04980028
01-14-2000
) Petition No. 04980028
Rashidah I. Hasan v. United States Information Agency
04980028
January 14, 2000
Rashidah I. Hasan, )
Petitioner, )
) Petition No. 04980028
v. ) Appeal No. 01956243
) Agency No. OCR-0863-47
Joseph D. Duffy, )
Director, )
United States Information Agency, )
Agency. )
)
DECISION
On July 20, 1998, petitioner requested enforcement of the Order set forth
in Hasan v. United States Information Agency, EEOC Appeal No. 01956243
(October 16, 1997). Pursuant to that Order, the Commission directed
the agency to redress petitioner following a finding of discrimination.
The Commission accepts the petition pursuant to the provisions of 29
C.F.R. �1614.503.<1> For the reasons set forth below, the Commission
grants the petition.
BACKGROUND
At the time of the complaint, petitioner was employed by the agency as
a News Reporter, GS-11. Believing she was a victim of discrimination,
petitioner sought EEO counseling and, subsequently, filed a complaint
on March 8, 1993, alleging the following: (1) the agency informed her
that she must begin her employment as a News Assistant at the GS-4
level, and failed to consider her prior professional experience; (2)
the agency refused to allow her to retest for the New Writer position
and denied her coaching before her initial testing; (3) she was denied
the opportunity to test for the International Radio Broadcaster position;
(4) she was excluded from writing, training and travel assignments which
provided valuable experience and exposure; and (5) she was subjected
to offensive requests and racist comments. The agency issued a final
agency decision ("FAD") finding discrimination as to claims 2 and 4 but
finding no discrimination as to claims 1, 3 and 5. The agency agreed
to take the following corrective action: to change petitioner's entry
level from GS-04 to GS-07 effective March 2, 1992; to determine the
appropriate amount of backpay and other employment benefits; to take
appropriate action against the discriminating management officials; to
issue assignments in an equitable manner; to ensure against retaliation;
and to award attorney fees.
In the prior decision, we affirmed the FAD. We also affirmed the agency
ordered remedies, except where the agency found that petitioner failed
to substantiate her claim of compensatory damages, we ordered the agency
to conduct a supplementary investigation into the issue.
In her petition, petitioner contends that contrary to the prior Order,
the agency failed to: (1) permanently promote her to a GS-13 position;
(2) determine the correct amount of backpay; (3) make a determination
regarding compensatory damages;<2> (4) take appropriate action against
the discriminating management official; (5) prevent retaliation; and (6)
award attorney fees. The agency responds by stating that: it was only
required to promote petitioner to the GS-12 level; petitioner received
the appropriate sum of $23,261.69 in backpay; the responsible management
official was reassigned to a non-supervisory position in another office
and building; the petitioner failed to provide evidence to support
retaliation; and it paid attorney fees for the amount submitted in
petitioner's invoice dated June 12, 1995.<3>
ANALYSIS
The Commission's regulations provide that an aggrieved person may
petition the Commission for enforcement of a decision issued under
petitioner Commission's appellate jurisdiction. 29 C.F.R. �1614.503(a).
In the case herein, the Commission sought to make petitioner whole by
restoring her "to a position where [she] would have been were it not for
the unlawful discrimination." Franks v. Bowman Transportation Co., 424
U.S. 747, 764(1976). At issue is whether the agency has fully complied
with the Commission's prior Order.
The prior Order required the agency to ultimately promote petitioner
to a GS-12 level position. At the time of the petition, petitioner
occupied a temporary GS-13 position. Prior to the temporary GS-13
position, petitioner occupied a GS-12 position. Since the agency was
only required to place petitioner in a GS-12 position, we find that the
agency complied with this portion of the prior Order.
In calculating the ordered backpay, the agency reviewed the information
in petitioner's Official Personnel Folder and determined petitioner was
entitled to $23,261.69 in backpay. Petitioner hired an expert witness,
who determined that the proper amount backpay ranged between $60,110.00
and $65,623.00. However, the expert based his estimate on inaccurate
information. The estimate assumed that petitioner's correct starting
grade was at the GS-09 level instead of the GS-07 level prescribed by
the prior Order. The estimate also consistently placed petitioner at
grade levels beyond that ordered. As a result, we find that petitioner's
position untenable and hold that the agency's payment of backpay in the
amount of $23,261.69 complied with the prior Order.
As for the agency's actions against the responsible management official
and the alleged retaliation, we find that the record does not support
either of petitioner's assertions. While petitioner appears disturbed by
the fact that the management official received a favorable reassignment,
we find that the prior Order did not state that the responsible management
official be placed in an unfavorable position. The prior Order directed
the agency to take appropriate action against this individual. We find
that by removing supervisory duties from the individual along with
reassigning him to another office in a different building, the agency
complied with the prior Order. We further find that petitioner failed
present credible evidence of retaliation. As a result, we find that
the agency has not violated this portion of the prior Order.
Finally, regarding attorney fees, petitioner asserts that the $3,637.50
awarded by the agency was deficient. We agree with the petitioner and
find that the agency should have paid attorney fees for time expended
by petitioner's attorney through the filing of the prior appeal.
The agency reasons that since petitioner did not prevail in her appeal,
she should not receive attorney fees for anytime beyond the issuance
of the agency's final decision on July 18, 1995. Additionally, the
agency states that while petitioner's attorney initially submitted
that his hour rate was $125.00, he now contends that his rate should be
$150.00 per hour. Petitioner's attorney provides that his $125.00 per
hour rate was his rate during settlement attempts, but since the case
did not settle, he requests his customary rate of $150.00 per hour.
We fail to understand petitioner's rationale for the change and find
no plausible reason for petitioner's attorney to change his quoted
rate during the case. As a result, we find that the agency's use of
$125.00 was proper in this matter. However, we also find that the agency
improperly limited petitioner's award to the time expended prior to her
appeal to the Commission. While the agency asserts that petitioner did
not prevail on appeal, we find that the prior decision modified the
agency's final decision and ordered the agency to conduct an inquiry
into the compensatory damages issue. The Order also expressly directed
the agency to pay the petitioner appropriate attorney fees as a result
of the appeal. Accordingly, we find that the agency has not complied
with this portion of the prior Order.
Based upon a review of the record, and for the reasons set forth herein,
the Commission finds that the agency has not complied fully with the
Order set forth in EEOC Appeal No. 01956243 (October 16, 1997). The
Commission therefore orders the agency to comply with the Order in
01951472 by taking the actions set forth in the Order below.
ORDER (C1092)
Within 30 days of the date this decision becomes final, we ORDER the
agency to pay petitioner's attorney fees for time expended pursuing
this case, including the filing of this petition. 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 evidence that the ordered corrective actions have been taken.
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).
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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 14, 2000
_______________ ___________________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to petitioner, petitioner's representative
(if applicable), and the agency on:
1 On 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.
2 After petitioner filed this petition, she submitted to the agency
her evidence relating to compensatory damages. Based on the submitted
evidence, the agency awarded and petitioner accepted the sum of $8,000.00
in compensatory damages.
3 The agency asserts that this pre-appeal invoice best represents the
correct amount due in attorney fees because the Commission affirmed
the agency's final decision on appeal which means petitioner was not a
prevailing party on appeal and not entitled to additional attorneys fees.