Hannah C.,1 Complainant,v.Barbara M. Barrett, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Sep 22, 2020

0120182489 (E.E.O.C. Sep. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hannah C.,1 Complainant, v. Barbara M. Barrett, Secretary, Department of the Air Force, Agency. Appeal No. 0120182489 Hearing No. 570-2015-01101X Agency No. 9L4W15017F18 DECISION Complainant timely 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 June 7, 2018, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issue presented in this case is whether the Equal Employment Opportunity Commission’s Administrative Judge (AJ) erred when finding that Complainant did not establish a prima facie case in support of her discrimination, reprisal, and harassment claims and when the AJ reduced Complainant’s request for attorney’s fees and costs. 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. 0120182489 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Secretary, GS-6 at the Agency’s Office Automation facility in Washington, D.C. On January 29, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Italian), sex (female), and age (62) when: a. From April 22, 2012 to August 11, 2014, Complainant was denied a promotion due to accretion of duties during realignment to A6S; b. From August 11, 2014 to the present, the Director of Staff, J3 Pentagon kept Complainant at a lower grade (GS-6) than comparator employees outside her protected classes since her realignments to A6XaGnd; c. On August 11, 2014, the Lt General (Retired) (Chief, Information Dominance & CIO/A6) had Complainant realigned from A6S to A6XG. After the Agency did not complete a timely investigation regarding Complainant’s claims, she requested a hearing before an AJ. On August 22, 2016, the AJ issued a decision entering Default Judgment against the Agency for failure to timely complete the investigation regarding the claims at issue in this complaint. Thereafter, the AJ issued a decision on Apri1 30, 2018, addressing Liability and Remedies, which required the AJ to determine whether there is “evidence that satisfies the court” establishing the right for relief. One way to show a right to relief is to establish the elements of a prima facie case. The AJ found that Complainant did not establish a prima facie case that she was discriminated against based on national origin, sex, or age. Nor did Complainant demonstrate that she was subjected to a hostile work environment or retaliation for prior EEO activity. Specifically, with respect to claim a, Complainant, a GS-6 secretary believed that she should have been classified as “at least a GS-10.” Complainant spoke to her supervisor about this. He indicated that she was comparing herself to secretaries in a different directorate and that those secretaries had different position descriptions. It was also noted that Complainant never asked for a desk audit. A second supervisor indicated that he was Complainant’s supervisor from July 2012 through June 2014. She told him that she believed that she had a lower grade than secretaries in other directorates. He indicated that the scope of the other secretaries’ work was greater than Complainant’s and they supported more people than she did, as the unit that Complainant worked in had fewer than 20 people. The Lieutenant Colonel testified that Complainant did not experience an accretion of duties; that she did not take on significantly new duties that were not in her position description; and that she did not ask for a desk audit. Complainant’s third supervisor also indicated that he was not aware of anyone who had been promoted by accretion of duties. He also did not recall a lot of civilian promotions during that time. The AJ found that Complainant failed to demonstrate that she experienced an accretion of duties. Regarding claim b, Complainant’s realignment from A6S to A6XG, the AJ found that Complainant failed to establish a prima facie case of discriminatory reassignment based on her national origin or age when the was realigned from A6S to A6XG in August 2014. Specifically, Complainant 0120182489 3 failed to demonstrate that others outside of her protected groups were treated more favorably. In fact, the record evidence revealed that the realignment was a result of a Department of Defense mandated 20% headquarters reduction. As a result, the entire A6S organization collapsed and no longer existed after the August/September 2014 reduction action. Five civilian employees were moved to A6XG; they included Complainant, two employees not of her race, one male, and one employee older than Complainant. Over two hundred employees were realigned. The AJ found that the realignment was not directed at Complainant but was the result of the Agency’s directed personnel reduction. Finally, regarding claim c, Complainant being kept at a lower grade by her supervisor the AJ found that Complainant failed to prove a discrimination regarding this issue as well. The AJ also found that Complainant did not demonstrate that she was subjected to reprisal because she did not show a nexus between her prior EEO activity and the instant claim because the Lieutenant Colonel that was involved left the Agency almost two years prior to Complainant’s reassignment to A6XG. Moreover, the realignment was conducted on an Agency wide basis and not directed at Complainant. Finally, the AJ found that Complainant did not demonstrate that she was subjected to a hostile work environment as the instances involved were work related incidents that were not severe or pervasive enough to establish a hostile work environment. As such, the AJ found insufficient evidence to support a conclusion, by default, that Complainant was entitled to relief for the allegations in this complaint. Accordingly, the AJ ordered the Agency to provide a minimum of sixteen (16) hours of in-person training to its EEO managers and staff regarding their responsibilities concerning case processing and insuring that investigations are completed timely. The AJ also ordered the Agency to consider taking disciplinary action against all responsible EEO officials still employed by the Agency who were involved in the processing of this complaint. The AJ noted that the Commission does not consider training to be disciplinary action. The Agency was also ordered to post a copy of the Notice indicating that the Agency failed to comply with the Commission’s regulatory timeframes outlined in 29 C.F.R. § 1614.108(e). Additionally, the AJ also found that Complainant was entitled to reasonable attorney’s fees and costs. Complainant’s counsel sought $32,887.56 in attorney fees and expenses for four members of the firm. The AJ found that the requested hourly rates, pursuant to Laffey Matrix were reasonable. The AJ also noted that the Agency in its Response to Fee Petition did not challenge the requested hourly rates. The AJ however, adjusted the number of hours requested based on information provided in the fee petition. Specifically, the AJ determined that the fees listed prior to Complainant filing her formal complaint in January 2015 were excluded. The AJ also found that the lead attorney had requested 13 hours but only 2.1 hours were expended on this case. Another attorney listed 20.20 hours, but the billing statement showed only 6.3 hours (the rest of the hours were for work prior to Complainant filing a formal complaint. A third attorney’s hours were supported by the record and the paralegals hours were denied because her work occurred prior to the filing of the complaint. Therefore, the AJ reduced the attorney’s fees to $17,210.70. Complainant also requested costs and expenses which were incurred in the ordinary course of business in the amount of $124.46. The AJ found these costs and expenses reasonable. 0120182489 4 CONTENTIONS ON APPEAL On appeal, Complainant contends among other things that the AJ incorrectly found that Complainant did not establish a prima facie case of promotion for accretion of duties, reprisal and harassment. Complainant also maintains that the AJ incorrectly calculated attorney’s fees and costs. Complainant argues that she is entitled to fees for time spent in settlement negotiations and 6.9 hours for one attorney and 6.4 hours for another were improperly excluded because they involved settlement negotiations. Further, Complainant maintains that the AJ also wrongly excluded 1.8 hours of discussion on September 15, 2014, involving comparator employees and supporting witnesses, and the evaluation of the merits of filing a new informal complaint. As such, these hours are compensable. Complainant also argues that the AJ erroneously excluded 8.7 hours of time for a junior attorney and 8.2 hours of time for the primary attorney. Complainant urges that the current Laffey rate should be applied, at present rates, the Commission should therefore award an additional $7,084.80 for the primary attorney and $3,123.30 for the junior attorney. Complainant further requests that the case be remanded for an investigation in to compensatory damages. In response, the Agency contends among other things that the AJ correctly determined that Complainant failed to establish a prima facie case as to her claims. Further, the Agency argues that the Commission has held that attorney’s fees are not awardable for services rendered between the time of notice and the time the complaint is filed. Absent a settlement agreement providing for the payment of pre-complaint fees, an Agency is not required to pay for work done prior to filing a formal complaint, even if that work involved settlement discussions. Fees may be paid for time expended by counsel to determine whether to represent an individual. The Commission has found that an attorney may reasonably expend up to two hours for such determination. The Agency contends that the evidentiary burden for a prima facie case may be light, but it is still a burden that a Complainant must overcome. Holding that an AJ may consider only the allegations of a complainant and can look at no other evidence to determine if those allegations are true, is inconsistent with the Commission’s precedent. Instead, an AJ who has entered a default judgment may look at all of the available evidence, however limited or robust that evidence may be. Should an AJ choose to do so, he or she may even conduct a hearing to determine if a complainant’s evidence is sufficient. Finally, the Agency maintains that Complainant is not entitled to 13.3 hours of attorney’s fees for time spent discussing a global settlement of his EEO cases absent a settlement agreement indicating that such fees were recoverable. Complainant has not presented this evidence. The Agency also asserts that Complainant is not entitled to fees for time spent discussing the merits of the informal complaint in this case. 0120182489 5 ANALYSIS AND FINDINGS 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 (EEO MD- 110), at Chap. 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”). Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that the AJ erred with regard to the finding that Complainant did not establish a prima facie case with regard to her claims. The Commission has long held that the AJ has discretion to look at the evidence and even to have a hearing regarding the evidence when determining a Complainant’s right to relief. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); see also Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (April 21, 2005). In the instant case, the AJ found that Complainant did not establish a prima facie case of discrimination as to any of her claims because she did not show that she actually had an accretion of duties or that any other employee not of her protected bases were treated more favorable. Accordingly, we find that the AJ correctly determined that Complainant was not entitled to compensatory damages, or a promotion. We find the correct remedy in this case was for the Agency to provide training, and possible discipline to those involved in not processing the complaint in a timely manner. Finally, with regard to attorney’s fees and costs, we find that the AJ thoroughly and systematically analyzed Complainant’s request for attorney’s fees and costs. On appeal, we find that Complainant failed to show that the additional hours requested were eligible for reimbursement. There was no evidence presented which suggested that a settlement agreement had been entered into regarding this additional time. Accordingly, Complainant is not eligible for additional attorney’s fees and costs. CONCLUSION Accordingly, we AFFIRM the Agency’s final order which fully implemented the AJ’s decision regarding liability and remedies. 0120182489 6 ORDER To the extent that the Agency has not already done so: a. The Agency is ORDERED to provide training with respect to compliance with the Commissions regulatory timeframes outlined in 29 CFR § 1614.108(e) as set forth above. b. The Agency shall consider taking disciplinary action against all responsible EEO officials still employed by the Agency who were responsible for the processing of this complaint. c. The Agency is ORDERED to transmit payments in the amount of $17,210.70 for attorney fees and $ 124.46 in costs and expenses. d. The Agency will post the attached notice at the Agency’s EEO office at Joint Base Andrews, Maryland. Copies of the notice signed by the Agency’s duly authorized representative shall be posted by the agency within thirty (30) calendar days of the date this Decision becomes final and shall remain posted for sixty (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. e. The issuance of this Decision shall trigger the time for filing an appeal or for the Agency’s issuance of a final action for purposes of establishing appeal rights. 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 0120182489 7 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. 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 0120182489 8 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 September 22, 2020 Date