0520180057
02-15-2018
Terese D,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Terese D,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Request No. 0520180057
Appeal No. 0120160927
Hearing No. 541-2016-00080X
Agency No. HS-CIS-00424-2011
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120160927 (September 14, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
On January 25, 2011, Complainant filed a complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity when, on November 15, 2010, she received a rating of "Achieved Expectations" on her performance evaluation for fiscal year 2010. The matter had been assigned to an Equal Employment Opportunity Commission Administrative Judge (AJ) who granted the Agency's motion for summary judgment. The Agency adopted the AJ's decision in its final order.
Complainant appealed the final order to the Commission. In EEOC Appeal No. 0120123155 (Nov. 17, 2015), the Commission vacated the Agency's final order and remanded the matter to the AJ for a hearing. The Agency complied with the Commission's order to submit a copy of the complaint file to the EEOC's Hearings Unit.
Following the Commission's decision, on December 5, 2015, Complainant's attorney (Attorney) filed a statement indicating that Complainant was the prevailing party with respect to EEOC Appeal No. 0120123155. As such, the Attorney argued that Complainant is entitled to fees for the processing of the appeal. The Commission docketed the request as an appeal, namely EEOC Appeal No. 0120160927.
In EEOC Appeal No. 0120160927, we dismissed the Attorney's appeal. We noted that at the time of the appeal was filed on December 8, 2015, Complainant was not the prevailing party, i.e., she had "prevailed in whole or in part on a claim of discrimination." Therefore, the previous decision held that Complainant was not entitled to an award of fees for the Attorney. The previous decision indicated that Complainant's complaint was still pending before the Commission's Hearings Unit. As such, if Complainant is found to be the prevailing party, she would then be entitled to attorney's fees. However, the previous decision stated that such a time had not arrived.
Complainant filed a request for reconsideration on October 11, 2017. The Attorney argued that Complainant was clearly the prevailing party on her claim of discrimination and is entitled to an award of attorney's fees. The Attorney claimed that Complainant prevailing on summary judgement was a substantial aspect of prevailing on the merits of her overall claim. As such, Complainant through the Attorney believed that the Commission should reconsider the previous decision's dismissal of EEOC Appeal No. 0120160927. The Agency responded to Complainant's request for reconsideration providing the Commission with an updated complaint file.
A review of the file shows that, since the filing of EEOC Appeal No. 0120160927, on May 5, 2017, the AJ assigned to the case canceled the hearing and remanded the matter to the Agency for a final decision. Further, on July 5, 2017, the Agency issued a final decision finding that Complainant failed to show that she was subjected to discrimination as alleged. We note that Complainant has not appealed the Agency's final decision. Further, Complainant failed to make the Commission aware of the Agency's final decision in her October 11, 2017 request for reconsideration. Based on the Agency's final decision and Complainant's failure to appeal that decision, Complainant's complaint is finally resolved. She is found not to be the prevailing party and, as such, is not entitled to attorney's fees.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The dismissal of EEOC Appeal No. 0120160927 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
February 15, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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