01A33741
09-28-2004
Kent DeVrieze v. Department of Interior
01A33741
09-28-04
.
Kent DeVrieze,
Complainant,
v.
Gale A. Norton,
Secretary,
Department Of The Interior
Agency.
Appeal No. 01A33741
Agency No. FWS-00-020R9
Hearing No. 320-A1-8158X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
In a final order issued on March 26, 2003, the agency concurred with the
AJ's decision finding that complainant was discriminated against: (1)
based on sex and disability when he was not selected for the position of
Accountant, GS-0510-12, under vacancy no. FWS9-99-IG5596; and, (2) based
on disability when he was not selected for the position of Accountant,
GS-0510-9/11, under vacancy announcement no. FWS9-99-IH3196.<1> The
agency's final order rejected the AJ's finding of reprisal discrimination
with regard to both claims.<2>
On appeal, complainant, through his representative, argues that the AJ's
decision and the agency's final order failed to properly award attorney's
fees and costs. Complainant seeks to recover fees for services rendered
by his representative and the costs for a technical advisor.
We deny complainant's requests for attorney fees and to recover the
costs for a technical advisor.
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. 29 C.F.R. � 1614.501(e)(1)(iii). The regulations
make no provision for payment of fees for representation performed by lay
persons. See 29 C.F.R. �1614.501(e). Here, complainant's representative
was not an attorney and therefore, complainant is not entitled to recover
attorney's fees or the cost for a technical advisor.
Reasonable costs incurred directly by a prevailing complainant (e.g.,
one who is unrepresented or who is represented by a non-lawyer) are
compensable. Hafiz v. Department of Defense, EEOC Petition No. 049960021.
These costs may include such items as mileage, postage, telephone calls,
and photocopying and any other reasonable expenses incurred in connection
with the complaint. Carver v. United States Postal Service, EEOC Petition
No. 04950004 (June 19, 1996). It is complainant's burden to prove that
he incurred such costs, by providing documentation to support a claim
for costs, such as bills for copying, telephone bills, or receipts for
mailings. Hafiz, EEOC Petition No. 04960021. Here, complainant has not
requested to recover such costs nor has he provided documentation that
such costs were incurred. Accordingly, we deny complainant's request
to recover costs.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 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 (S0900)
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 (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
____09-28-04______________
Date
1 The agency provided evidence that it has
implemented the corrective actions ordered by the Administrative Judge.
2 We note that the agency's final order did not comply with the
Commission's regulations. In accordance with 29 C.F.R. � 1614.110(a),
if a final order does not fully implement the AJ's decision, an agency
is required to simultaneously file an appeal with the Commission in
accordance with 29 C.F.R. � 1614.403. Here, the agency's final order
rejected the AJ's finding of reprisal discrimination, but the agency did
not simultaneously file an appeal with the Commission as required. As
a result, the AJ's finding of reprisal discrimination is binding on
the agency as the AJ's decision became the agency's final order by
operation of law. See 29 C.F.R. � 1614.109(i). We remind the agency of
its obligation to comply with the Commission's regulations.