[Redacted], Kiara R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022001130 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kiara R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001130 Hearing No. 460-2016-00126X Agency No. 4G-770-0003-16 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final decision concerning her equal employment opportunity (EEO) complaint alleging 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 worked as an EAS-23 Manager, Customer Service Operations (MCSO), at the Agency’s North Houston Post Office in Houston, Texas. On December 3, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when, on September 21, 2015, she received notification that her application had been rejected for an EAS-25 MCSO position. The Agency accepted the complaint for EEO investigation. 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. 2022001130 2 Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, and the AJ held a hearing on November 15, 2016. On December 8, 2016, the AJ issued an interim bench decision finding the Agency liable for discriminating against Complainant based on sex and directed the parties to file submissions on damages. The AJ issued a decision on liability and damages on October 9, 2019. The AJ concluded that the Agency discriminated against Complainant based on sex and determined that Complainant was entitled to make-whole relief. As part of that relief, the AJ ordered the Agency to either retroactively promote Complainant to an EAS-25 MCSO position or to offer her a substantially equivalent position; to pay her back pay and other benefits, with applicable interest; to pay $5,490 in attorney’s fees and costs to the estate of Complainant’s former attorney (“Attorney1”), who died in 2017; to post a finding of discrimination notice; and to provide EEO training to the responsible management official. On November 6, 2019, the Agency issued a final order (FAD1) adopting the AJ’s finding that Complainant proved that the Agency subjected her to discrimination as alleged and agreeing to implement the ordered relief. Subsequently, on February 18, 2020, Complainant filed an appeal with EEOC for a determination as to whether the Agency had complied with FAD1. The Commission docketed the appeal as EEOC Appeal No. 2020003876. On September 2, 2021, the Commission issued a decision in Appeal No. 2020003876, modifying the Agency’s determination that it fully complied with FAD1. The Commission ordered remedial relief and the following provision regarding attorney’s fees. If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney’s fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney’s fees in accordance with 29 C.F.R. § 1614.501. On November 10, 2021, the Agency issued a Final Agency Decision - Attorney’s Fees (FAD2), finding Complainant was not entitled to attorney’s fees. The Agency stated, the Commission instructed “[Complainant’s] attorney to submit a verified statement of fees to the Agency.” The Agency stated, instead, Complainant submitted “copies of invoices from a law firm and money orders for fees that [Complainant] purportedly paid to an attorney.” The Agency stated that it did not receive a verified statement of fees. The Agency stated that the burden to show entitlement to fees is on the Complainant and Complainant only presented vague information. The instant appeal from Complainant followed. 2022001130 3 On appeal, Complainant stated, in 2019, she hired an attorney (“Attorney2”) to respond to the Agency’s noncompliance with FAD1. Complainant stated that the invoices she presented is all she has from Attorney2 as their relationship ended poorly and she had to complete her case without an attorney. Complainant provided copies of three money orders, each dated August 2, 2019, addressed to Attorney2, and in the amount of $1,000. Complainant provided invoices dated December 13, 2019, February 3, 2020, and July 1, 2020, from the law firm of Attorney2. The invoices reflected the following activity: Billed Time Date Activity Time Rate Amount 7/17/19 Initial consultation with Attorney2 155.60 155.60 9/28/19 Emails, review of documents 1:00 250.00 250.00 10/31/19 Review of files and settlement letter 2:00 250.00 500.00 1/1/20 56 emails in January 3:36 250.00 900.00 1/10/20 Consult with Complainant 150.00 150.00 02/18/20 Certified Mail to EEOC 7.40 TOTAL Billed $1963.00 The invoices totaled $1,963.00 for services and expenses. The July 2020 invoice showed a credit balance of $1192.60, reflecting a payment of $155.60 on July 16, 2019, and of $3000 in August 2019. The underlying appeal, EEOC Appeal 2020003876, reflects that Complainant’s original attorney, Attorney1, passed in 2017; the AJ decision was issued in October 2019; FAD1 was issued in November 2019; and there was communication between the Agency and Complainant’s subsequent attorney, Attorney2, in January and February 2020.2 In an internal September 12, 2021 email, the Agency’s legal representative stated, “it’s just [Complainant] STILL trying to recoup the $3,000 she paid her attorney.” The representative noted that Attorney 2 withdrew after filing her appeal. ANALYSIS AND FINDINGS In appropriate circumstances, this Commission may award a Complainant reasonable attorney’s fees and other costs incurred in the processing of a complaint regarding allegations of discrimination in violation of Title VII. See 29 C.F.R. § 1614.501(e)(1). Indeed, a finding of discrimination raises a presumption of entitlement to an award of attorney's fees, and any such award of attorney's fees or costs must be paid by the agency that committed the unlawful discrimination in question. See 29 C.F.R. §§ 1614.501(e)(1)(i), (ii). 2 Notably, the record includes a letter dated February 14, 2020, from Attorney2 to the Agency informing it of her representation of Complainant and alleging noncompliance with FAD1. 2022001130 4 In the decision for EEOC Appeal No. 2020003876, the Commission awarded Complainant attorney’s fees if she had legal representation for prevailing in that appeal as the Commission found that the Agency did not fully comply with FAD1. Here, on appeal for FAD2, Complainant stated, in 2019, she hired an attorney to respond to the Agency’s noncompliance with FAD1. Complainant stated that the invoices she presented is all she has from Attorney 2 as their relationship ended badly and she had to complete her case pro se. Complainant provided copies of three money orders, each dated August 2, 2019, addressed to Attorney 2, and in the amount of $1,000. Complainant provided invoices dated December 13, 2019, February 3, 2020, and July 1, 2020 from Attorney 2’s law firm. The invoices reflected, in 2019, Complainant paid $3,155.60 to the law firm, and, in 2020, had a credit balance of $1,192.60. The invoices indicate, on specific dates between July 17, 2019 and January 10, 2020, the Attorney had an initial consultation with Complainant, sent emails and reviewed documents, reviewed files and a settlement letter, composed or addressed 56 emails, and had a follow-up consultation with Complainant. The record reflects that the Agency communicated with and received communication from Attorney2 during this timeframe. The invoices reflect that approximately 8.5 hours was spent on Complainant’s matter at a rate of $150 per hour. In addition, the invoices show that $7.40 was spent to send certified mail to EEOC. The total for attorney’s fees and expenses is $1963.00. Based on the totality of the circumstances here, including the total amount of attorney’s fees billed and documentation presented, we disagree with the Agency’s FAD2 determination that Complainant is not entitled to fees for legal representation and services to allege noncompliance with FAD1. Complainant requested $3,000 for attorney’s fees and expenses, however, we find $1963.00 appropriate. The record reveals, as of July 1, 2020, Complainant had a credit balance of $1,192.60 with Attorney2’s law firm, which should, upon her request, be refunded. To the extent that the Agency has not paid the aforementioned attorney’s fees and costs, it shall do so. See 29 C.F.R. § 1614.501(e)(2). Also, we find attorney’s fees and costs in furtherance of this appeal appropriate if Complainant had legal representation for it. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s determination of no attorney’s fees in FAD2 and REMAND the matter to the Agency consistent with this decision and the Order below. 2022001130 5 ORDER Within 60 days of the date this decision is issued, to the extent that it has not already done so, the Agency shall pay $1955.60 in attorneys’ fees and $7.40 in related costs to Complainant for legal representation and expenses related to alleging noncompliance of FAD1. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2022001130 6 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2022001130 7 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 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 January 31, 2023 Date