04A00003
10-09-2002
Loretta Mareno, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Loretta Mareno v. Department of Veterans Affairs
04A00003
October 9, 2002
.
Loretta Mareno,
Petitioner,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 04A00003
Appeal No. 01970278
Agency No. 91-033 & 91-224
DECISION ON A PETITION FOR ENFORCEMENT
On November 17, 1999, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine
the enforcement of an order set forth in Loretta Mareno v. Department
of Veterans Affairs, EEOC Appeal No. 01970278 (August 4, 1999). This
petition for enforcement is accepted by the Commission pursuant to 29
C.F.R. � 1614.503. Petitioner alleged that the agency failed to fully
comply with the Commission's order directing that it pay to complainant
the sum of $6,758.25 as an award of attorney's fees.
On November 12, 1993, the Commission issued a decision finding that the
agency had discriminated against petitioner on the basis of physical
disability (back impairment), in that the agency failed to reasonably
accommodate petitioner. Mareno v. Dept. of Veterans Affairs, EEOC Appeal
No. 01930722. As part of the relief ordered, the agency was directed to
pay petitioner's reasonable attorney fees and costs incurred in connection
with the successful prosecution of her complaint. Petitioner's counsel
timely submitted a fee petition to the agency requesting fees in the
amount of $35,829.50, plus costs in the amount of $685.01; a total
of $36,514.51. By final agency decision (FAD) dated March 21, 1994,
the agency awarded fees in the amount of $29,573.88, plus costs in the
amount of $19.25; a total of $29,593.13.
Petitioner appealed the agency's partial denial of her attorney's
fees petition to the Commission. We modified the agency's FAD by
increasing the amount of attorney's fees to be awarded to petitioner
to $34,194.50.<1> The Commission also ordered the agency to �pay to
appellant reasonable attorney fees and costs incurred in pursuit of this
appeal.� Mareno v. Dept. of Veterans Affairs, EEOC Appeal No. 01943104
(February 14, 1996).
On April 12, 1996, Petitioner's counsel submitted a supplemental fee
petition to the agency requesting fees in the amount of $7,885.50,
plus costs in the amount of $258.02; a total of $8,143.52. By final
agency decision dated September 19, 1996, the agency awarded fees in
the amount of $1,025.84 and disallowed reimbursement of all costs.
Petitioner appealed.
In our decision in that appeal we modified the agency's decision by
increasing the fee award and ordering the agency to pay $6,758.25
to petitioner. The matter was assigned to a Compliance Officer and
docketed as Compliance No. 06991721 on November 5, 1999. On November
17, 1999, petitioner submitted the petition for enforcement at issue.
Petitioner contends that the agency failed to pay $6,758.25 as ordered.
There is a suggestion in the record that the agency did not pay the amount
as ordered because petitioner had died and no personal representative had
been appointed. This is not an adequate excuse for failure to comply with
the Commission's order. If it were true that petitioner was deceased,
the agency could nonetheless have issued a check as directed, payable
to petitioner or to her estate, and deliver the check to petitioner's
counsel. In turn, counsel would have, consistent with her legal and
ethical obligations, delivered the check, which would have been an asset
of the estate, to the estate's representative at the appropriate time.
Based upon a review of the record herein, and for the foregoing reasons,
the Commission finds that the agency has failed to comply with the
previous Order set forth in EEOC Appeal No. 01970278 (August 4, 1999 ).
Accordingly, the agency shall be required to afford to petitioner the
relief set forth in the order below.
ORDER
1. The agency is ordered to pay petitioner $6,758.25 (minus any amount
already paid).
2. The agency shall reimburse petitioner for attorney's fees and costs
incurred in connection with the filing of Petition No. 04A00003.
The attorney shall submit a verified statement of fees to the agency
within thirty (30) calendar days of the date on which this decision
becomes final. The agency shall then process the claim for attorney's
fees in accordance with 29 C.F.R. � 1614.501.
3. The agency is further directed to submit a report of compliance, as
provided in the statement entitled, "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of the attorney's fees payable.
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 PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
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
October 9, 2002
__________________
Date
1The Commission awarded none of the costs
claimed by petitioner's counsel because the fee petition contained
inadequate documentation of expenses and lacked specific descriptions
of the nature of the expenditures.