Lexie T.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 15, 20180120172968 (E.E.O.C. Nov. 15, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lexie T.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172968 Agency No. 2004-0659-2016104916 DECISION On September 7, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final Agency decision (FAD) dated August 30, 2017, denying her request for attorney fees in connected with the Commission’s reversal of the Agency’s dismissal on procedural grounds of her equal employment opportunity (EEO) complaint which alleged employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Registered Nurse II, Step 9 in the Emergency Room of the W.G. Bill Hefner VA Medical Center in Salisbury, North Carolina. On December 8, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her sex (female) and reprisal for prior protected EEO activity under Title VII. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120172968 2 The Agency dismissed the complaint for failure to state a claim and failure to timely initiate EEO counseling. In Lexie T. v. Department of Veterans Affairs, EEOC Appeal No. 0120171268 (May 16, 2017), the Commission reversed the dismissal, ordered the Agency to investigate Complainant’s complaint, and in an order titled “ATTORNEY’S FEES (H1016),” notified the parties that if Complainant was represented by counsel she was entitled to an award of reasonable attorney fees, and may apply for them with the Agency which must then process the fee claim. In June 2017, Complainant, by and through her attorney, submitted a petition to the Agency for attorney fees and costs. On August 30, 2017, the Agency issued a FAD denying all fees and costs. It reasoned that Complainant was not a prevailing party. The instant appeal followed. Thereafter, the Commission rescinded its decision in EEOC Appeal No. 0120171268 (May 16, 2017), and replaced it with a decision with the same docket number dated October 6, 2017. In the replacement decision, the Commission removed the order regarding attorney fees. Otherwise, the replacement decision remained the same. In the replacement decision, the Commission explained that “[a]n inapplicable order entitled “ATTORNEY’S FEES (H1016)” was inadvertently included in the May 16, 2017 decision.” On appeal, by and through her attorney, Complainant argues that she is a prevailing party, so she is entitled to recover attorney fees. In opposition to the appeal, the Agency argues that the FAD should be affirmed. ANALYSIS AND FINDINGS EEOC’s Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 11-9 & 11-10 (revised on Aug. 5, 2015) instructs that: A “prevailing party,” within the meaning of Section 706(k) of Title VII, 42 U.S.C. § 2000e-5(k), 42 U.S.C. § 2000e-5(k), is a complainant who has succeeded on any significant issue that achieved some of the benefit the complainant sought in filing the complaint. Texas State Teachers Ass’n v. Garland I.S.D., 489 U.S. 782 (1989)…. Applying the above, we find that Complainant at this point is not a prevailing party because she has not achieved some of the benefit she sought in filing her EEO complaint. Instead, the Commission simply ordered that the Agency continue processing her complaint. Accordingly, the FAD is AFFIRMED. 0120172968 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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. 0120172968 4 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 15, 2018 Date Copy with citationCopy as parenthetical citation