07A30063
03-23-2004
Jose L. Sanchez-Garcia, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Jose L. Sanchez-Garcia v. Department of Homeland Security
07A30063
March 23, 2004
.
Jose L. Sanchez-Garcia,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 07A30063
Agency Nos. I-01-H015, I-01-H022<1>
Hearing Nos. 110-A2-8309X, 110-A2-8046X
DECISION
Following its January 6, 2003 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) award of $4,875.00 in attorney's
fees following a finding by the AJ that the agency discriminated against
complainant on the basis of reprisal when he was removed from a detail.
The agency accepted the AJ's decision in all other respects but reduced
the attorney's fees award to $696.43. We therefore shall address only
the issue of attorney's fees in this decision. For the following reasons,
the Commission AFFIRMS the agency's final order.
Complainant submitted a "billing worksheet" from his attorney listing
a total of $4,875.00, based on 19.5 hours of work at $250.00 per hour.
We note initially that the agency does not argue that the hourly rate
is unreasonable. Instead, the agency argues that the billing worksheet
does not clearly identify the nature of the work performed and that
complainant's attorney did not participate in the hearing "and therefore
had little, if any, impact on the outcome of this case." See Memorandum
Explaining the Final Order, p. 6. Furthermore, the agency argues,
complainant filed two EEO complaints with a total of seven issues, but
he prevailed on only one issue, with the AJ dismissing the remaining
six. Id. Therefore, the agency argues, complainant is only entitled
to one-seventh of the $4,875.00, for a total of $696.43.
Complainant on appeal has not disputed the agency's calculations or its
reasoning in reaching the above figure. A review of the billing worksheet
confirms that it does not identify the nature or the work performed.
For example most of the entries merely state "call client," "draft
motion," and "conference [with] client," without explaining the subject
matter of the various telephone conversations, motions, or conferences.
Given the fact that complainant only prevailed on one issue, and the lack
of specificity in the billing worksheet, we find the award of $696.43
in attorney's fees was appropriate.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
affirms the agency's final order.
ORDER
(1) The agency, if it has not already done so, shall offer to place
complainant in the next available detail assignment similar to the one
he was denied. Complainant shall be given a minimum of fifteen (15)
days from receipt of the offer of placement within which to accept or
decline the offer. Failure to accept the offer within the time period
set by the agency will be considered a rejection of the offer, unless
complainant can show that circumstances beyond his control prevented a
response within the time limit.
(2) Within sixty (60) days of this decision becoming final, the agency,
if it has not
already done so, shall pay complainant $3000.00 in non-pecuniary
compensatory damages.
(3) Within sixty (60) days of this decision becoming final, the agency,
if it has not already done so, shall pay complainant $696.43 in attorney's
fees.
(4) Within (60) days of this decision becoming final, the agency, if
it has not already done so, shall train the second line supervisor who
rescinded complainant's detail in the area of retaliation and reprisal
under Title VII.
(5) If it has not already done so, the agency shall consider taking
disciplinary action against the second line supervisor. The agency shall
report its decision. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline.
(6) 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 correction action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Border Patrol Academy at the Federal
Law Enforcement Training Center in Glynco, Georgia, copies of the attached
notice. Copies of the notice, after being signed by the agency's duly
authorized representative, shall be posted by the agency within thirty
(30) calendar days of the date this decision becomes final, and shall
remain posted for sixty (60) consecutive days, in conspicuous places,
including all places where notices to employees are customarily posted.
The agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed
notice is to be submitted to the Compliance Officer at the address cited
in the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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 (M0701)
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 (S0900)
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. If you
file a request to reconsider and also file a civil action, 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
March 23, 2004
__________________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. (Title VII), has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The Border Patrol Academy at the Federal Law Enforcement
Training Center, Glynco, Georgia, confirms its commitment to comply with
these statutory provisions.
The Border Patrol Academy at the Federal Law Enforcement Training Center,
Glynco, Georgia, supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The Border Patrol Academy at the Federal Law Enforcement Training Center,
Glynco, Georgia, has been found to have retaliated against an employee
when the agency recalled him from a detail assignment. The Border Patrol
Academy at the Federal Law Enforcement Training Center, Glynco, Georgia,
has been ordered to provide compensatory damages to the affected employee
and provide training regarding reprisal under Title VII to appropriate
managers. The Border Patrol Academy at the Federal Law Enforcement
Training Center, Glynco, Georgia, will ensure that officials responsible
for personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The Border Patrol Academy at the Federal Law Enforcement Training Center,
Glynco, Georgia, will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1We note that complainant initially filed this complaint with the
Immigration and Naturalization Service which has since been subsumed by
the agency.