Verdie A.v.Dep't of Agric.

Equal Employment Opportunity Commission

Nov 6, 2018

EEOC Appeal No. 0120170100 (E.E.O.C. Nov. 6, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Verdie A.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120170100

Agency No. FSIS-2009-00392

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 19, 2016, final
decision concerning her entitlement to attorney’s fees for prevailing in an equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, the Commission REVERSES the Agency’s final decision.

Complainant worked as a Management Assistant, GS-0344-07 at the Agency’s Administrative
Services Division facility in Beltsville, Maryland. In an EEO complaint filed on May 5, 2009 and
subsequently amended, she alleged that members of her management team had subjected her to
fourteen incidents of discriminatory harassment between June 2007 and February 11, 2010. The
Agency investigated the Complainant and on July 11, 2011, issued a final decision in which it
found in Complainant’s favor on nine of the fourteen incidents and concluded that Complainant
was entitled to compensatory damages, attorney’s fees and other remedies. On August 21, 2014,
the Agency issued a decision awarding Complainant compensatory damages with reasonable
interest.

Complainant submitted a request for attorney’s fees on August 27, 2014, and followed up with a
letter to the Agency dated September 11, 2014.

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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Complainant stated in her appeal that her attorney had represented her between May 2009 and
September 2011, that he suffered a debilitating stroke in November 2013, and that he passed away
in November 2015. In her September 11, 2014 letter to the Agency, Complainant stated that the
total amount of her fee request was $5,482.88 of which there was a $1,000.00 retainer that she had
already paid to her attorney. She reiterated her request that the sum of $4,482.88 be paid to the
attorney (who was alive at the time) and that the $1,000 retainer be refunded to her.

The attorney’s invoice is dated September 26, 2011, and is addressed to Complainant at her home
address. It covered 17.9 hours of legal work at a rate of $300.00 per hour for a total of $5,370.00.
The invoice also included costs for printing and postage in the amount of $112.88. The total
amount of fees and costs claimed was $5,482.88 less the retainer payment of $1,000.00 that
Complainant had already paid. According to the invoice, the total amount due from Complainant
was $4,482.88.

In its final decision on attorney’s fees, the Agency found the attorney’s hourly rate of $300 and
$4,482.88 in fees for 17.9 hours of work plus expenses to be reasonable and concluded that the
attorney was entitled to the full amount of the fees requested. The Agency also stated, however,
that neither the estate of the deceased attorney nor his law firm submitted a request for payment of
fees, and that it was barred as a matter of law from remitting attorney’s fees to Complainant as she
was not an attorney, a law clerk, or other representative of the attorney’s firm. Therefore, the
Agency stated that Complainant’s attorney’s estate was entitled to $4,482.88 in attorney’s fees and
costs, but that it would not remit payment to Complainant.

On appeal, Complainant requests guidance in recovering the awarded attorney’s fees and
$1,000.00 she paid to her then-attorney as a retainer. There is no documentation in the record,
either from the Agency or from the attorney’s estate, that the ordered attorney’s fees have yet been
paid.

The Commission finds that the Agency erred in its final decision. The Agency found that the
submitted invoice’s listing of 17.9 hours expended at $300.00 per hour were reasonable. In
addition, the Agency concluded that Complainant was entitled to the requested $112.88 for costs.
Based on those findings, Complainant should have been awarded $5,482.88. Instead, the Agency
determined improperly that Complainant was only entitled to $4,482.88 based apparently on her
payment of $1,000.00 to her then-attorney as a retainer fee. Furthermore, the Agency erroneously
declared that, even though Complainant established her entitlement to the fees, it would not remit
payment to Complainant because she is not an attorney, law clerk, or other representative of the
attorney’s firm. The Commission notes that the right to recover attorney's fees and costs lies with
Complainant. 29 C.F.R. § 1614.501(e)(1). Additionally, any agreement between Complainant
and her former attorney is a private contractual matter not within our purview. The Agency did
not challenge the invoice’s listed hours and hourly rate; therefore, the Commission finds that
Complainant is entitled to the full amount of attorney’s fees and costs requested.
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CONCLUSION

Upon review of the record, the Commission REVERSES the Agency's final decision regarding
Complainant's entitlement to attorney's fees and REMANDS the matter to the Agency to take
action in accordance with the ORDER below.

ORDER (C0618)

To the extent that it has not already done so, within sixty (60) calendar days of the date this decision
is issued, the Agency shall pay Complainant $5,482.88 in attorney’s fees and costs.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of back pay and
other benefits due Complainant, including evidence that the corrective action has been
implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 Agency’s request must be
submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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 (R0610)
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.
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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 (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

November 6, 2018
Date