[Redacted], Sallie M., and Alexandria P. 1, Complainants,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Nov 8, 2021

Appeal Nos. 2020003932, 2020003995 (E.E.O.C. Nov. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sallie M., and Alexandria P. 1, Complainants, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal Nos. 2020003932 & 2020003995 Hearing Nos. 490-2010-00012X, 490-2010-00013X Agency Nos. 4H-370-0056-09, 4H-370-0057-09 DECISION On June 25, 2020, Complainants filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 22, 2020, final orders concerning their equal employment opportunity (EEO) complaints 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. For the following reasons, the Commission AFFIRMS the Agency’s final orders. BACKGROUND In Sallie M. and Alexandria P. v. U.S. Postal Serv., EEOC Appeal Nos. 0120170599 and 0120176002 (Apr. 10, 2018), the Commission noted that an EEOC Administrative Judge (AJ) found the Agency liable for sexual harassment against Complainants, and that the sole issue before the Commission was whether the AJ properly reduced Complainants’ entitlement to attorney’s 1 This case has been randomly assigned pseudonyms which will replace Complainants’ names when the decision is published to non-parties and the Commission’s website. 2020003932, 2020003995 2 fees and costs.2 In response to the Complainants’ request for reconsideration, the Commission granted an additional $3,187 in attorney’s fees. EEOC Request Nos. 0520180407 and 0520180408 (Oct. 25, 2018).3 May 22, 2020, Final Decision On May 22, 2020, the Agency issued a final decision. In that final decision, the Agency explained that it received a petition for additional attorney’s fees on March 27, 2020 (Petition), which sought $40,778.84 in attorney’s fees. The Agency stated that it paid Complainant the attorney’s fees awarded by the AJ on October 28, 2016, and then, following the Commission’s October 25, 2018, decision, the Agency paid the remaining $3,187 in attorney’s fees. Subsequently, the Agency made additional payments for back pay, loss of wage earning capacity, and interest to Complainant 2 on November 2, 2018, and to Complainant 1 on June 25, 2019, and July 18, 2019. The final decision noted that the Complainants filed their Petition more than 16 months following the last payment to Complainant 2, and more than 9 months following the last payment to Complainant 1. The decision concluded that neither Complainant had shown they were a prevailing party for the purposes of receiving an award for additional fees. Further, the Commission’s regulations, at 29 C.F.R. § 1614.501(e)(2)(i) require that a petition for attorney’s fees be filed within 30 days of a decision that determines an entitlement to such fees. The Agency reasoned that, because the Complainants did not file the Petition until well beyond 30 days after the last payment was made, the petition was untimely. The instant appeal follows. On appeal, the Complainants argue that they are prevailing parties because they engaged in work subsequent to the AJ’s findings that allowed them to receive “their respective correct awards and achieved a substantial benefit as a result.” Complainants assert that they did not receive a final action that would ordinarily trigger the 30-day window in which they could petition for attorney’s fees. However, Complainants do not explain the significant gap in time between the conclusion of their attorneys’ services and filing the instant petition. ANALYSIS AND FINDINGS Title VII and the Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing Complainant. 29 C.F.R. § 1614.501(e); see also EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 11-1 (Aug. 5, 2015). Under 29 C.F.R. § 1614.501(e)(2)(i), upon a determination that a complainant is entitled to attorney’s fees, the complainant is required to submit a petition for attorney’s fees within 30 days. 2 The Agency did not issue a final order on attorney’s fees within 40 days; therefore, the AJ’s decision became the final action pursuant to 29 C.F.R. § 1614.109(i). 3 The Commission denied the Complainants’ request for reconsideration in all other aspects. 2020003932, 2020003995 3 The Commission has held that complainants must act with due diligence in the pursuit of their claims or the doctrine of laches, an equitable remedy under which an individual’s failure to act diligently could bar their claim, could be applied. See Walker v. Dep’t of the Treasury, EEOC Req. No. 05960679 (Dec. 12, 1997); O’Dell v. Dep’t of Health & Human Servs., EEOC Req. No. 05901130 (Dec. 27, 1990). The doctrine of laches may be applied to petitions for attorney’s fees. Green v. U.S. Postal Serv., EEOC Appeal No. 0120055275 (Apr. 12, 2007), req. for reconsid. den’d, 05200700533 (June 26, 2007). On appeal, Complainants’ attorneys wholly ignore the nine- month delay in the submission of the petition. Moreover, the petition itself affirms that Complainants’ attorney performed no work in furtherance of the complaints after June 28, 2019, except to mail one of the Agency’s checks to Complainant 1. The Commission finds that counsel failed to act with due diligence in pursuit of Complainants’ claims for attorneys’ fees and the doctrine of laches is properly applied herein. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision for the reasons set forth herein. 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. 2020003932, 2020003995 4 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. 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 (S0610) 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 (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. 2020003932, 2020003995 5 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 8, 2021 Date