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.