Higinio Elizondo, Jr., Complainant, Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionJul 14, 2000
05990623 (E.E.O.C. Jul. 14, 2000)

05990623

07-14-2000

Higinio Elizondo, Jr., Complainant, Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.


Higinio Elizondo, Jr. v. Department of Housing and Urban Development

05990623

July 14, 2000

Higinio Elizondo, Jr., )

Complainant, ) Request No. 05990623

) Appeal No. 01980747

) Agency No. FW-95-37

) Hearing No. 310-97-5455X

Andrew M. Cuomo, )

Secretary, )

Department of Housing and Urban )

Development, )

Agency. )

____________________________________)

DECISION ON REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Higinio

Elizondo, Jr., v. Andrew M. Cuomo, Secretary, Department of Housing

and Urban Development, EEOC Appeal No. 01980747 (March 18, 1999).<1>

EEOC Regulations provide that the Commission may, in its discretion,

reconsider any previous Commission decision 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).

For the reasons set forth herein, it is the decision of the Commission to

deny the request but to reconsider the prior decision on its own motion.

ISSUE PRESENTED

Whether the rights provided in the prior decision should be amended

to allow the complainant an opportunity to establish an entitlement to

attorney's fees.

BACKGROUND

The complainant filed a formal complaint in 1995 in which he alleged

that his non-selection for the position of Supervisory EEO Specialist,

GS-14 (the Position), was discriminatory. Both an administrative

judge (AJ) and the agency found discrimination, and the only issue on

appeal was whether the complainant had received the appropriate remedy.

The complainant made several arguments on appeal, the primary ones being

that he should have been placed into the Position at the GM-15 level and

that the promotion should not have been limited to the period between

when he was non-selected and his retirement in December 1995. Finally,

the complainant argued that he was entitled to an award of attorney's

fees as well as interest on his back pay award.

The prior decision found that, because the complainant was at the GS-13

level at the time of his non-selection, it was appropriate to place him

into the Position at the GS-14 level. Regarding the duration of the

promotion, the decision found that, absent a showing that the complainant

was constructively discharged, the agency was not required to place him

into the Position beyond the date he voluntarily retired. Finally,

although the decision found that the complainant was entitled to interest

on his back pay award, it also found he was not entitled to an award of

attorney's fees insofar as there was no evidence that he had ever been

represented by an attorney.

In support of his request for reconsideration, the complainant reiterates

that he should have been placed into the Position at the GM-15 level

and that his placement into the Position should extend beyond the date

he retired. The complainant also reiterates that he is entitled to an

award of attorney's fees.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument or evidence which tends to establish that any of the

criteria of 29 C.F.R. � 1614.405(b) is met. In order for a case to

be reconsidered, the request must contain specific information which

meets the requirements of this regulation. It should be noted that the

Commission's scope of review on a request to reconsider is limited. Lopez

v. Department of the Air Force, EEOC Request No. 05890749 (September 28,

1989). Furthermore, a request to reconsider is not "a form of second

appeal." Regensberg v. United States Postal Service, EEOC Request

No. 05900850 (September 7, 1990); Spence v. Department of the Army,

EEOC Request No. 05880475 (May 31, 1988).

Having considered the complainant's request, the Commission finds no

basis for disturbing the prior decision's rulings regarding either the

grade level at which the complainant was placed into the Position or

the duration of that placement. Furthermore, the Commission finds the

complainant has not demonstrated that, based on the evidence that was in

the record at the time, it was erroneous for the decision not to award

attorney's fees. Accordingly, it is the decision of the Commission to

deny the complainant's request for reconsideration.

As noted, the complainant has submitted a letter from an attorney

to the agency dated July 8, 1998, stating that she was representing

him at that point. Not only does that letter postdate the finding

of discrimination, but we note that the attorney had no involvement

with the request for reconsideration. Therefore, it is not apparent

that this individual performed any work for which fees are available.

Nonetheless, the letter does support a finding that the complainant

had an attorney at some point during the processing of his complaint.

Therefore, the Commission shall exercise its authority and reconsider

the prior decision on its own motion for the limited purpose of providing

the complainant with the rights pertaining to the recovery of attorney's

fees.<2> 29 C.F.R. � 1614.405(b).

CONCLUSION

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission denies the

request but reconsiders the decision on its own motion. The decision

in EEOC Appeal No. 01980747 remains the Commission's final decision,

except as MODIFIED herein. The agency shall comply with the Order in

our prior decision, as restated below. There is no further right of

administrative appeal on the decision of the Commission on this request

for reconsideration.

ORDER

The agency is ORDERED to take the following remedial actions:

1. The agency shall retroactively promote the complainant into the

position of Supervisory EEO Specialist, GS-14, for the period from when

the first of the four vacancies in question was filled to December

31, 1995. In conjunction with this action, the agency shall pay the

complainant back pay and other benefits to which he would have been

entitled, including an adjustment to his retirement annuity.

2. The agency shall determine the appropriate amount of back pay,

with interest, and other benefits due the complainant, pursuant to 29

C.F.R. � 1614.501, no later than sixty (60) calendar days after the date

this decision becomes final. The complainant shall cooperate in the

agency's efforts to compute the amount of back pay and benefits due,

and shall provide all relevant information requested by the agency.

If there is a dispute regarding the exact amount of back pay and/or

benefits, the agency shall issue a check to the complainant for the

undisputed amount within sixty (60) calendar days of the date the

agency determines the amount it believes to be due. The complainant may

petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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:

__07-14-00____ _____________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2These rights appear under the heading �ATTORNEY'S FEES (H1199)� in the

set of rights attached to this decision. They do not provide for an award

for attorney's fees, but, rather, afford the complainant an opportunity to

submit a fee petition to the agency to recover provable fees and costs.

As noted in the prior decision, the claim for such fees only pertains to

the complainant's Title VII claim insofar as a complainant has no legal

entitlement to attorney's fees under the ADEA. See Palmer v. General

Services Administration, 787 F.2d 300 (8th Cir. 1986).