01973488
12-08-1999
James E. Carney, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs Agency.
James E. Carney, )
Complainant, )
) Appeal No. 01973488
v. ) Agency No. N/A
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a February 7,
1997, final agency decision (FAD) concerning a claim for attorney fees as
a prevailing party in his complaint of unlawful employment discrimination
under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission AFFIRMS the FAD.
The issue presented is whether complainant's �representative,� a union
steward and certified paralegal (P), is eligible to receive attorney fees.
It is undisputed that complainant was the prevailing party in Carney
v. Department of Veterans Affairs, EEOC Appeal No. 01942391 (August
22, 1996).<2> Review of the record discloses that in addition to
P, complainant was represented by two licenced attorneys who both
received an award of fees from the agency in this case. However, when P
requested fees for his representation, the agency issued a FAD denying
his request pursuant to 29 C.F.R. 1614.�501(e)(1)(iii), arguing that
his representation was not performed �under the supervision of a member
of the Bar.� On appeal, complainant argues that P was involved in this
case from its inception, and that he worked in concert with both of his
attorneys, thereby satisfying the �under supervision of a member of the
Bar� eligibility requirement of the cited regulation.
29 C.F.R. 1614.�501(e)(1)(iii) states:
Attorney's fees are allowable only for the services of members of the
Bar and law clerks, paralegals, or law students under the supervision of
members of the Bar, except that no award is allowable for the services
of any employee of the Federal Government.
Notwithstanding complainant's contentions, our review of the record fails
to disclose a supervisory relationship between P and the two attorneys who
were awarded fees. For example, neither attorney claimed P's services
in their fee petitions, and correspondence prepared by P on behalf of
complainant identifies him as a �Designated Representative,� (or a similar
title) and not as a paralegal working at the direction of an attorney.
Although P may have collaborated with these two attorneys during the
course of the case, the record shows that he was working independently
as a �designated representative,� and was not under the supervision of
either attorney at any time. Moreover, we note that P is an employee
of the agency, which renders him ineligible under the cited regulation
as well.<3>
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 the decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive the decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
December 8, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________1 On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.
2See also Carney v. Department of Veterans Affairs, Petition No. 04970018
(February 20, 1998).
3Although P argues that his representation of complainant was not
a conflict of interest, this consideration is not pertinent to his
eligibility under the cited regulation which operates as a complete bar to
any federal employee attempting to collect attorney's fees in this forum.