Selene M. and Waneta F.,1 Complainants,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 20, 2016

0120150371 (E.E.O.C. Apr. 20, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Selene M. and Waneta F.,1
Complainants,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal Nos. 0120150370 & 0120150371

Hearing Nos. 570-2008-00084X & 570-2008-00085X

Agency Nos. 0068876009 & 0068876013

DECISION

Complainants filed their appeals with this Commission from the Agency's decision dated
September 29, 2014, regarding the amount of attorney’s fees awarded from a finding of
discrimination in their complaints of unlawful 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. and the
Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final decision awarding attorney’s fees.

BACKGROUND

During the period at issue, both Complainants worked as Country Program Directors at the
Agency’s International Programs Office in Washington, D.C.

On June 1, 2000, Complainant 1 (Selene M.) filed a formal complaint alleging that the Agency
discriminated against her on the bases of national origin (Puerto Rican), sex (female), and in
reprisal for prior protected activity when:

1. The Agency lowered Complainant 1’s performance assessment from a high level to a
medium level;
1 This case has been randomly assigned a pseudonym which will replace Complainants’ names
when the decision is published to non-parties and the Commission’s website.

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2. Complainant 1 did not receive a contribution rating increase or contribution award; and
3. Complainant 1’s workload increased and she was not offered adequate assistance.

Complainant 1 amended her formal complaint on April 25, 2002, to add the allegation that:

4. Complainant 1 was subject to wage-based discrimination and performed the same type
of work and received less pay than male workers.

On August 2, 2000, Complainant 2 (Waneta F.) filed an EEO complaint alleging that the
Agency discriminated against her on the bases of sex and age (53) when:

1. Complainant 2 was rated below the level she expected on her performance appraisal
and was denied a contribution rating increase and contribution award;

2. Complainant 2 was paid less than some male counterparts for equal work; and

3. The Agency did not acknowledge or compensate Complainant 2 for receiving a letter of
appreciation from the Department of State.

At the conclusion of the investigations, the Agency provided Complainants with a copy of the
reports of investigation and notice of their right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainants timely
requested a hearing and the AJ assigned to Complainant 1’s case held a hearing on April 28,
2003. The AJ issued a decision on December 20, 2004, finding no discrimination.

On December 21, 2004, the AJ assigned to Complainant 2’s case dismissed Claim 1 on the
grounds of untimely EEO counselor contact, Claim 2 as precluded by the doctrine of collateral
estoppel, and Claim 3 for failure to state a claim. As to Claim 2, the AJ concluded that the
doctrine of collateral estoppel required applying the adverse finding in Complainant 1’s case
against Complainant 2.

Both Complainants appealed. In EEOC Appeal No. 0120052957 (December 21, 2006), we
addressed Complainant 1’s appeal. The Commission affirmed the AJ’s findings with respect to
Claims 1-3. However, the Commission vacated the AJ’s findings with respect to Claim 4.
Specifically, the Commission found the AJ incorrectly concluded that “’bureaucratic inertia’ is
a valid defense to Complainant’s [Equal Pay Act (EPA)] claim.” We further found that “there
is ample evidence that the Agency was not merely asleep at the bureaucratic wheel, but was
aware of the fact that Complainant was doing work equal to the work male Level IV employees
were doing but was being paid less.” Accordingly, we remanded Claim 4 for a hearing to
determine whether the wage differential was based on a factor other than sex.

In EEOC Appeal No. 0120053131 (December 21, 2006), the Commission affirmed the AJ’s
findings with regard to Complainant 2’s first and third claims. However, the Commission
found that the doctrine of collateral estoppel did not apply to Complainant 2 because she was

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not a party to Complainant 1’s proceedings. Accordingly, we remanded claim 2 to the Agency
for a hearing on the merits.

Subsequently, the two remanded claims were assigned to a different AJ. That AJ issued an
Order on January 4, 2008, consolidating the remanded matters for a hearing, and held a
hearing on February 12-14, 2008. Both Complainants were represented by the same attorney.
On May 27, 2010, the AJ issued separate final decisions concluding the Agency had subjected
Complainants to discrimination based on sex as alleged under both Title VII and the EPA. As
a result, the AJ awarded each Complainant a retroactive promotion, as well as liquidated
damages and back pay for three years.

In addition, the AJ reviewed Complainants’ Consolidated Verified Petition for Attorney’s Fees
and Costs (“Fee Petition”) and found that an award of attorney’s fees was warranted.
Complainants’ attorney requested a total of $696,756.00 (plus an additional $13,787.42 in
costs) with regard to efforts expended on behalf of Complainant 1, and $479,275.50 (plus an
additional $8,947.42 in costs) for efforts expended on behalf of Complainant 2.

In her decision, the AJ accepted counsel’s hourly rate of $465 as reasonable pursuant to the
“Laffey Matrix.”

The AJ did not dispute the Agency’s contention that Complainants’ attorney’s fees should be
reduced because attorney’s fees are not available under the EPA. However, the AJ did not
agree with the Agency’s proposed 50% reduction because she determined that Complainants’
EPA and Title VII claims were closely aligned and not easily separated. Instead, the AJ
ordered a 10% reduction to account for counsel’s efforts on EPA matters.

In addition, the AJ reduced counsel’s request for both Complainants by 10% for work spent on
unsuccessful claims, 10% for excessive and redundant fees, and 5% for clerical work
performed by the attorney. With regard to Complainant 1, the AJ further disallowed 100
hours for clerical and technical tasks performed in preparation of the fee petition and 29.1
hours from counsel’s efforts on behalf of Complainant 1’s unsuccessful Motion for
Reconsideration. Similarly, the AJ disallowed 100 hours for the preparation of the Fee
Petition on behalf of Complainant 2.

Ultimately, the AJ awarded $409,320.90 in fees associated with Complainant 1’s claims, a
41.25% reduction from counsel’s request, and $288,279.07 in fees associated with
Complainant 2’s claims, a 39.85% reduction.

The AJ also found Complainants’ counsel properly documented his costs and expenses, but
reduced his request by 10% for costs and expenses associated with Complainants’ EPA
matters. Accordingly, the AJ awarded $12,840.52 and $8,436.04 for Complainant 1’s and
Complainant 2’s claims, respectively.

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The Agency subsequently issued final orders accepting the AJ’s findings of discrimination and
remedial orders. However, the Agency rejected the AJ’s award of attorney’s fees and costs,
and appealed that matter to the Commission. In EEOC Appeal Nos. 0720100046 and
0720100047 (September 7, 2012), the Commission noted the Agency accepted all portions of
the AJ’s findings and remedial awards with the exception of the award of attorney’s fees; thus,
the Commission confined its discussion to whether the AJ appropriately awarded attorney’s
fees.

The Commission noted the Agency argued the record demonstrated that at least 50% of the
work performed by Complainant’s counsel was dedicated to EPA matters. The Commission
stated the Agency argued that since Complainants’ counsel failed to segregate time spent on
EPA issues from time spent on Title VII issues, the Fee Petition should be reduced by 50%.
In addition, the Commission noted that the Agency argued a 20% deduction was warranted for
excessive and duplicative fees.

The Commission noted that Complainants argued that EPA violations are per se violations of
Title VII and thus, Complainants were entitled to their full complement of attorney’s fees. In
addition, the Commission noted Complainants argued the record did not support the Agency’s
arguments that the Fee Petition contained duplicative and excessive billing. The Commission
noted Complainants stated their counsel’s hours billed were justified and reasonable.

In its decision, the Commission recognized that neither party disputed counsel’s request for an
hourly rate of $465 in accordance with the Laffey Matrix. Thus, the Commission did not
address that part of the award.

The Commission found no abuse of discretion for the AJ’s 10% reduction of the award to
account for counsel’s efforts on EPA matters. However, the Commission found that the record
showed significant periods of effort were expended by Complainant’s counsel on more
uniquely EPA issues, and exercised its own discretion to apply an additional 10% across-the-
board reduction to the fees awarded by the AJ. The Commission also affirmed the AJ’s 10%
reduction of the award for the pursuit of unsuccessful claims, and affirmed a 10% deduction
for duplicative and excessive billing. Finally, the Commission found the AJ did not act
unreasonably in reducing the charges and fees for work that was “clerical” in nature. The
Commission determined the Agency should pay Complainant 1, $368,388.81 in attorney’s fees
and $12,840.52 in costs. The Commission determined the Agency should pay Complainant 2
$259,451.17 in attorney’s fees and $8,436.04 in costs. Additionally, the Commission ordered
the Agency to pay attorney’s fees for the appellate stage.

Subsequently, Complainant filed a request for reconsideration of the Commission’s decision in
EEOC Appeal Nos. 0720100046 and 0720100047. In EEOC Request Nos. 0520130063 and
0520130075 (May 1, 2014), the Commission denied Complainants’ requests. The Commission
reiterated its prior Order that the Agency should pay Complainant 1 $368,388.81 in attorney’s
fees and $12,840.52 in costs; pay Complainant 2 $259,451.17 in attorney’s fees and $8,436.04
in costs; and pay attorney’s fees for the appellate stage.

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Thereafter, Complainants submitted their “Verified Statement of Attorney Fees and Costs” for
work done at the appellate stage to the Agency. Complainants claimed 294.4 hours were
incurred jointly in defending the attorney’s fees and costs awarded by the AJ before the
Commission. Complainants noted the hourly rate charged by their attorney was $465.
Complainants requested a total of $136,896.00 in attorney’s fees for appellate work (294.4
multiplied by $465).

On September 26, 2014, the Agency issued a final decision on Complainants’ petition for
attorney’s fees and costs. The Agency noted that Complainants submitted a joint appeal to the
Commission arguing for more back pay and challenging the AJ’s award of attorney’s fees.
The Agency recognized Complainant submitted a 413-page brief entitled “Consolidated Brief
and Statement in Support of Their Appeals” and stated a large portion of the brief was devoted
to the issue of increasing Complainants’ back pay award. The Agency stated with regard to
attorney’s fees, Complainants put forth several arguments; however they were successful on
only one, regarding excessive/redundant charges.

The Agency stated of the 294.4 hours jointly claimed, excluding the 39.1 hours claimed by
counsel for preparing his verified statement of attorney’s fees, 255.3 hours were for claimed
work on the appellate brief. The Agency noted that 255.3 hours amounts to 6.39 weeks of
work, consisting of 40 hour weeks, which the Agency found was clearly excessive.

The Agency noted that although the billing records seemed detailed enough to determine the
number of hours expended on the excessive/redundant billing issue, it disputed the accuracy of
the billing records because counsel did not provide contemporaneous billing records to reflect
all the issues on which Complainants might ultimately prevail and only itemized the EPA and
the excessive/redundant billing issue. As a result of finding the records not to be
contemporaneous and therefore not accurate, the Agency argued attorney’s fees should be
calculated by dividing the attorney’s fees requested by 1/8 since Complainants prevailed on
only one issue out of eight raised. Thus, the Agency concluded Complainants were entitled to
an aggregate award of $14,839.44 (1/8 of $118,715.50).

The Agency also determined Complainants were entitled to reasonable attorney’s fees for the
preparation of counsel’s Verified Itemized Statement of Attorney’s Fees. The Agency noted
counsel’s submission consisted of: a 16-page legal argument; the attorney’s resume; the
attorney’s billing records; the attorney’s affidavit dated May 30, 2014; an affidavit by Attorney
X executed on December 18, 2009; the affidavit of Attorney Y, executed on December 11,
2009; and a second affidavit of Attorney X, executed on May 31, 2010.

The Agency noted Complainants’ attorney claimed 39.1 hours were devoted to reviewing the
Denial of Reconsideration (.2 hours) and the preparation of the verified statement of attorney’s
fees. The Agency argued that the requested amount of $18,181.50 (39.1 hours at a billing rate
of $465 an hour) was excessive. The Agency stated that it should have taken Complainants’
attorney no more than a single day to prepare his verified statement. The Agency noted that at

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his billing rate of $465, his fee award should only amount to $3,720.00. The Agency further
stated the amount would be rounded up for several hours of administrative/clerical work not
paid at the attorney rate. Thus, the Agency found $4,000.00 was reasonable for the attorney’s
preparation of a verified fee statement. The Agency determined Complainants were entitled to
payment of attorney’s fees in the aggregate amount of $14,839.44, plus $4,000.00 for the
verified statement of attorney’s fees, for a total aggregate fee award of $18,839.44.

In the instant appeal, Complainants explain that after the Agency appealed the AJ’s decision to
the Commission, their attorney submitted a brief in opposition to the Agency’s appeal
(Opposition Brief). Complainants’ claim that in preparing their Opposition Brief, they had to
survey all the Title VII sex discrimination and EPA work over the ten years in the two claims
to determine the reasonableness of the attorney’s fees required to achieve success.
Complainants note in their Opposition Brief they argued that the AJ’s decision not to reduce
fees by 50% for EPA claims was not an abuse of discretion. Complainants also note that they
argued that the AJ did not abuse her discretion by not reducing fees by 20% for excessive or
duplicative billing. Complainants state the Commission agreed with their Opposition Brief that
the AJ did not abuse her discretion in applying a 10% reduction for EPA claims and a 10%
reduction for excessive or duplicative billing. Complainants also note that in addition to their
Opposition Brief they submitted a separate Cross-Appeal on damages (back pay and benefits)
and attorney’s fees and costs.

Complainants note that within 30 days of their receipt of the Commission’s Denial of Request
for Reconsideration dated May 1, 2014, they submitted their Verified Statement of Attorney’s
Fees and Costs ("Verified Statement") incurred in defending against the Agency’s appeal of
their attorney’s fees award. Complainants note their Verified Statement contains
contemporaneous time records which were itemized by “date,” “work performed,” and “time”
expended, as well as a detailed description of each task performed. Complainants explain they
only sought compensation for the time periods and the work involved with their opposition to
the Agency’s appeal. Complainants clarified there were no time entries submitted for the later
time period of January 22, 2011 – January 7, 2012, when they were preparing their cross-
appeal.

Complainants note the Agency’s September 26, 2012 final decision omitted that Complainant’s
filed their Consolidated Opposition Brief on January 21, 2011, to defend against the Agency’s
appeal. Complainants note instead that the Agency only mentioned their later appeal brief in
support of their Cross-Appeal submitted on January 7, 2012. Complainants state the Agency
was unsuccessful in its demands for deductions to the AJ’s award of attorney’s fees.
Specifically, they note the Agency wanted a 50% reduction of attorney’s fees for work done on
EPA related issues, which Complainants opposed in their Opposition Brief. Complainants note
the Commission found the AJ’s 10% reduction was not an abuse of discretion. Complainants
also note the Agency sought a total 20% reduction of fees for being excessive and redundant,
which they opposed. Complainants note that the Commission found the AJ’s 10% reduction
for excessive and redundant fees was not an abuse of discretion. Thus, Complainants argue

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they were successful in opposing the Agency’s appeal and entitled to the attorney’s fees
claimed.

In addition, Complainants argue the Agency’s reduction of fees by 7/8 was improper.
Specifically, Complainants note the Agency deducted fees for arguments made in their cross-
appeal; however, they explain they had already excluded hours for work expended on the
unsuccessful claims presented in the cross-appeal. Thus, Complainants claim they were
entitled to the full amount of attorney’s fees requested and any further reduction by the Agency
was not warranted.

Subsequently on April 9, 2015, the Agency submitted its Agency Statement in Opposition to
Appeal of Attorney Fee Award. The Agency contained a section entitled “Erratum” noting
that at the time it prepared its September 26, 2012 decision, it mistakenly confused
Complainants’ Opposition Brief with their brief submitted on cross-appeal. The Agency noted
that when Complainants appealed the Agency’s September 26, 2012 decision to the
Commission, the Agency representative learned from Complainants’ statement in support of
their appeal that the billing records submitted were for the Opposition Brief and not the brief
submitted for the cross-appeal. The Agency noted it subsequently reviewed Complainants’
Opposition Brief and determined that the issues raised in it appeared consistent with the
attorney’s billing records. As a result, the Agency states Complainants should be compensated
for more money than determined in its September 26, 2012 final decision. However, the
Agency still rejects the amount of attorney’s fees requested by Complainants.

The Agency argues that Complainants prevailed on only one of the two issues identified in the
prior appeal. The Agency notes in its appeal of attorney’s fees, it argued the AJ’s 10%
reduction of attorney’s fees for work related to the EPA should be increased to a 50%
reduction. The Agency notes it further argued the AJ’s 10% reduction of attorney’s fees for
excessive and redundant billing should be increased to 20%. The Agency notes that in their
Opposition Brief, Complainants addressed the same issues. The Agency states Complainants
further argued the AJ erred in determining their prevailing sex based wage differential claim
under the EPA was distinct from their Title VII claim, thereby erroneously disallowing 10% of
reasonable attorney’s fees recoveries. The Agency’s final decision noted that the Commission
affirmed the AJ’s 10% reduction for EPA issues and imposed a further 10% reduction and
determined Complainant did not prevail on that issue. With respect to the second issue of
excessive/redundant billing, the Agency concluded Complainants prevailed.

The Agency notes that Complainants’ counsel identified 51 hours spent on the subject matter of
excessive and redundant charges. The Agency states that at the hourly rate of $465,
Complainants’ attorney should be awarded $23,715 in attorney’s fees for the one issue on
which he prevailed.

The Agency also states Complainants’ counsel is also entitled to attorney’s fees with regard to
the preparation of the verified fee statement. The Agency notes counsel’s billing records

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indicate that he expended 39.1 hours in preparation of his Verified Itemized Statement of
Attorney Fees for the appellate stage and an hourly rate of $465 for a total of $18,181.50.

The Agency notes the verified fee statements consist of a 16-page legal argument, counsel’s
resume (which counsel states was already completed), his billing records, his own affidavit,
and three affidavits of fellow attorneys (two of which were executed over five months before
the AJ’s May 28, 2010 decision). The Agency notes the last affidavit was also submitted to
the AJ prior to the AJ’s decision.

The Agency states it concluded it should not have taken more than eight hours for counsel to
prepare his verified statement, which amounts to $3,720.00 in attorney’s fees at counsel’s
hourly rate of $465. Noting that billing records were to be kept contemporaneously, the
Agency additionally concluded that compiling them should amount to no more than several
hours at an administrative or clerical rate, as opposed to the attorney’s hourly rate. The
Agency accordingly rounded up the fee award to account for compiling the billing records and
concluded that $4,000.00 was a reasonable rate for counsel’s preparation of the verified fee
statement.

Finally, the Agency states that while the Commission no longer applies a rule of
proportionality, the award of such excessive fees in this case would unreasonably encourage
protracted litigation on the peripheral issue of attorney’s fees. The Agency notes that in the
main case, counsel recovered $287,064.27 for Complainant 1 (in non-attorney’s fees) and
$135,255.10 for Complainant 2 (in non-attorney’s fees) and was compensated $648,906.47 in
attorney’s fees and costs. The Agency notes that counsel requests an additional $136,896.00
for a single appellate brief solely on the issue of attorney’s fees and the preparation of his
verified statement of attorney’s fees. The Agency argues that while the claimed amount is not
reasonable, the overall attorney’s fees recovery would also be disproportionate to
Complainants’ recovery on the merits.

ANALYSIS AND FINDINGS

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 EEOC’s Management Directive
110 (MD-110) (August 5, 2015) Chapter 11, Section VI. Fee awards are typically calculated
by multiplying the number of hours reasonably expended times a reasonable hourly rate, an
amount also known as a lodestar. See 29 C.F.R. § 1614.501(e)(ii)(B); MD-110, Chapter 11,
Subsection VI(F). Reasonable costs can include court reporter fees, transcripts, printing,
witnesses, photocopying, mileage, postage, telephone calls, or any other reasonable out-of-
pocket expense incurred by the representative in the normal course of providing
representational services. 29 C.F.R. § 1614.501(e)(2)(ii)(C); MD-110, Chapter 11,
Subsection VI(E).

The attorney requesting an award has the burden of proving, by specific evidence, entitlement
to the requested fees and costs. Koren v. U.S. Postal Service, EEOC Request No. 05A20843

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(Feb. 18, 2003). An application for attorney’s fees must include a verified petition
accompanied by an affidavit executed by the attorney of record itemizing each expense
comprising the attorney’s charges for legal services, together with bills, receipts, or other
appropriate documentation. 29 C.F.R. § 1614.501(e)(2)(ii)(B); MD-110, Chapter 11,
Subsection VI(F)(1). While the attorney is not required to record in great detail the manner in
which each minute of time was expended, the attorney does have the burden of identifying the
subject matters on which he spent his time by submitting sufficiently detailed and
contemporaneous time records to ensure that the time spent was accurately recorded. See
Spencer v. Dep’t of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003).

At the outset, we note in the Agency’s April 9, 2015 Agency Statement in Opposition to the
Appeal of Attorney’s Fee Award, the Agency admitted it erred in preparing its September 26,
2012 final decision and acknowledged Complainants’ counsel should be compensated for more
money than it previously stated. Thus, we consider the Agency’s April 9, 2015 submission to
constitute a new final decision awarding counsel $23,715.00 in attorney’s fees for 51 hours at
an hourly rate of $465 and $4,000.00 for preparation of the verified fee statement totaling
$27,715.00 in attorney’s fees.

Hourly Rate

Neither party disputed counsel’s request for an hourly rate of $465 in accordance with the
Laffey Matrix. Additionally, we note the Commission approved counsel’s hourly rate of $465
in our previous decision. Therefore, we shall not review the hourly rate.

Hours Expended

In the present case, we find counsel’s request for 255.3 hours for work spent on the prior
appeal to be excessive. We note the sole issue on appeal concerned whether the attorney’s fees
awarded by the AJ involved a mistake as a matter of law or constituted an abuse of discretion.
We find that a number of billable hours which were claimed appear to have been excessive
and/or duplicative for an attorney with the expertise possessed by Complainants’ counsel.
Upon review, we find that the 51 hours awarded by the Agency was sufficient to encompass
what we consider to be a reasonable amount of time to have spent on the prior appeal.

Fee Petition

In Black v. Dep’t of the Army, EEOC Request No. 05960390 (December 9, 1998), the
Commission adopted a reasonableness standard in addressing awards for prosecuting fee
petitions, finding it to be a better method than imposing arbitrary limits. For prevailing
parties, this means that while there are no longer caps on the number of hours that can be spent
on preparing and litigating the fee petition, that number must be not be too far out of line with
the number of hours expended in the main case. See Resnick v. Dep’t of Homeland Security,
EEOC Appeal No. 07A20040 (October 30, 2003) (citing Black, EEOC Request No.
05960390).

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By eliminating the caps, the Commission intended that whether the number of hours spent on
fee petitions is reasonable should be determined on a case-by-case basis. In the present case,
Complainants’ counsel requested 39.1 hours for preparing his verified statement of attorney’s
fees. We find this amount to be excessive. We note that the billing records and necessary
documentation for preparation of the fee petition were within the attorney’s possession and
under his control. Complainants’ counsel states that contemporaneous billing records were
kept of the hours he spent on the subject appeals. In addition, we note that the three affidavits
from fellow attorneys were all completed prior to the AJ’s May 28, 2010 decision. Further,
we note that counsel does not dispute the Agency’s contention that his resume was previously
completed. Upon review, we find Complainants have not shown that the eight hours (with the
additional rounding up of $280) permitted by the Agency for preparation of the fee petition to
be inadequate.

While we appreciate the fact that counsel represented the two Complainants in this case since
2000, we note that counsel was previously awarded attorney’s fees and costs for his work spent
for that duration of time. We note the sole issue in the present appeal is the amount of
attorney’s fees for Complainants’ success in defending against the Agency’s challenge to
reduce the attorney’s fees awarded by the AJ. In the present case, we find Complainants are
entitled to attorney’s fees in the present case in the aggregate amount of $27,715.00
($23,715.00 for 51 hours expended on the prior appeal and $4,000.00 for preparation of the
fee petition).

CONCLUSION

Accordingly, the Agency’s final decision on attorney’s fees is AFFIRMED and the Agency
shall comply with the Order herein.

ORDER

The Agency shall take the following remedial actions:

Within 30 days of the date this decision becomes final, the Agency shall pay
Complainants a total aggregate amount of $27,715.00 in attorney’s fees.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission’s Decision.” The report shall include supporting
documentation, including evidence that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal

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Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. 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). 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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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).

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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

April 20, 2016
Date