01A10455
10-11-2002
Laurence Sisneros, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Laurence Sisneros v. Department of Transportation
01A10455
October 11, 2002
.
Laurence Sisneros,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A10455
Agency No. 594169
Hearing No. 350968307X
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.
The sole issue presented on appeal is whether the EEOC Administrative
Judge (AJ) who presided at the hearing in this matter erred in refusing
an award of attorney's fees for one of the attorneys who represented
complainant.
On February 23, 2000, the AJ entered a decision finding that complainant
had been discriminated against on the basis of national origin (Hispanic)
when he was not selected for the position of Electronics Technician
Program Support Specialist. By order dated March 2, 2000 the AJ
instructed complainant's attorney (Attorney 1) to submit a petition
for an award of attorney's fees within 30 days. Complainant's attorney
requested an extension of time to submit any petition. The AJ extended
the time until April 11, 2000.
Attorney 1 timely filed his fee petition, which sought an award of
$17,124.25, by placing it in the mail on April 9, 2000. On April 17,
2000, the AJ receive an additional fee petition, seeking an award of
$7,687.50, from a second attorney (Attorney 2) who had also represented
Complainant. In ruling on the fee petition of Attorney 1, the AJ
awarded $17,124.25, the full amount of the fee incurred, but refused
Attorney 1's request for an upward adjustment of the lodestar amount.
The AJ, however, declined to award any fees to Attorney 2 because his
fee petition had not been timely filed.
Complainant contends that the AJ erred in refusing to entertain Attorney
2's fee petition. We disagree. Under 29 C.F.R. � 1614.109(f)(3) an AJ
is authorized to issue sanctions where the AJ determines that a party
has failed to respond fully and in a timely fashion to an AJ's order
or request for information. Here complainant concedes that Attorney 1,
who was representing him at the time of the issuance of the AJ's March 2,
2000 order, received the order and was aware of the deadline. Indeed,
Attorney 1 sought and obtained an extension of the deadline. Attorney 1's
knowledge is chargeable to complainant. See Veal v. Geraci, 23 F.3d 722,
725 (2d Cir.1994) (the relationship between an attorney and the client
he or she represents in a lawsuit is one of agent and principal, thus
the client "has notice of a fact if his agent has knowledge of the fact,
reason to know it or should know it....") (citing Restatement (Second)
of Agency � 9(3) (1958). Complainant has made no argument that would
persuade us that Attorney 2's failure to submit a timely fee petition
should be excused.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate ruling is supported by the record.
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
October 11, 2002
__________________
Date