Thelma King, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 6, 2000
01a03455 (E.E.O.C. Sep. 6, 2000)

01a03455

09-06-2000

Thelma King, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Thelma King v. USPS

01A03455

September 6, 2000

.

Thelma King,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03455

Agency No. 1B-145-1021-96

Hearing No. 160-97-8270X

DECISION

The complainant timely initiated an appeal from the agency's final

decision concerning her petition for attorney's fees and costs pursuant to

a finding by the agency of discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The FAD

regarding attorney's fees was issued on March 15, 2000. The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405).<1>

ISSUE PRESENTED

The issue before the Commission is whether the agency properly denied

the complainant's claim for attorney fees.

BACKGROUND

At the time that this matter arose the complainant was placed in an

EAS-17, Supervisor Distribution Operations, at the Rochester, New York,

Processing and Distribution Center. When the agency failed to permanently

assign her to the position of Manager, Distribution Operations, EAS-18,

to which she had been assigned (NTE 2 years), the complainant filed a

formal EEO complaint with the agency alleging discrimination based on

race, sex, age and reprisal. After a hearing before an EEO Administrative

Judge (AJ), the agency was ordered to place the complainant in the EAS-18

position of Manager, Distribution Operations with back pay and benefits,

award reasonable attorney's fees and costs associated with prevailing

on her race, sex and reprisal claims, accept evidence for any claim

of compensatory damages, post a notice at the facility and provide EEO

training to the selecting official.

The record shows that on January 24, 2000, the agency, (in a negotiated

settlement agreement) implemented the AJ's decision in this case, in

exchange for withdrawal of a subsequent EEO complaint by the complainant.

In its final action, the agency informed the complainant and her attorney

of the need to submit a verified statement of fees accompanied by an

affidavit itemizing the attorney's charges for legal work. The final

action provided the correct address for submission of the statement

and affidavit and indicated that they must be submitted within 30 days

of receipt of the agency's final action. The record shows that the

complainant's attorney's office received the final action on January 26,

2000.

On March 13, 2000, the record shows that the agency received a letter,

verified statement of fees and an affidavit from the complainant's

attorney. In the letter, dated March 7, 2000, the attorney stated that

he and the complainant agreed to have an associate handle the hearing

before the AJ and that he had subsequently engaged in negotiations with

the agency regarding a withdrawal of another EEO complaint in exchange

for the agency's implementation of the AJ's decision on this complaint.

The attorney further stated and the record confirms that the agency had

addressed the final action to the associate who had handled the hearing

and who subsequently left the firm on December 31, 1999. We note that

the record does not contain a notice of change in representative from

the attorney to the associate. The attorney further stated: �[d]ue

to law-office failure, the Notice of Final Action did not come to me

until last week, when I was in the midst of submitting a major summary

judgment motion in federal court.� The attorney requested that the

agency treat the request for fees as having been filed, nunc pro tunc,

on February 25, 2000.

On March 15, 2000, the agency issued its final agency decision (FAD)

finding that the complainant was not entitled to any award of attorney's

fees or costs because of the untimely filed petition for fees and

the failure of the attorney to request an extension or to provide an

adequate explanation for an extension. It is from this decision that

the complainant now appeals.

On appeal, the complainant, in a signed affidavit states that she

does not believe that she should be denied attorney fees because the

attorney submitted the paperwork 12 days late. She states that the

agency was obligated to carry out the order of the AJ within 60 days of

its implementation on January 24,2000. She states that to date, April 6,

2000, the agency has only increased her pay. The agency has not promoted

her to the Manager position, not paid back pay and has not sent the

selecting official to EEO training. Therefore, under the circumstances

the agency should not be allowed to deny her attorney's fees because it

has had twice as long to fulfill its obligations and has failed to do so.

In response the agency requests that the Commission affirm its FAD

because in the attorney's March 7, 2000 letter he admits that the fee

petition is untimely filed due to his law-office failure.

ANALYSIS AND FINDINGS

An agency shall award attorney's fees for the successful processing of

an EEO complaint in accordance with existing case law and regulatory

standards. See 64 Fed. Reg. 37,644, 37, 659-660 (1999) (to be codified

at 29 C.F.R. � 1614.501). The burden of establishing entitlement to

attorney's fees, including documentation demonstrating hours expended and

appropriate fees charged, is upon the complainant or the complainant's

attorney (the party requesting the fee award). See Copeland v. Marshall,

641 F.2d 880, 892 (D.C. Cir. 1983). As a threshold matter, the petition

for fees must be filed within thirty (30) days of the date on which

the complainant's representative receives the FAD. See 29 C.F.R. ��

1614.402(b), 1614.501(e).

In the instant case record evidence shows that the attorney's office

received the agency's FAD on January 26, 2000, addressed to the associate,

who was not the attorney of record. A timely filed petition for fees was

due by February 25, 2000. The record evidence shows that the petition

for fees was postmarked March 8, 2000. Thus, the petition for fees was

untimely filed.

However, where considerations of fairness require, all time limits are

subject to waiver, estoppel and equitable tolling. See 29 C.F.R. �

1614.604(c). Such time limits are discretionary on the part of the

Commission and depend on the individual circumstances of each case.

See Garcia v. Department of the Navy, EEOC Request No. 05960023 (July

9, 1997). Moreover, the very principles of Title VII and the EEO laws

require an agency to make the complainant whole where a finding of

discrimination has been made.

Here, we find that the agency is partially responsible for the

untimeliness of the complainant's petition for attorney's fees because

of the misdirected mailing of its FAD. We find no reason, nor does

the agency offer an explanation as to why it addressed the FAD to the

associate's attention in the firm rather than to the complainant's

designated representative. To the contrary, the record shows that

the agency was engaged in negotiations with the attorney subsequent

to the hearing, regarding a settlement agreement in which the agency

agreed to implement the AJ's decision in this case, in exchange for the

complainant's withdrawal of a subsequent EEO complaint. Moreover, the

agency has failed to claim any harm that would result from processing

the delayed petition for fees. The Commission will not permit an agency

to rely on the complainant's untimeliness where the untimeliness was

caused by the agency's action in misleading or

misinforming a complainant. See Wilkinson v. United States Postal

Service, EEOC Request No. 05950205 (March 25, 1996).

Based on the circumstances cited above, and upon our assessment that

a blanket denial of fees in this case would not serve the goal of the

Commission in affording make whole relief to victims of discrimination

under the laws we enforce, we will vacate the agency's FAD. In light

of the agency's failure to address the substance of the initial fee

petition and since our review of the appeal brief submitted by counsel

herein indicates that additional fees have most likely been incurred,

we will order that complainant's counsel submit an amended fee petition

to the agency within 30-days of the date this decision becomes final.

See 29 C.F.R. 1614.501(e)(2); Turner v. Department of the Interior,

EEOC Request No. 05956390 (April 27, 1998).

CONCLUSION

Based on a review of the record, and the foregoing reasons, it is the

decision of the Commission to VACATE the agency's FAD. The agency shall

comply with the ORDER below.

ORDER

Within thirty (30) days of the date this decision becomes final the

complainant's counsel shall submit an amended petition for fees unless

a request for reconsideration is filed herein. The agency shall issue

a new FAD on the amended petition for fees within thirty (30) days of

its receipt of the amended petition.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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) (Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition

for enforcement, will be terminated. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.409).

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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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 6, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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.