Reginald Quick, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 22, 2000
01992365 (E.E.O.C. Mar. 22, 2000)

01992365

03-22-2000

Reginald Quick, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Reginald Quick, )

Complainant, )

) Appeal No. 01992365

v. ) Agency No. 971558

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his request for attorney's fees in connection with a

complaint of unlawful employment discrimination in violation of Section

501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et

seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. � 1614.405). The issue on appeal

is whether the agency properly calculated the amount of attorney's fees

and costs to which complainant is entitled.

BACKGROUND

The record reveals that the agency issued a FAD finding that complainant

had been discriminated against when he was terminated from his temporary

file clerk position on May 27, 1997, and when he was denied reasonable

accommodation for his disability.<2> The FAD included instructions

for submitting a fee petition to claim attorney's fees and costs.

Complainant's attorney (CA) submitted a fee petition dated December 4,

1998, and received by the agency on December 11, 1998, requesting

$3,106.97 in fees and costs.

The agency issued a FAD awarding $250.00. It concluded that while CA

was retained on November 4, 1998, the agency was not notified of this

representation until December 10, 1998, when it received a written

notification, postmarked December 3, 1998. Citing Office of Federal

Operation's decisions and EEOC Regulation 37,644, 37,660 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. � 1614.501(e)(1)(iv)),

the agency concluded that it was not required to pay fees generated before

the agency had reasonable notice of representation. While acknowledging

that written submissions to the agency signed by the representative

constitute notice, the agency averred that it received no such submissions

until December 10, 1998. Because CA's fee petition indicated that all

services were provided to complainant prior to December 10, 1998, the

agency determined that payment for these services would not be made,

with the exception of two hours to review the case and decide whether to

take it. The fee petition indicated that CA's hourly rate was $125.00

and the agency thus awarded $250.00 in fees and costs.

On appeal, complainant makes no responses to the agency's arguments.

The agency requests that its FAD be affirmed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.501(e)(1)(iv) requires that attorney's

fees be paid for services performed by an attorney after the filing of a

written complaint, provided that the attorney provides reasonable notice

of representation to the agency. An exception within this regulation

allows fees to be paid for a reasonable period of time prior to the

notification of representation for any services performed in reaching a

determination to represent the complainant. Moreover, the regulation

also notes that written submissions to the agency that are signed by

the representative constitute notice of representation.

After a thorough review of the record, we find that CA failed to notify

the agency of her representation until December 10, 1998, when the

agency received the written notification mailed on December 3, 1998. The

record contains no written submissions to the agency signed by CA dated

prior to December 10, 1998, and CA does not allege on appeal that such

submissions exist. While the fee petition she submitted includes charges

for a telephone call made to an agency official on December 3, 1998,

CA does not argue that these calls provided reasonable notification of

her representation to the agency. Moreover, we are unable to find any

precedent holding that a telephone call from the attorney to the agency

constitutes reasonable notification of representation. In fact, in the

past the Office of Federal Operations has found that such contact does

not constitute notice of representation. See Atienza v. Department of

the Navy, EEOC Appeal No. 01872727 (May 24, 1988).

Because the fee petition indicates that no services were performed after

CA provided the agency with notification of her representation, the

agency was correct in concluding that attorney's fees need not be paid,

with the exception of services rendered by CA in determining whether

to represent complainant. The Commission has found that an attorney

may reasonably expend up to two hours to make a determination regarding

whether to represent a complainant. See Vincent v. Department of the Army,

EEOC Request No. 05941012 (February 27, 1996). As CA states in her fee

petition that her hourly rate is $125.00, the agency was correct in

awarding $250.00 in attorney's fees.

Accordingly, the agency's decision to award complainant $250.00 in

attorney's fees was proper and is AFFIRMED.

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:

3/22/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 This FAD was issued after an EEOC Administrative Judge (AJ) issued

a recommended finding of discrimination. The agency agreed with the

AJ's finding of discrimination, but believed that not all the �pertinent

principles of law� were applied in the RD, and therefore did not adopt

it in full.