[Redacted], Rochelle F., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 4, 2022

Appeal No. 2021005202 (E.E.O.C. Apr. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marybeth C.,1 Petitioner, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Health Resources and Services Administration), Agency. Petition No. 2020003552 Appeal No. 0120170811 Agency No. HHS-HRSA-0244-2015 DECISION ON A PETITION FOR ENFORCEMENT The Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Appeal No. 0120170811 (June 11, 2019). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to comply with the Commission’s order with respect to attorney’s fees. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Human Resources Specialist, GS-13, at the Agency's facility in Rockville, Maryland. On May 7, 2015, Petitioner filed an EEO complaint, as amended, alleging that the Agency discriminated against her, denied her a reasonable accommodation, and subjected her to a hostile work environment based on her disability (musculoskeletal issues with her back, hip and leg; depression, anxiety) and in reprisal for her prior protected EEO activity. Following the investigation, the Agency provided Petitioner with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Petitioner's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2020003552 2 The decision concluded that Petitioner proved that the Agency denied her a reasonable accommodation for her disabilities and violated the Rehabilitation Act. as alleged. In its decision on remedies, the Agency awarded Petitioner $32,202.20 in compensatory damages and the restoration of leave in the amount of 94.5 hours. Petitioner subsequently appealed the Agency’s decision with respect to remedies to the Commission in EEOC Appeal No. 0120170811. Therein, the Commission issued an order specifying that the Agency had to increase Petitioner’s award of compensatory damages to $52,202.20. The Order further specified that the Agency pay Petitioner’s attorney's fees in the amount of $58,271.20, and costs in the amount of $170.60. The Order also specified that the Agency had to pay Petitioner an additional amount of attorney’s fees and costs related to the processing of EEOC Appeal No. 0120170811. The matter was thereafter assigned to a Compliance Officer and docketed as Compliance No. 2019004046 on June 20, 2019. On February 11, 2020, Petitioner, through her attorneys, submitted the petition for enforcement (PFE) at issue, contending that the Agency has not fully complied with the Commission’s order in 0120170811. Petitioner specifically asserts that she has received all ordered relief except attorney’s fees related to the processing of 0120170811. Petitioner states that she filed a timely submission for attorney’s fees in the amount of $31,710.50 on July 9, 2019, but the Agency has not issued its final decision in accordance with 29 C.F.R. § 1614.501(e). Petitioner asserts that the hourly rates for her attorneys have increased as a result of the Agency’s delay based on the new Laffey Matrix rates, and therefore she now requests a total of $32,955.50 in fees. The Agency subsequently issued its final decision on June 12, 2020, finding that Petitioner’s request for $32,955.50 in attorney’s fees was appropriate. The final decision directed Petitioner to complete the attached electronic payment transfer form and submit it to the Agency for payment. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.503(a) provides that a complainant may petition the Commission for enforcement of a decision issued under the Commission's appellate jurisdiction. In this case, Petitioner asserts that the Agency has not fully complied with the Commission’s order in 0120170811. Petitioner specifically asserts that she has received all ordered relief except attorney’s fees related to the processing of 0120170811. We note that subsequent to Petitioner’s PFE, the Agency issued its untimely final decision on June 12, 2020, finding that Petitioner’s request for $32,955.50 in attorney’s fees was appropriate. The final decision directed Petitioner to complete the attached electronic payment transfer form and submit it to the Agency for payment. We note, however, that the Agency has not submitted proof that the $32,955.50 in attorney’s fees has actually been paid to Petitioner. Proof of actual payment to Petitioner may include, copies of pay statements showing payment was made, a print screen of an electronic funds transfer to Petitioner for the amount in question, or other appropriate documentation showing that payment was made. See Complainant v. Dep’t of Transportation, EEOC Appeal No. 0120083127 (May 2, 2012). 2020003552 3 Accordingly, the Commission GRANTS the PFE and orders the Agency to submit evidence that the $32,955.50 in attorney’s fees has been paid to Petitioner in accordance with this decision and the Order below. Additionally, because Petitioner is a prevailing party in this PFE, we will also order the Agency to award Petitioner attorney's fees incurred as a result of her need to file this PFE. In finding that Petitioner is a prevailing party herein, we note that the Agency did not issue its final decision on attorney’s fees until after Petitioner filed the instant PFE. ORDER Within 120 calendar days after this decision is issued, the Agency is directed to provide evidence that payment of $32,955.50 in attorney’s fees has been submitted to Petitioner related to the processing of EEOC Appeal No. 0120170811. ATTORNEY'S FEES (H1016) If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she 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 the date this decision was issued. 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 Petitioner and his/her representative. If the Agency does not comply with the Commission’s order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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 Petitioner 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. 2020003552 4 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). If the Petitioner 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. PETITIONER’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 November 16, 2020 Date