0720130033
04-24-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0720130033
Hearing No. 450-2012-00234X
Agency No. ARRRAD11AUG03556
DECISION
Following its July 17, 2013, amended final order, which implemented an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge's (AJ) decision finding no discrimination, and rejected the AJ's decision awarding attorney fees and costs against the Agency as a sanction, the Agency filed an appeal. On August 20, 2013, Complainant filed a cross appeal arguing that the Agency's July 17, 2013, amended final action was not timely issued and hence, in effect, the AJ's decision on sanctions became the Agency's final order which must be enforced. The Commission accepts the parties appeals pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to his complaint, Complainant worked as a Heavy Equipment Mechanic with the Red River Army Depot, located in Texarkana, Texas. He was deployed overseas in Kuwait.
On October 19, 2011, Complainant filed an EEO complaint alleging that the Agency violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. by discriminating against him based on his race (Black) when (1) on May 17, 2011, he was removed from the overseas theatre for insubordination; and (2) on August 25, 2011, his term appointment was terminated.
The Agency did not commence the investigation of Complainant's complaint until May 7, 2012, and on May 9, 2012, he timely requested a hearing before an EEOC AJ.
On August 21, 2012, Complainant filed a motion for sanctions regarding the Agency's failure to provide him with a Report of Investigation (ROI). Thereafter, on August 30, 2012, the Agency transmitted the ROI to the AJ, and the record suggests it also did so around the same time for Complainant.
On October 2, 2012, the AJ issued an order sanctioning the Agency for failure to timely investigate Complainant's complaint - missing the 180 day deadline to complete the investigation after Complainant filed his formal complaint by over 120 days. As sanction, the AJ ordered the Agency to be responsible for paying Complainant's reasonable discovery costs to include attorney fees, if any, as a result of its failure to timely investigate his claim and develop an impartial factual record.
On April 24, 2013, the AJ issued two decisions. The first was a "Summary Decision" without a hearing finding no discrimination. The second was an order granting Complainant's discovery costs pursuant to the AJ's October 2, 2012, order on Complainant's motion for sanctions. Reasoning that the Agency failed to timely conduct its investigation, the AJ ruled that the appropriate sanction was payment of Complainant's attorney fees and costs in the amount of $5,596.02. The AJ found that the fee rates, amount of time, and the nature of the discovery was reasonable and necessary.
According to an "Order Entering Judgment" and a companion "Certificate of Service" signed by the AJ on April 25, 2013, the AJ mailed via first class mail on compact discs electronic copies of the Official Record of Proceedings to: the Agency's Director of EEO Compliance and Complaints Review (EEOCCR), the Agency's legal representative at its Red River Army Depot, Complainant, and his representative.
EEOCCR is responsible for issuing final agency actions and final agency decisions. An EEOCCR EEO Specialist submitted an affidavit that despite the AJ's "Certificate of Service," EEOCCR did not receive the Order Entering Judgment and Summary Decision until June 6, 2013, after it was sent to it by the Agency's Red River Army Depot representative. The EEO Specialist wrote that she checked the iComplaints system on June 6, 2013, and neither the Order Entering Judgment nor the Summary Decision were in the file or logged in. On June 7, 2013, EEOCCR emailed the AJ complaining that it did not receive the Summary Decision until June 6, 2013, identifying who sent it. It requested that all AJ decisions and the hearing record be sent to EEOCCR. On June 10, 2013, the AJ replied that the entire Official Records of Proceedings was mailed to EEOCCR, and her office does not mail a paper copy of the documents other than the Order Entering Judgment. The AJ explained that decisions are included in the Official Record of Proceedings, and wrote she would have another disc of the Official Record of Proceedings sent to EEOCCR that day.
On June 13, 2013, the Agency issued a final action implementing the AJ's summary decision. The Agency did not refer therein to the AJ's second decision awarding attorney fees and costs as a sanction against the Agency. The AJ's April 24, 2013, decision on sanctions included a "Certificate of Service" signed by the AJ indicating that it was sent via first class mail to Complainant, his representative, and the Agency's Red River Army Depot legal representative.
In her affidavit the above EEOCCR EEO Specialist wrote that EEOCCR did not receive the AJ sanctions decision until the Chief Depot Counsel of the Red River Army Depot emailed the decision to it on June 20, 2013.
On July 17, 2013, the Agency issued an amended Final Action implementing the AJ's Summary Decision and rejecting the AJ's decision awarding attorney fees and costs to Complainant as a sanction.
The above EEO Specialist's affidavit regarding the receipt of the AJ's decisions was corroborated by the affidavits of two other EEOCCR EEO Specialists responsible for the receipt of incoming mail related to complaints, as well as contemporaneous emails by Agency officials referring to the AJ's decisions.
In its amended final action, the Agency wrote that it was "willing to pay the $5,596.02 in attorney's fees and costs as a monetary sanction; however, Army lacks legal authority to do so."1 The Agency explained that based on a Department of Justice, Office of Legal Counsel opinion, there has been no express waiver of sovereign immunity that would authorize the payment of sanctions in administrative cases before the EEOC. It explained that the Agency was bound to follow this opinion and therefore could not implement the AJ's decision on monetary sanctions without potentially violating the Anti-Deficiency Act, 31 U.S.C. � 1341.
In its appeal, the Agency indicates that given when EEOCCR received the AJ's decision on sanctions, its final action thereon was timely. It argues, tracking the reasoning in its final action, with more detail, that it does not have authority to pay attorney fees and costs which were imposed as a monetary sanction by the AJ.
On appeal Complainant argues that the Agency did not timely issue its amended final action. He argues, in effect, that this means the AJ's sanction decision on fees and costs became the Agency's decision. 29 C.F.R. � 1614.109(i). He argues that the fact that the Agency failed to effectively communicate with itself does not lay the groundwork for the Agency defending the untimely issuance of its decision rejecting sanctions and appeal there from. Complainant also argues, citing EEOC authority, that the EEOC has rejected the argument that it does not have the authority to issue enforceable monetary sanctions.
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency timely issued its final action rejecting the AJ's decision on sanctions. The AJ was on notice that EEOCCR needed a copy of her decisions and the hearing record, as evidenced by the AJ's April 25, 2013, "Certificate of Service" which included EEOCCR. In the accompanying "Order Entering Judgment" the AJ wrote that the Agency's "Final Action Authority" was being provided copies of the Official Record of Proceedings. This is EEOCCR. The "Certificate of Service" is rebuttable. We find, based on a preponderance of the evidence, that the Agency's EEOCCR did not receive the AJ's decision on sanctions until June 20, 2013. This is supported by three affidavits and contemporaneous emails on the matter. We disagree with Complainant's contention that the Agency's failure to communicate with itself undermines its arguments on timeliness because the EEOC was on notice that it had an obligation to send the AJ's decisions directly to EEOCCR.
The Agency's arguments regarding sovereign immunity, and hence the potential violation of the Antideficiency Act if it paid sanctions of attorney fees, were thoroughly and squarely addressed in Mirabal v. Department of the Army, EEOC Appeal No. 0720120007 (Nov. 9, 2012), request to reconsider denied, EEOC Request No. 0520130236 (Mar. 27, 2014).2 The EEOC rejected these arguments, and ordered that the Agency pay the sanction of attorney fees. See also, Waller v. Department of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), request to reconsider denied, EEOC Request No. 0520070687 (February 26, 2009).
We need not reiterate the EEOC's legal reasoning in Mirabal here. The EEOC has authority to award attorney fees and costs as a sanction. The Agency did not contest the propriety of the sanction, rather it only argued it did not have authority to pay the sanction.
Accordingly, the Agency's amended Final Action is MODIFIED to the extent that it denied the payment of attorney fees and costs as a sanction. The Agency shall comply with the order below.
ORDER
The Agency shall make payment payable in the name of Complainant and his law firm for attorney fees and costs in the amount of $5,596.02 within 30 calendar days after this decision becomes final.3
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 Agency has complied with this decision.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/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 (M0610)
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 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 77960, Washington, DC 20013. 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 (S0610)
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. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
April 24, 2014
__________________
Date
1 In fact, on May 14, 2013, the Agency's Red River Army Depot completed and signed off on a voucher for payment of the $5,596.02 in fees and costs, but it was not implemented.
2 A review of the Agency's appeal brief in Mirabal reveals that the legal arguments therein for its lack of authority to pay sanctions of attorney fees are virtually identical to the arguments it makes on appeal here.
3 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0720130033
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720130033