01975981
01-11-1999
Linda M. Rodgers, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Linda M. Rodgers v. Department of the Air Force
01975981
January 11, 1999
Linda M. Rodgers, )
Appellant, )
)
v. ) Appeal No. 01975981
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
The Commission finds the agency committed no reversible legal error
in its June 4, 1997 final decision (FAD-2<1>), which found appellant
was not entitled to attorney's fees as a matter of law. We agree,
and find no arguments in appellant's July 23, 1997 appeal to reach a
contrary conclusion.<2> We find appellant never retained an attorney
to represent her in this matter, and never notified the agency she
was represented by counsel as she was required to do pursuant to 29
C.F.R. �1614.501(e)(iv). On appeal, filed by appellant through her
father, appellant concedes she was never represented by counsel when she
declares, in relevant part, as follows: "A service [presumably by an
attorney] was performed and a final report was provided. This report
concluded with an offer as a representative for a stated retainer fee.
However, the determination was made to pursue the complaint in the
manner as has occurred." (Emphasis added.) We find, in this regard,
that appellant was represented by her father.
FAD-2's denial of attorney's fees is hereby AFFIRMED.<3>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
January 11, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1In FAD-1, dated March 18, 1997, and received by appellant on March 20,
1997, according to appellant's notice of appeal, the agency found
appellant had been discriminated against on the basis of disability when
she was removed, on March 22, 1988, from her position of Computer
Operator.
2We find appellant's appeal, which is not entirely clear, of FAD-2 timely,
in the absence of evidence as to when she received FAD-2.
3We note the agency issued FAD-3, dated July 18, 1997. FAD-3, which
appellant does not reference in her July 23, 1997 appeal, purported
to modify FAD-1's determination pertaining to the question of equitable
relief, in particular, interest on back pay. FAD-3 averred that appellant
was entitled to such relief. In its response, which is also not entirely
clear, to appellant's July 23, 1997 appeal, the agency has, inter alia,
represented that appellant received back pay, with interest, on August
22, 1997. To the extent appellant contends she has not received the
appropriate equitable relief due her in this matter, the Commission
refers appellant to 29 C.F.R. �1614.504 ("Compliance with settlement
agreements and final decisions").