's counsel; some of the actions at issue

were handled by Washington-based agency officials; some of the agency

officials called to testify had Washington duty stations; and agency

counsel was permanently located in the Washington metropolitan area.

Accordingly, we affirm the AJ's approval of an hourly rate based on the

prevailing market rates in the Washington, D.C. area. In addition, we

find no abuse of discretion has been established by the agency in the

AJ's decision to apply the "delay of payment" standard to the entire

litigation period. See Missouri v. Jenkins, 491 U.S. 274 (1989). As

such, we conclude that it was reasonable for the AJ to apply an hourly

rate of $440.00 to complainant's entire attorney fee request.

Determination of Hours Reasonably Expended, Including AJ's 25%

Reduction in the Lodestar in Light of the Results Obtained

Complainant is only entitled to an award for time reasonably expended. It

does not always follow that the amount of time actually expended is

the amount of time reasonably expended. Donald v. Dep't of Labor, EEOC

Request No. 01943425 (August 31, 1995). Rather, "billing judgment" is an

important component in fee setting, and hours that would not be properly

billed to a private client are also not properly billed to the agency

pursuant to a successful EEO claim. Id. "Counsel for the prevailing

party should make a good faith effort to exclude from a fee request

hours that are excessive, redundant or otherwise unnecessary." Hensley,

461 U.S. at 433.

"[R]esults obtained" is an important factor in determining an award of

attorney's fees. Hensley, 461 U.S. at 434. Considerations include

whether complainant failed to "prevail on claims that were unrelated

to the claims on which he succeeded . . . [and whether complainant]

achieve[d] a level of success that makes the hours reasonably expended

a satisfactory basis for making a fee award." Id. The latter considers

whether the claims "involve[d] the same facts and legal theories." Id.

On appeal, the agency has asked that the Commission reduce the AJ's award

of attorney's fees from $114,827.82 to $10,422.50. The agency stated that

this lesser amount reflects an appropriate hourly rate and complainant's

modest degree of success in prevailing on one claim only. As already

noted above, the agency stated that the AJ should have reduced the number

of hours claimed by counsel by 84%, rather than 25%, because complainant

was successful on only one of seven claims. The agency requested an

additional reduction of $18,367.50, stating that the billing statement was

excessive and redundant, asserting that the case was overstaffed for an

attorney with the experience of complainant's attorney; and that the AJ

should have allowed two hours only for pre-complaint determinations and

for discussion with a colleague. Summarily, the agency stated that the

AJ should have awarded $275.00 per hour for 298.5 hours further reduced

by sixth-sevenths.

In response, complainant contends that his successful claim was

so "closely intertwined" with his unsuccessful claims so as to be

unfractionable. He further asserts that all the 481.4 hours claimed for

services between March 1, 2005 and September 10, 2008, were reasonable.

The Commission, after careful review of the arguments on appeal, concludes

that the agency has failed to meet its burden of establishing that the

AJ abused his discretion in determining that, in the main, the number of

hours claimed reflect work and time which was reasonable and necessary,

the billing statement contained sufficient specificity to make such

a determination, and double billing for the services of associates

or colleagues did not usually occur. On the other hand, the AJ also

appropriately reduced the fee petition by $6,102.00 for multiple billing

of attorney conference time, as well as a reduction of an additional

four hours, or $1,760.00, for specific time claimed he found excessive.

The AJ also noted that the agency was correct in its assertion that

complainant's fee recovery should be limited to the amount reasonable

in light of the limited results obtained. Therefore, the AJ applied

a 25% across-the-board reduction to reflect the fact that complainant

did not prevail on all claims in his complaint. Before the AJ and on

appeal, the agency asserts that the AJ should have reduced the total fee

entitlement by six-sevenths to reflect that complainant only prevailed

on one of seven claims in his complaint. Complainant has responded that

no reduction should be taken as his claims were so interwoven that they

were unfractionable.

The Commission has approved the method of addressing the appropriate

amount of attorney's fees by taking a percentage across-the-board

reduction of compensable time billed, particularly when a complainant

is not completely successful. See Blinick v. Dep't of Housing and Urban

Development, EEOC Appeal No. 07A20079 (February 3, 2004)(citing McGinnis

v. Dep't of Defense, EEOC Request No. 05920150 (July 15, 1992)).

In this case, we conclude that neither the agency nor complainant

have established that the AJ abused his discretion in taking a 25%

across-the-board reduction in fees to reflect the limited success

complainant had in this case. The AJ agreed with complainant that the

claims on which he failed were "inextricably" related to the claim on

which he prevailed. In support, the AJ noted that all seven claims

were bound by a continuum of events, a common core of facts, and were

presented jointly because they involved overlapping issues, witnesses

and discovery. Moreover, the AJ noted that evidence on some of the

unsuccessful claims served as relevant background evidence directly

relating to complainant's successfully litigated claim and served to

establish the essential nexus to his prior, protected activity. Based on

our review of the record and consideration of the arguments presented

on appeal, we cannot conclude that the AJ abused his discretion in this

matter when he declined to adopt the agency's arbitrary mathematical

formula because all the matters were joined by a common core of facts,

and instead reduced the fees across-the-board by 25% to reflect that

complainant did not prevail on all claims raised in his complaint.

We also find that corresponding costs are consistent with reasonable

legal representation in this case, so the AJ's award of $7,498.01 is

undisturbed. See generally MD-110, Chapter 11, V(A).

As complainant prevailed at the appellate state, he is now also entitled

to attorney's fees for work performed at this stage. EEO Management

Directive 110 (MD-110), Chapter 11, VI(A)(3) (November 9, 1999).

See Order below.

Make-Whole Relief

As already noted, the AJ determined that complainant should be made

whole for the discrimination and unlawful retaliation he suffered when

he was not selected for assignment to the Joint Terrorism Task Force.

Therefore, the AJ ordered the agency to:

appoint complainant to a special or collateral assignment, or [provide]

him with a development or leadership training opportunity, functionally

equivalent to the JTTF [Joint Terrorism Task Force] position which he

was wrongfully denied, considering the current stage of complainant's

career and the fact that complainant was appointed to the Phoenix JTTF

after he instituted this action. The agency and complainant will work

together and agree in determining the specific position or opportunity

to satisfy this criteria.

In his cross-appeal, complainant indicates that the implementation of

this order by the AJ was never resolved between the parties, and because

the AJ did not impose a deadline for its resolution, make-whole relief

remains an outstanding issue.

The Commission agrees that this issue should have been resolved below.

Therefore, we will remand that matter back to the agency to conduct

time-limited negotiations with complainant and his representative to

resolve this issue, followed by the issuance of an agency final decision

with appeal rights to the Commission.

CONCLUSION

Based on the above, we MODIFY the final agency decision and REMAND the

matter to the agency for remedial action consistent with this decision

and the Order below.

ORDER

(1) Within forty-five (45) days of the date this decision becomes final,

the agency shall pay complainant $114,827.82 in attorney's fees and

$7,498.01 in related costs as ordered by the AJ.

(2) The agency shall also pay attorney's fees for the appellate stage

consistent with the statement entitled the same below and complainant

shall cooperate with the agency's efforts.

(3) Within sixty (60) days of the date this decision becomes final, the

agency shall conduct negotiations with complainant and his representative

to resolve the agency's compliance with the AJ's order of make-whole

relief for complainant as discussed in the body of this decision. If the

parties reach an agreement within the 60-day period, that agreement

shall be reduced to writing and executed as full and final resolution

of this make-whole issue. If the parties do not reach an agreement,

the agency shall promptly issue a final decision on the matter with

appropriate appeal rights to this Commission.

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 supporting documentation verifying

that the corrective action has been implemented.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

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

December 24, 2009

__________________

Date

1 Regarding compensatory damages, the AJ stated that complainant offered

limited evidence of damages of any nature other than an assertion that

the sidetracking of his career physically and emotionally exhausted him.

The AJ stated that he based $15,000.00 on amounts awarded in similar

cases.

2 The AJ noted that he did not consider a subsequent November 18, 2008

petition from complainant because he found it untimely filed, the agency

had already responded to his prior petition, it contained different

information, and it increased the fees and costs request to $195,534.02.

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2

0720090032

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

11

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