07a30061
04-19-2004
Linda J. Alford, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Linda J. Alford v. Department of the Treasury
07A30061
April 19, 2004
.
Linda J. Alford,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 07A30061
Agency No. TD-01-1039
Hearing No. 110-A2-8231X
DECISION
INTRODUCTION
Following its final order, dated November 27, 2002, the agency
filed a timely appeal which the Commission accepts pursuant to 29
C.F.R. � 1614.405. The agency requests that this Commission reverse
the order of an EEOC Administrative Judge (AJ) mandating the agency to
pay complainant's attorney an amount of $40.270.11 in attorney's fees
and costs.<1> For the following reasons, the Commission modifies the
agency's final order.
Complainant filed two formal complaints in which she alleged
discrimination. The complaints contained a total of fourteen allegations.
Nine of the allegations were withdrawn by complainant prior to the
hearing. During the hearing, another issue was added which left a
total of six allegations. Those allegations are whether complainant was
harassed on the basis of reprisal for prior EEO activity when she was (1)
subjected to an agency investigation concerning threats she allegedly
made to a contract employee and her use of overtime; (2) not afforded
representation during one of the investigative sessions; (3) issued
a Notice of Intent to Offset Salary as a result of the investigation;
(4) subjected to an investigation regarding her sentiments toward one
of her co-workers; (5) subjected to false rumors from a co-worker which
the agency failed to stop; and (6) subjected to a second investigation
concerning the same alleged threats made by complainant in the initial
investigation.
After a hearing, the AJ issued a decision in which he found complainant
had been the victim of unlawful discrimination. Specifically, the AJ
found that complainant was discriminated against when she was subjected to
the second investigation regarding threats allegedly made to a contract
employee. The AJ further found that complainant was not discriminated
against when she was subjected to the first overtime investigation.
Finally, the AJ dismissed for untimely EEO contact complainant's
allegation regarding the false rumors by a co-worker which the agency
failed to stop. The AJ's decision does not directly address allegations
(2) - (4).<2>
In his decision, the AJ ordered complainant's attorney to submit to him a
petition containing reasonable attorney's fees and costs. That petition,
in which complainant's attorney requested $44,122.01, was submitted on
July 30, 2002. In its response thereto, the agency argued that because
complainant prevailed on only one of the six allegations, the amount
requested by her attorney should be reduced by five-sixths. In his reply
to the agency's response, complainant's attorney argued that there were
three issues heard, all of which were intertwined, and thus, he should
receive all of the requested fees plus an additional $1,148.01 for costs
associated with the reply. In sum, the final request of complainant's
attorney asked for a total of $45,270.11. In a decision, dated October
16, 2002, the AJ stated that his finding of reprisal listed two issues;
the investigation of complainant (of which there were two parts, namely,
the two investigations regarding, inter alia, alleged threats made by
complainant to a contract employee) and the agency's failure to stop
the spread of false rumors concerning complainant. The AJ then stated
that the first investigation was intertwined with the second one and the
two were inseparable. Finally, he stated that the issue regarding the
rumors was separable, and therefore found that complainant's attorney
was entitled to recoup the amount of $40,270.11. In so doing, he noted
that the rumors issue was less important than the issues regarding the
two investigations.
On appeal, the agency argues that the degree of success should be a
factor in the fee award. The agency notes that there are two approaches
to calculate attorney's fees in cases of limited success. There is the
�fractionable� approach, which, according to the agency, should be used
where the issue and claims are truly divisible. Using that approach, the
agency argues that complainant's attorney is only entitled to one-sixth
(a reduction of five-sixths) of his request, which equals $7,353.66.
Then there is the partial fee approach, which is used when more than
one action is in dispute, all of which did not result in a finding of
discrimination. Using that approach, the agency argues that a review of
the attorney's original request of $44,122.01<3> reveals that $15,947.50
of the monies requested are clearly not associated with the prevailing
issue. The agency further argues that complainant's attorney failed
to detail how an additional $4,354.53<4> in costs are associated with
the issue on which complainant prevailed, and therefore those costs
should be deducted as well leaving a total amount of $23,910.98.<5>
The agency does not suggest which approach is appropriate in this case,
but requests that we reduce the AJ's award by either recognized standard.
Complainant's attorney argues that there were three matters that were at
issue at the hearing, not six as the agency claims. The first matter,
according to the attorney, was the issue regarding the agency's failure
to stop the spread of false rumors about complainant. As indicated
above, this is the issue upon which complainant did not prevail.
The second matter concerned whether the agency discriminated against
complainant when she was subjected to an investigation regarding
whether she threatened a contract employee (allegation 1), her use of
overtime (allegation 1), and her sentiments toward one of her co-workers
(allegation 4). During one of the investigative sessions, complainant
was not allowed to have a representative present (allegation 2).
After the investigation, complainant was issued a Notice of Intent
to Offset Salary, which was subsequently rescinded (allegation 3).
The third matter concerned whether complainant was discriminated against
when the agency conducted another investigation regarding whether she
had threatened the contract employee, a charge of which complainant
had been exonerated during the first investigation because there was
no evidence as to whether the threat was actually made. This second
investigation was conducted after the responsible management official
(RMO) received a series of questions for him to answer regarding an
EEO complaint filed by complainant. After reviewing the EEO complaint
in question, the RMO determined that complainant was not credible and
likely did threaten the contract employee.
Because both parties agree that complainant's attorney is entitled to
attorney's fees and the reasonableness of the hourly rates charged, we
find no need to cite the legal precedent concerning attorney's fees cases.
The sole issue before us is whether the fee and cost award should be
reduced to work done in connection with the second investigation or
whether the second investigation was so intertwined with the first
investigation that work conducted in connection therewith should also
be included in the fee and cost award. After considering all relevant
arguments, we hold that the costs and fees associated with the first
investigation were so intertwined with the second investigation that the
two (or four as the agency maintains) issues are inseparable. A reading
of the AJ's decision makes clear he used the first investigation as
background evidence to support his finding of discrimination regarding
the second investigation. Based on that holding, we rule that the AJ's
award of $40,270.11 is a reasonable amount.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
modifies the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER
If it has not already done so, the agency shall do the following:
(1) The agency shall pay complainant's attorney the sum of $40,270.11 for
fees and costs associated with the prevailing issues of complainant's
claim. The agency is advised that this sum only applies to fees and
costs incurred at the pre-appeal stage and the �Attorney's Fees� order
below applies to fees and costs incurred as a result of this appeal.
(2) The agency shall train the responsible management official in the
area of reprisal discrimination.
(3) The agency shall consider taking disciplinary action against the
responsible management official identified as being accountable for the
discriminatory actions perpetrated against complainant. The agency
shall report its decision. If the agency decides to take disciplinary
action, it shall identify the action taken. If the agency decides not
to take disciplinary action, it shall set forth the reason(s) for its
decision not to impose discipline.
(4) The agency shall destroy the original and all copies of the results
of the second investigation. The agency is advised that if the results
of that investigation were placed in complainant's personnel or employee
file, then that portion of the file shall be expunged.
(5) All of the above actions shall be taken within thirty (30) days from
the date on which this decision becomes final.
POSTING ORDER (G0900)
If it has not already done so, the agency is ordered to post at
its Federal Law Enforcement Training Center in Glynco, Glynn County,
Georgia copies of the attached notice. Copies of the notice, after being
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.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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 (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
April 19, 2004
__________________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The Department of the Treasury confirms its commitment to
comply with these statutory provisions.
The Department of the Treasury supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law. The Department of the Treasury
has been found to have discriminated on the basis of reprisal when an
employee was subjected to a retaliatory investigation. The Department of
the Treasury has been ordered to take corrective action in the form of,
inter alia, paying attorney's fees, compensatory damages and training the
responsible management official in the area of reprisal discrimination
under Title VII.
The Department of the Treasury will ensure that officials responsible
for personnel decisions and the terms and conditions of employment will
abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The Department of the Treasury will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 16141The agency does not challenge the AJ's finding of
discrimination or award of $21,000 in compensatory damages. Consequently,
those issues are not before us and are not addressed in this decision.
2Since these allegations were associated with the first investigation,
it appears the AJ merged them with the first allegation. Because
complainant does not object to the way the AJ appears to have addressed
these allegations, we will consider them as part of the first allegation
for reasons discussed in more detail below.
3Because the agency focused on the original request, we presume it does
not contest the additional amount of $1,148.01 claimed by complainant's
attorney for fees and costs associated with replying to the agency's
response to the original request.
4According to the agency, this amount consisted of copies ($274.03),
facsimiles received ($118.00), facsimiles sent ($298.50), Federal
Express ($167.41), file administration ($50.00), long distance ($71.55),
miscellaneous ($108.80), postage ($18.77), and deposition transcripts
($3,247.50), which from our calculations equal $4,354.56, a .03 difference
from the agency's calculations.
5Using the agency's figures of subtracting $15,947.50 (the unrelated fees)
and $4,354.53 (the unclear costs) from the originally claimed amount
of $44,122.01, we derive at a figure of $23,819.98. By subtracting
$15,947.50 and $4,354.56 (the figure we reached in footnote 4) from the
amount originally claimed, we derive at a figure of $23,819.95.