01972485
11-02-1999
Thomas V. Millea, Appellant, v. Togo D. West, Jr., Secretary, Dept. of Veterans Affairs, Agency.
Thomas V. Millea, )
Appellant, )
)
v. ) Appeal No. 01972485
) Agency No. 89-02
Togo D. West, Jr., )
Secretary, )
Dept. of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from a final agency decision (FAD)
dated January 6, 1997, concerning his application for attorney's fees
and costs. The Commission hereby accepts the appeal in accordance with
EEOC Order No. 960.001.
The issue presented is whether the agency properly determined that
appellant was not a prevailing party and thus not entitled to attorney's
fees and costs.
Appellant's original complaint alleged discrimination based on reprisal
(prior EEO activity) when the Chief, Chaplin Service, failed to timely
approve various sick and annual leave requests. Subsequent to filing the
complaint, appellant retired and the agency then dismissed his complaint
as moot, following the recommendation of the EEOC Administrative Judge,
who noted that the record did not indicate any loss of pay and that
compensatory damages were not available. The agency, however, did not
rule on appellant's request for attorney's fees, since the AJ found
no evidence that appellant was represented by an attorney during the
relevant time.
Appellant appealed to us, and we affirmed the agency's decision that
appellant's retirement rendered his complaint moot. Millea v. Department
of Veterans Affairs, EEOC Appeal No. 01963152 (November 27, 1996).
Our appeal decision noted, however, that the agency must consider the
question of entitlement to attorney's fees when rejecting a complaint on
the grounds of mootness, citing Garcia v. Department of the Army, EEOC
Request No. 05890078 (May 26, 1989), and ordered the agency to determine
the amount of attorney's fees, if any, to be awarded to appellant.
The agency then determined that appellant was not entitled to any
attorney's fees, and appellant appealed to us.
In his appeal, appellant encloses a 3-page document which, he claims,
�clearly shows the agency management and EEO Officer was totally aware
that I was represented by counsel.� Appellant then adds, �This was an
ongoing representation as is clear from my second check to my attorney
of Feb. 17, 1991.� In response, the agency contends that appellant never
provided written notice signed by the attorney purportedly representing
him, as required by EEOC Regulation 29 C.F.R. �1614.501(e)(iv), and
that, in any case, such evidence as he provided �is irrelevant since
... appellant was not a prevailing party and is [therefore] not entitled
to attorney's fees.�
In Wise v. Department of Veterans Affairs, EEOC Request No. 05920056
(April 1, 1992), the Commission enunciated a two-pronged test for
determining prevailing party status, which entitles a complainant
to attorney's fees even if no formal adjudication of the complaint
and no finding of discrimination is made. To satisfy the first
prong, appellant must have substantially received the relief sought.
To satisfy the second, there must be a determination that his complaint
was a �catalyst� motivating the agency to provide the relief. In Dailey
v. Smithsonian Institution, EEOC Request No. 05950225 (July 29, 1996),
the Commission refined this test by stating that a prevailing party
is one who succeeds on any significant issue and achieves some of the
benefit sought in bringing the action.
Applying this test to the instant case, we note, first of all, that the
relief sought by appellant was to stop harassment, to process within
recommended time limits prior EEO cases to accomplish this goal,
to stop interference with appellant's physical therapy, and to take
other corrective actions so that Office of Personnel Management rules
are observed. Appellant's retirement, however, ended the need for
the agency to provide any of the relief sought, since his complaint
was now moot and therefore could not conceivably be a catalyst for any
agency action. Hence, we agree with the agency that appellant was not
the prevailing party in his complaint and therefore is not entitled
to attorney's fees and costs, regardless of whether he was actually
represented by an attorney during the relevant time period, as he claimed.
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision,
it is the decision of the EEOC to AFFIRM the agency's final decision in
this matter.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
November 2, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations