0720160017
09-09-2016
Anne C.,1 Complainant, v. Julian Castro, Secretary, Department of Housing and Urban Development, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Anne C.,1
Complainant,
v.
Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0720160017
Hearing No. 443-2012-00188X
Agency No. 001042011A
DECISION
Following its April 29, 2016, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an Equal Employment Opportunity Commission Administrative Judge's (AJ) attorneys' fees awarded, after finding discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission MODIFIES the Agency's final order.
ISSUE PRESENTED
Whether the AJ properly awarded Complainant $60,626.40 in attorneys' fees, and denied her requested costs.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Management Analyst at the Agency's Milwaukee Field Office in Milwaukee, Wisconsin. On October 4, 2011, Complainant filed a formal EEO complaint alleging that she was discriminated against based on sex (female), race (African American), and color (dark complexion), when on August 5, 2011, she was not selected for the position of Milwaukee Field Office Director. Complainant also alleged that she was subjected to a hostile work environment in retaliation for prior EEO activity when:
1. she was denied local travel to job related training and conferences;
2. she was assigned work without timely instruction and training;
3. her name was removed from the managers' listserv and organizational charts, and she was no longer allowed to attend management meetings;
4. her authorization to sign Freedom of Information Act requests was removed;
5. the Agency refused to honor her repeated requests for intervention to mitigate actions taken by the Acting Field Office Director regarding an incident that occurred on August 16, 2011, concerning the scheduling of the congressional briefing;
6. she was informed that anonymous complaints had been filed against her alleging late work starts and early departures;
7. her performance evaluation changed from "Outstanding" to "Fully Successful"; and
8. a supervisor made personal and professional inquiries with community partners about her.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission AJ. Complainant timely requested a hearing; the AJ held a hearing, and issued a decision on November 19, 2015. The AJ found that Complainant had not shown that she was discriminated against when she was not selected for the Director position; and that she was not subjected to a hostile work environment. However, the AJ found that the Agency discriminated against Complainant based on reprisal for filing the instant EEO case when it gave her a "Fully Successful" performance rating.
The AJ found that Complainant had established a prima facie case of reprisal discrimination because she initiated EEO contact on August 10, 2011, and her then supervisor (S1) learned of her EEO activity on August 19, 2011. S1 signed Complainant's performance fiscal year (FY) 2011 rating on October 30, 2011, which the AJ found to be within a close period of time, and done in such a manner, that a reprisal motive could be inferred. The AJ noted that the Agency's legitimate, non-discriminatory reason for its action was that S1 gave Complainant's rating based on her observation of Complainant's performance, and of her written/verbal end products.
The AJ then found that Complainant met her burden in showing pretext because S1's testimony was inconsistent and not credible. Specifically, the AJ found that S1 did not provide any examples of Complainant's work deficiencies; and S1's notes from Complainant's mid-year performance evaluation show that S1 informed Complainant that her end of year performance rating would be in the "higher levels." Additionally, while S1 pointed to four emails to support the "Fully Successful" rating, she testified that she did not consider two of the incidents when evaluating Complainant, and a third incident was outside of the rating period. As such, the AJ found that one incident could not have changed Complainant's rating from the upper level to just average in two months.
As a remedy, the AJ ordered:
1. $10,000 in non-pecuniary compensatory damages;
2. EEO training to all managers and supervisors in the location;
3. Complainant's performance rating be changed from "Fully Successful," to "Outstanding;"
4. Complainant receive a performance award consistent with an "Outstanding" rating;
5. Complainant receive reasonable attorney's fees and costs.
On February 2, 2016, the Agency issued a final order adopting the AJ's decision.
On December 21, 2015, Complainant filed a fee petition requesting $136,694 in attorneys' fees and $4,236.66 in costs. The Agency filed a response; Complainant filed a reply to the response; and the Agency filed another response. On March 21, 2016, the AJ issued a decision, without a hearing, on attorneys' fees and costs. As an initial matter, the AJ denied the requested costs because Complainant did not provide any receipts in substantiation of the costs.
For the attorneys' fees, the AJ found that the hourly rate for the two attorneys were reasonable, at $250 per hour for Attorney 1; and $195 per hour for Attorney 2. In regards to the hours requested, the AJ made reductions for hours billed for pre-complaint processing, and vague billing entries. The AJ made the following deductions:
1. $1,775 for pre-complainant processing;
2. $11,800 for work listed as "work on file;"
3. $1,850 for work listed a "review file," or "review emails;"
4. $625 for "conference call;"
5. $19,600 for work billed as "work on motions," or "motion work."
The AJ deducted $35,650 from the requested $136,694. The AJ then reduced the attorneys' fees by another 40% to eliminate any excessive and redundant time, including clerical time; and to account for the fact that Complainant only prevailed on a portion of her claim, which was $40,417.60. The AJ reduced the total requested attorneys' fees by $76,067.60, and awarded $60,626.40 in attorneys' fees.
On April 29, 2016, the Agency issued its final order to not implement the AJ's decision on attorneys' fees, and filed an appeal. On May 24, 2016, Complainant filed an appeal on the Agency's final order, and submitted a brief in support of her appeal on June 17, 2016. The Agency filed a brief in support of its appeal on May 19, 2016, and submitted a response to Complainant's appeal brief on July 14, 2016.
CONTENTIONS ON APPEAL
On appeal, the Agency requests that the attorneys' fees be reduced to $13,795. The Agency argues that the AJ erred in:
1. Calculating the appropriate lodestar by failing to reduce both attorney's hourly rates due to their lack of experience; failing to adjust the hours to eliminate the hours related to plainly unsuccessful motions; and failing to properly adjust to eliminate duplicative or excessive hours; and
2. Adjusting the lodestar by failing to properly analyze the separable claim; failing to consider the low degree of success when Complainant prevailed on one issue raised sua sponte by the AJ; and failing to provide details regarding her rejection of the Agency's arguments.
On appeal, Complainant requests an increase to $80,951.40 in attorneys' fees, accounting for a deduction of $1,775 for pre-complaint counseling, and a 40% across-the-board reduction. With her appeal brief, Complainant submits two statements from local attorneys to support Attorney 1's $250 hourly rate. Complainant also requests $3,775.09 in costs, claiming that she inadvertently omitted the receipts with her earlier filings to the AJ, and submitted the receipts on appeal.
Complainant also alleges that the Agency is attempting to challenge the AJ's finding of discrimination in the format of appealing the attorneys' fees. In its response, the Agency stated that it was not seeking an appeal of the underlying decision; and that the issue raised on appeal is only the reasonable attorneys' fees.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
The Commission has the discretion to review only those issues specifically raised in an appeal. MD-110 at 9-10. We note that on appeal, neither party challenges the finding of discrimination, or other remedies besides the reasonable attorneys' fees. As such, this decision will only address the issue regarding the award of attorneys' fees.
Additionally, as a general rule, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. MD-110, at Chapter 9, � VI.A.3. Complainant provides receipts for costs, and additional statements to support her hourly rate. However, she has not shown that these were not reasonably available earlier, and as such, we will not consider them for the purposes of this decision.
Attorney's Fees
By federal regulation, an agency is required to award attorney's fees and costs for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. EEOC Regulation 29 C.F.R. � 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983).
Reasonable Hourly Rate
The reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum, supra. The Agency argues that the AJ erred when she did not reduce the rates for Complainant's attorneys. However, we find that the AJ did not err in determining their rates because she considered their affidavits listing their hourly rates, and found the rates to be reasonable. While the Agency argues that neither attorney provided independent verification of her fees, it did not provide any evidence showing that the awarded rate of $250 for Attorney 1, and $195 for Attorney 2 was in error. The Agency requests a 20% reduction in the hourly rates, but does not provide persuasive evidence substantiating its request. Accordingly, we affirm the AJ's determination of the hourly rates for Complainant's attorneys.
Reasonable Number of Hours
In her decision, the AJ reduced the number of hours by removing vague billing entries, and hours worked in pre-complaint processing. Complainant argues on appeal that the AJ should not have conducted a line-by-line review to remove specific entries, and then make an additional across-the-board reduction.
The Agency argues that the AJ should have reduced the hours further to remove additional hours billed for motions, which are listed as "work on motions," and "motion work." The Agency argues that the AJ erred in finding those hours compensable because she found that Complainant's filings were not "frivolous." However, the Agency argues that those hours should be removed because they are "meritless." The Agency argues that Complainant's Motion to Compel was meritless because she did not communicate with the Agency that there was any outstanding discovery prior to filing the motion. The AJ denied the motion, finding that the Agency had produced all responsive documents. The Agency requests that an additional $2,850 be removed. In response, Complainant states that she had reached out to the Agency to obtain the requested discovery, but was met with "broken promises" and claims that the requests were too burdensome.
For Complainant's response to the Agency's Motion for Summary Judgment, the Agency argues that Complainant brought untimely claims that forced the Agency to file its motion. The AJ dismissed the claims, and ruled in favor of the Agency. The Agency requests that an additional $1,717 be removed. Complainant responds that the filed motion was for a claim of an ongoing pattern of discrimination regarding the non-selection process, and the fact that she did not prevail should not warrant a deduction on this matter.
In computing attorney's fees, "[t]ime spent on clearly meritless arguments or motions, and time spent on unnecessarily uncooperative or contentious conduct may be deducted." MD-110, at 11-4, citing Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir. 1997); Clanton v. Allied Chemical Corp., 416 F. Supp. 39 (E.D. Va. 1976). We find that the Agency has not shown that the AJ erred when finding that hours claimed for the motions were compensable. We note that the parties differ in opinion regarding the merits of Complainant's filings, but we do not find that they were "clearly meritless." Accordingly, we affirm the AJ's decision to include the hours worked for Complainant's Motion to Compel, and her response to the Agency's Motion for Summary Judgment.
A fee petition must "contain sufficiently detailed information regarding the hours logged and the work done" to permit the determination of whether hours were reasonably expended. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C. Cir. 1982). In support of her request, the fee applicant need not "record in great detail how each minute of his time was expended." Hensley, 461 U.S. 424, at n. 12. However, the applicant does have the burden of identifying the subject matter on which she spent her time, which can be documented by submitting sufficiently detailed contemporaneous time records; billing records, or a reasonable accurate substantial reconstruction of time records. MD-110, Chapter 11, �VII, page 11-9. This should include a summary of the task. Id. In reviewing the items that were deducted for being vague, we find that the AJ erred in determining that the billings for "work on motions," or "motion work" were too vague because there is enough information provided to know the subject matter of the work. However, we agree with the AJ that "work on file," "review file," "review documents," "review e-mails," and "conference call" do not provide enough specificity.2 See Johnson v. United States Postal Service, EEOC Appeal No, 0120054278 (March 20, 2007); and Renwick v. Dep't of the Navy, EEOC Appeal No. 0120112665 (Oct. 20, 2011). As such, we modify the AJ's deduction of the vague billing entries to remove the deductions for "work on motion," and "motion work," totaling $19,600.
Additionally, the AJ deducted $1,775 for work done on pre-complaint processing. This is consistent with EEOC case law, and our regulation which generally only permits recovery of attorney fees in the pre-complaint process for services performed to reach a decision to represent the complainant. 29 C.F.R. � 1614.501(e)(1)(iv), Weaver v. United States Postal Service, EEOC Appeal No. 0120130748 (May 1, 2013). Complainant's attorney does not contest this reduction, and we affirm the AJ's deduction of $1,775 for pre-complaint processing work.
Reduction of Lodestar
The Agency argues that the AJ erred when she did not provide any discussion in deciding to reduce Complainant's attorneys' fees by 40%. The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in MD-110, Chapter 11 � VI.F. If the AJ or agency determines that an adjustment to the lodestar is appropriate, the AJ or agency may calculate the adjustment by either adding or subtracting a lump sum from the lodestar figure or by adding or subtracting a percentage of the lodestar. Id. The AJ or agency has discretion to determine the amount of the adjustment. Id. The AJ or agency must provide a detailed written explanation of why the adjustment was made, and what factors supported the adjustment. Coutin v. Young & Rubicam Puerto Rico, 124 F.3d 331 (1st Cir. 1997). We agree with the Agency that the AJ erred when she did not provide an explanation behind the 40% reduction. We find that it is unclear as to how much of the 40% reduction was attributable to excessive billing, and how much for the fact that Complainant only prevailed on a portion of her claim. Additionally, the AJ did not describe the factors that were considered for the reduction. As such, we modify the AJ's reduction, and will discuss each issue separately, below.
Excessive Billing
The Agency argues that while the AJ found that Complainant billed excessive hours, she erred when she only reduced the fees by 40%, and that there should be a larger reduction. As examples of excessive billing, the Agency notes that Complainant's attorney spent over thirty hours on a closing statement; billed over $5,000 for interrogatories;3 and spent almost 100 hours in meetings or teleconferences with Complainant. Additionally, the Agency argues that the claimed fees were inflated, as evidenced by Complainant's February 2, 2016 rebuttal where she stated, "there was no reasonable expectation that counsel's petition for attorney's fees would be awarded in its entirety," and that the fees "were submitted outlining the work product of counsel so that there would be a basis for discussions to settle." The Agency requests an additional 20% reduction to account for excessive billing. Complainant's attorney counters that the Agency mischaracterized her statement, and asserts that she did not inflate her hours when she provided her sworn statement in her fee petition.
We find that the Agency has not shown that the hours billed were excessive. While we note that its opinion is that Complainant spent too many hours on various tasks, the Agency has not provided any evidence showing that the hours were excessive or redundant. As such, we will not reduce Complainant's attorneys' fees for excessive billing.
Low degree of success and separability of claims
The Agency also argues that the AJ erred because the 40% reduction does not sufficiently reflect the low degree of success, or the "separability" of Complainant's unsuccessful claims. The Agency notes that Complainant's non-selection claim was the primary focus of her case, and that her hostile work environment claim was a lesser part of her case. The Agency states that these claims are separable from the discriminatory performance rating claim because the non-selection claim involved a different legal theory and different bases; and the harassment claim also involved a different legal theory, and did not involve the same common core of facts. Specifically, the Agency alleges that the hostile work environment claim involved seven distinct factual claims, which were not necessary for the performance evaluation finding because they involved different responsible management officials, and were factually unrelated to the performance evaluation. Additionally, the Agency argues that Complainant's attorney put in "miniscule effort" into the performance rating issue, which was only raised as an incidence of harassment, and not as a separate discriminatory act.
Complainant argues that there is a connection between the non-selection claim and the performance rating issue because they are part of a continuing series of acts on the part of Complainant's chain of command.
In determining the degree of success, the Commission will consider all relief obtained in light of a complainant's goals, and, if a complainant achieved only limited success, the complainant should recover fees that are reasonable in relation to the results obtained. Hensley, 461 U.S. at 434. While a reasonable fee should not be determined simply by mathematical formula, hours spent on unsuccessful claims should be excluded from the amount of a reasonable fee. Id. Attorney's fees may not be recovered for work on unsuccessful claims. Id. at 434-35. Courts have held that fee applicants should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See Nat'l Ass'n of Concerned Veterans v. Sec'y of Defense, 675 F.2d 1319, 1327 n.13 (D.C. Cir. 1982). Claims are fractionable or unrelated when they involve distinctly different claims for relief that are based on different facts and legal theories. Hensley, 461 U.S. at 434-35. In cases where a claim for relief involves "a common core of facts or will be based on related legal theories," however, a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Id. at 435.
We find that the AJ erred by not properly accounting for Complainant's low degree of success, and the fractionability of the claims. Complainant's case originally involved two claims, a non-selection and a hostile work environment, and the finding of discrimination was made only on one of the eight incidents cited as harassment. Complainant can be seen as having won on one-eighth of one half of her case. Additionally, we find that her performance rating issue is fractionable from her other claims due to different legal theories, and the unrelated facts of the other incidents.
A reasonable fee award may be assessed in light of factors such as: (1) the time required (versus time expended) to complete the legal work: (2) novelty or difficulty of the issues: (3) the requisite skill to properly handle the case; (4) the relief sought and results obtained: and (5) the nature and length of the attorney-client relationship. See Cerny v. Dep't of the Army, EEOC Request No. 05930899 (Oct. 19, 1994). In this case, we find that Complainant should receive one-sixth of the appropriate fees. Even assuming that she had three separate claims, Complainant only prevailed on one claim, which we find to have a simpler set of facts than her other claims, and was a narrow issue. See Daley v. Dep't of Veterans Affairs, EEOC Appeal No. 0120091580 (January 27, 2012). Additionally, the record shows that the time required for the performance rating issue was small, as compared to the other two claims. As such, we modify Complainant's total award of attorneys' fees, as discussed below.
Attorneys' Fees Awarded
Complainant initially requested $136,694.00 in attorneys' fees. We have determined that the following deductions are proper:
1. $1,775.00 for pre-complaint processing;
2. $11,800.00 for "work on file;"
3. $1,850.00 for "review file," "review documents," or "review e-mails;" and
4. $1,015.00 for "conference call."
After the deductions, we are left with a lodestar of $120,254. From that figure, we are reducing the award to one-sixth of the lodestar, for a total of $20,042.33 in attorneys' fees.
Costs
As discussed above, we will not consider the receipts that Complainant submitted with her appeal. As such, we affirm the AJ's denial of Complainant's requested costs.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order to award Complainant $20,042.33 in attorneys' fees. The Agency is ordered to pay Complainant the attorneys' fees, in accordance with the order below.
ORDER
The Agency, to the extent it has not already done so, is ordered to take the following remedial actions within one hundred and twenty (120) days of the date this decision becomes final:
1. The Agency shall pay Complainant $20,042.33 in attorneys' fees.
2. The Agency shall pay Complainant $10,000 in non-pecuniary compensatory damages.
3. The Agency shall change Complainant's FY2011 performance rating from "Fully Successful," to "Outstanding."
4. The Agency shall pay Complainant a performance award consistent with an "Outstanding" rating for FY2011.
5. The Agency shall post a notice in accordance with the paragraph below.
6. The Agency shall provide EEO training to the responsible management official.
7. The Agency shall consider taking appropriate disciplinary action against the responsible management official. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the Compliance Officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation-of their departure date(s).
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Milwaukee Field Office in Milwaukee, Wisconsin copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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
_9/9/16_________________
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.
2 We note that the fee petition contains bundled entries that include some of the vague terms, but that the AJ did not include those in her calculations. Accordingly, we will also leave those undisturbed. Additionally, we note that there is an extra entry for a vague "conference call" for Attorney 2 that was not included, and will include that charge in our calculations below.
3 The Agency argues that Complainant did not propound any interrogatories, but Complainant responds that she used the term affidavits and interrogatories interchangeably when referring to witness statements; and that the record supports time spent on interrogatories/affidavits.
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