01a52605
09-29-2005
Steven W. VanDesande, Sr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven W. VanDesande, Sr. v. United States Postal Service
01A52605
September 29, 2005
.
Steven W. VanDesande, Sr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52605
Agency No. 4H 330 1138-96
Hearing No. 150-2000-0841X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
For the following reasons, it is the decision of the Commission to
MODIFY the final agency decision with regard to attorneys' fees and
relief sought in pursuing the appeal in this case.
The complainant was a Letter Carrier employed at the agency's Promenade
Station at Hialeah, Florida. The complainant alleged that the agency
retaliated against him when he was subjected to continued harassment
and retaliation. On December 10, 2001, the Administrative Judge issued
a Default Judgment against the agency with regard to the complainant's
consolidated complaints. Following a damages hearing and by decision
dated September 4, 2003, the AJ awarded the complainant certain
specified relief, including attorney's fees, but the AJ did not award the
complainant with all of the relief requested. Both parties appealed. The
Commission consolidated the appeals under appeal 07A40037. On September
28, 2004, the Commission modified the AJ's award of compensatory
damages and reversed the agency's final order that rejected the AJ's
judgment against the agency in Steven W. VanDesande, Sr. v. United
States Postal Service, EEOC Appeal No. 07A40037 (September 28, 2004)
and other relief awarded.<1> The Commission remanded the matter to the
agency for compliance.
The complainant seeks an additional $16,537.50 in attorney fees at an
hourly rate of $225 for work on his previous appeal to the Commission
and the separate and distinct cross-appeal. On January 18, 2005, the
agency issued it final action reducing the requested fee petition by 30%
and awarded $11,537.00 in attorney's fees.<2> The agency contends that the
complainant's attorney claimed excessive hours and the complainant did not
prevail on the issues for which he cross-appealed. This appeal followed.
We are not persuaded that the claimed hours were excessive. We note
that the research time (3 hours and 35 minutes and 4 hours and 20 minutes
respectively) for the research of more than sixty cases is not excessive.
We also note the claimed research was undertaken on the issue of attorney
fees, which had not been previously undertaken. Moreover, we note that
the complainant was a prevailing party, as evidenced by the Commission's
finding of discrimination which was a reversal of the FAD.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, we find that the complainant's
request for attorney's fees is supported by the record before us. It is
the decision of the Commission to MODIFY the agency's final order which
denied the complainant the full amount of the requested attorney's fees
for his previous appeal. Accordingly, the agency is directed to take
corrective action in accordance with this decision and the Order below.
ORDER (D0403)
To the extent that it has not already done so, the agency is ordered to
take the following remedial action:
Within 30 calendar days of the date that this decision becomes final,
the agency will pay complainant $16,537.50 in attorney's fees.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/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 this
decision becoming final. 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 (K0501)
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
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (M0701)
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 (R0900)
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 (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
September 29, 2005
__________________
Date
1 On September 4, 2003, after conducting an extensive hearing on the issue
of damages, the AJ issued a decision finding that the complainant was
entitled to the make whole relief, which we affirmed in substantial part.
Our order, affirming the AJ award, provided for expert witness fees and
attorney's fees and costs. The order also permitted the complainant to
seek an award of reasonable attorney's fees to which he may be entitled.
2 The complainant notes that a 30% reduction from the $16,537.50 results
in $11,576.25, not the $11,537.00 actually awarded by the agency.