0420060032
12-21-2006
Huee Tan, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Huee Tan,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 04200600321
Appeal No. 01A46030
Agency No. 4G-700-0055-02
DECISION ON A PETITION FOR ENFORCEMENT
On June 27, 2006, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Huee Tan v. United States Postal Service,
Appeal No. 01A46030 (February 9, 2006). This petition for enforcement
is accepted by the Commission pursuant to 29 C.F.R. � 1614.503.
In EEOC Appeal No. 01A46030, the Commission ordered, in relevant part,
that:
(1) The agency shall issue a check made out to the complainant and
his attorney for attorney fees and costs in the amount of $50,517.66,
less fees and costs it already paid.
(2) The agency shall issue a check made out to the complainant and
his attorney for out of pocket past pecuniary damages in the amount of
$21,917.63, less such damages it already paid.
The decision recounted that on appeal, complainant conceded that the
agency already paid $55,078.49 in attorney fees, costs, and/or out of
pocket past pecuniary damages. In litigating his claim, complainant
commingled his requests for litigation costs and out of pocket past
pecuniary damages. At least one of the agency's larger checks to
complainant for these expenses likewise commingled these sums. Because
costs and out of pocket past pecuniary damages are legally distinct,
the previous decision analyzed and ruled on them separately.
On petition, complainant argues that on remand, the agency miscalculated
the past pecuniary out of pocket damages due him. He argues that he was
entitled to $3,998.80, not the $3,259.802 the agency paid. He explains
that the award of additional past pecuniary out of pocket damages in EEOC
Appeal No. 01A46030 included an award of $739 in past mental health care,
and implies that the agency never paid this specific expense. Complainant
misinterprets the decision in EEOC Appeal No. 01A46030. It awarded
$739.80 in mileage expenses which it simultaneously characterized as a
mental health care and mileage expense. This award was for trips to a
mental health care provider, a licensed clinical social worker (LCSW).
It is undisputed that on remand, the agency paid the $739.80 expense to
complainant.3
On petition, petitioner argues that on remand, the agency miscalculated
the attorney fee and costs due him. He argues that he was entitled to
$21,047.71, not the $14,097 the agency paid him. Complainant recounts
that the order in EEOC Appeal No. 01A46030 directed that the agency
pay $50,517.66 in attorneys fees and costs. Contending that the agency
paid $29,469.95 in fees and costs prior to the decision in EEOC Appeal
No. 01A46030, and observing its additional payment of $14,097 on remand
for them, he argues that he is still due $6,950.71, in fees and costs.4
Complainant's contention is not persuasive. As previously noted,
on appeal in EEOC Appeal No. 01A46030 and recounted in that decision,
complainant conceded that the agency already paid $55,078.49 in attorney
fees, costs, and/or out of pocket past pecuniary damages. On appeal in
EEOC Appeal No. 01A46030, the agency indicated the same. Specifically,
it indicated that it paid attorney fees of $26,445, and $28,633.49
in costs and out of pocket pecuniary damages. Given complainant's
concession, his contention that he is still owed $6,950.71 is incorrect.
Specifically, EEOC Appeal No. 01A46030 directed the payment of $72,435.29,
the sum total of attorney fees and costs and out of pocket past pecuniary
damages, less what it already paid.
The parties were in agreement that the agency already paid $55,078.49 in
these expenses. On remand, the agency paid a sum total of $17,356.80 in
these expenses. The sum of $55,078.49, what the agency previously paid,
and $17,356.80, the amount it paid on remand, is $72,435.29, the full
amount awarded. Complainant does not explain the discrepancies in what
he indicates the agency previously paid.
Finally, petitioner argues that the agency was late in making payment.
The agency was approximately two months late in making payment.
Given that this delay was not significant, we exercise our discretion
not to provide further remedy for the delay.
Accordingly, petitioner's petition for enforcement is denied.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 21, 2006
__________________
Date
1 The Commission's July 10, 2006 letters to the parties acknowledged the
petition for enforcement under docket number 04A60032. Due to changes
in our computerized records tracking system, the petition docket number
has been restyled to 0420060032.
2 This does not included an additional $375 the agency paid pursuant to
item (5) of the order in EEOC Appeal No. 01A46030 for a hospitalization
charge. The parties do not dispute this sum.
3 In a separate paragraph, the decision in EEOC Appeal No. 01A46030
awarded fees incurred for patient counseling with the LCSW, i.e., $13,255.
The agency previously agreed to pay this amount.
4 One of the checks the agency issued to complainant was in the amount
of $29,469.95. It was for fees and costs.
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0420060032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0420060032