01991009_r
07-06-2001
Ruth M. Jaramillo v. United States Postal Service
01991009
July 6, 2001
.
Ruth M. Jaramillo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991009
Agency No. 4E-800-2235-93
DECISION
Complainant file an appeal with this Commission from an agency decision
pertaining to her complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On September 23, 1993, complainant filed a formal complaint claiming
that she was discriminated against when she was terminated, effective
August 13, 1993, for customer complaints and cash shortages. Following
an investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a Recommended Decision finding
discrimination based on age. The agency did not adopt the AJ's findings.
Complainant filed an appeal from the final agency decision.
On appeal, the Commission affirmed the AJ's decision. The agency was
ordered to reinstate complainant to her former position, provide back pay,
interest, seniority, leave, other employee benefits, and �any incurred and
reasonable attorney's fees.� Jaramillo v. United States Postal Service,
EEOC Appeal No. 01964901 (August 17, 1998).
On October 8, 1998, the agency issued a decision which is the subject
of the instant appeal. The agency concluded that complainant was not
entitled to attorney's fees and costs. Citing the prior Commission
decision, the agency noted that age was the only accepted claim.
The agency concluded that complainant was not entitled to such payment
because the ADEA does not provide for attorney's fees and costs at the
administrative level.
The Commission has consistently held that the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. does
not provide for the award of attorney's fees for Federal sector
complaints at the administrative level. See Seymour v. Department of
Veterans Affairs, EEOC Request No. 05900257 (July 20, 1990); Anderson
v. Department of the Navy, EEOC Appeal No. 01960716 (August 27, 1998).
The Commission does not have the authority to order a Federal agency to
pay attorney's fees in administrative ADEA cases due to the doctrine of
sovereign immunity. In this case, the doctrine of sovereign immunity
means that Congress made no provision for attorney's fees in the amended
ADEA so it did not expressly waive its immunity. Thus, the Federal
government cannot be held liable for attorney's fee in administrative
ADEA cases.
In the instant case, our prior decision clearly noted that while
complainant's complaint also alleged discrimination based on national
origin, it was not accepted as a basis or addressed by the AJ or agency.
The national origin claim was considered abandoned by both complainant
and the agency. Therefore, the finding of discrimination was based
solely upon age and the agency's denial of attorney's fees and costs
was appropriate.
Accordingly, the agency's decision not to pay attorney's fees and costs
was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 6, 2001
__________________
Date