01a00348
03-20-2000
Lourdes Santiago, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Lourdes Santiago, )
Complainant, )
)
v. ) Appeal No. 01A00348
) Agency No. 91-10-0020
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a final
decision which the agency issued pursuant to 29 C.F.R. �1614.107.<1>
The decision, dated September 1, 1999, was received by the complainant
on September 22, 1999, The Commission accepts the complainant's appeal
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405).
In November 1994, the agency issued a prior decision on agency complaint
number 91-10-0020. Therein, the agency adopted an Administrative Judge's
findings that the agency had discriminated against the complainant based
on her sex, age, and prior EEO activity when the complainant's supervisor
subjected her to a hostile work environment from October 1989 until the
complainant's removal in February 1993; failed to provide her with a
performance appraisal in 1990 and 1991; placed her in GS-9 performance
standards for her GS-7 position; gave her a Notice of Unacceptable
Performance in December 1991, placed her on a Performance Improvement
Plan; and attempted to ensure the complainant's failure in her position.
The decision left open the termination and compensatory damages
issues which were pending before the Merit System Protection Board.
On January 20, 1995, the agency requested compensatory damages evidence
and determined that the 1993 removal action had to be rescinded due to
the cancellation of the Notice of Unacceptable Performance. In June 1995,
the agency issued a decision on the complainant's compensatory damages
claim. The agency previously had awarded the complainant attorney's
fees, backpay, and benefits. On appeal, the Commission awarded additional
compensatory damages in Santiago v. Department of the Army, EEOC Appeal
No. 01955684 (October 14, 1998). The Commission found that the complainant
had been able to work in late 1994 and early 1995 but had indicated to the
agency that she would not work. The Commission denied the complainant's
request for front pay because of her stand, that she was unable to work
for the entire Los Angeles District Corps of Engineers, was not supported
by the record. Accordingly, the Commission indicated that the agency
should provide the complainant with back pay and benefits from the
time she was removed to January 20, 1995, when the agency determined
that it would rescind the removal action and made inquiries of the
complainant aimed at her reinstatement. The Commission also ordered the
agency to solicit necessary documentation from the complainant to make a
determination on any attorney's fees and costs still due the complainant,
if any, in accordance with the Commission's decision. Neither party
requested reconsideration of the Commission's decision.
Complainant, through attorney A.V., then sought additional attorney's
fees. The agency subsequently issued the decision at issue in this appeal.
Therein, the agency denied the complainant $6,460.00 in attorney's fees
for work performed by attorney A.V. from November 18, 1997 through
September 19, 1998, on the ground that the work was performed in
furtherance of a second complaint filed by the complainant in 1998. The
record demonstrates that the agency dismissed the second complaint on
procedural grounds. The Commission dismissed the complainant's appeal
from the dismissal of the second complaint because it was untimely filed.
Santiago v. Department of the Army, EEOC Appeal No. 01991424 (October 12,
1999).
On appeal, the complainant seeks the attorney's fees she was denied. She
contends that the attorney's work was necessary during the pendency
of her first appeal because her health condition precluded her from
working and the agency had placed her in Leave Without Pay Status and had
discontinued her health insurance, contrary to the express findings of
discrimination and the agency's final decision that was on appeal. The
complainant contends that the attorney's services were incurred in
order to preserve or reinstate her status and her health insurance
and, therefore, were reasonably incurred in the processing of her EEO
complaint. The complainant also contends that the agency is precluded
by the doctrine of judicial estoppel from taking a position inconsistent
with that taken in its dismissal of the second complaint. The complainant
does not dispute the agency's representation in its decision that on
April 26, 1999, it issued the complainant and attorney A.V. a check in
the amount of $14,751 which represented $7550 in attorney's fees for work
performed by attorney A.V.; $900 in additional fees for preparation of
the Petition for Enforcement (EEOC Petition No. 04990036): $845 for
attorney L.H., $4500 for attorney A.S., $900 for expert witness fees,
and $56 for mailing costs.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's denial of the
$6,460.00 in attorney's fees for work performed by attorney A.V. from
November 18, 1997 through September 19, 1998, because the work was related
to the second complaint on which the complainant was not a prevailing
party.
The complainant contends that her placement in Leave Without Pay Status
and discontinuance of her health insurance in 1997 were contrary to the
agency's prior findings of discrimination. If so, attorney A.V. could
have filed a petition with the Commission to enforce the agency's November
23, 1994 decision pursuant to 29 C.F.R. � 1614.504. He did not do so.
Attorney A.V. also did not request reconsideration of the Commission's
October 14, 1998 finding that no front pay or benefits were due the
complainant after January 20, 1995. Therefore, both parties are bound
by that finding. Accordingly, the Commission finds that the agency's
subsequent placement of the complainant in Leave Without Pay Status and
discontinuance of her health insurance was properly the subject of the
second complaint. In order to receive attorney's fees for work performed
on the second complaint, the complainant would have had to have been a
prevailing party on that complaint. Finally, the complainant contends
that the agency is precluded by the doctrine of judicial estoppel from
taking a position inconsistent with that taken in its dismissal of the
second complaint. The Commission observes that the complainant's current
position is also inconsistent with that taken by the complainant in her
appeal from the agency's dismissal of the second complaint. In any event,
the parties are bound by the Commission's prior finding in this case that
no front pay or benefits were due the complainant after January 20, 1995.
Accordingly, the complainant is not entitled to additional attorney's
fees in this case.
CONCLUSION
For the above-stated reasons, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's September 1, 1999 decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 20, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative,
and the agency on:
_________________ ___________________________
DATE Equal Employment Assistant1On 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.