01-2006-3065_Ellis
12-05-2007
Marchel Ellis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area) Agency.
Marchel Ellis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area)
Agency.
Appeal No. 01200630651
Agency No. 4K210011603
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 27, 2006, finding that it was
in compliance with the terms of the April 11, 2003 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405. Complainant states in her appeal
that she is not contesting the merits of the FAD, but seeks attorney's
fees related to litigating the agency's alleged breach of its Settlement
Agreement with complainant.
BACKGROUND
On September 8, 2003, complainant contacted an EEO counselor alleging
racial discrimination in her treatment by her supervisor (S1) at the
Columbia, Maryland, Post Office. Complainant is a Mail Processing
Clerk who had been assigned to work with "nixie and loop mail," (i.e.,
misdirected and other problem mail.) Complainant had filed several
previous discrimination complaints, the most recent of which (Agency
No. 4K-210-0047-03) was resolved with a Settlement Agreement at a redress
meeting with her supervisor and the Columbia Postmaster on April 11,
2003 (SA).
Complainant was unrepresented at the redress meeting. The SA recognized
that complainant wanted to be treated with dignity and respect and
provided that management would educate the carriers of the importance
regarding the customer service aspect of complainant's job and allow
complainant to communicate with the carriers to minimize "nixie and loop
mail" problems. The SA also provided that several "idea proposals" that
complainant had made which had in fact been implemented by the Postal
Service would be sent to the Human Resources Manager for recognition
pursuant to the Postal Service's policy for rewarding employees whose
ideas were implemented with up to $250 in cash.
A second redress meeting was held on November 7, 2003, where the parties
clarified the SA adding more specific language. Among the provisions
were the following: ". . . (4) There will be regular stand-up talks
regarding new procedures and to highlight problems with nixie mail.
Supervisors will identify areas of concern and suggest follow-up will
(sic) occur with [complainant]. (5) [Complainant] will do orientation
with new carriers after their initial 90 days. (6) Supervisors
will cooperate with [complainant] and conversely to develop a "team
attitude." (7) Nixie mail questions to be directed to [complainant]
with instructions that [complainant] has authority to implement and
instruct per regulation. . . . (9) There will be follow-up . . .
regarding award recognition. (10) [Complainant] will be paid 2 hours
of overtime at the next pay cycle."
On December 10, 2003, complainant notified the agency of an alleged breach
of the SA. Specifically, complainant argued: (1) that two pay cycles
went by and complainant did not receive the overtime pay called for in
Provision 10; (2) that nothing was done about the monetary award for the
implementation of complainant's ideas as called for in Provision 9; and
(3) the agency claimed that it would refuse to honor Provision 5 calling
for complainant to do orientation sessions for new carriers on handling
"nixie" mail.
Following the notification letter, complainant received the two hours
of overtime pay referenced in Provision 10 and a $50 gift certificate
for the implementation of her ideas, as referenced in Provision 9.2
Thereafter, on March 5, 2004 and April 27, 2005, the agency issued
decisions maintaining that it was rescinding the SA because the
provision calling for complainant to do orientations on "nixie" mail
for new carriers violated the National Collective Bargaining Agreement
(National Agreement) which provides, in part, that the employer shall
have the exclusive right to direct employees in the performance of their
official duties. The agency also issued a subsequent letter on June 2,
2005, declaring the SA "null and void."
Complainant timely appealed the various decisions by the agency noted
above. On October 5, 2005, the EEOC issued a decision concluding
that the SA was valid and did not violate the National Agreement.
(See Ellis v. United States Postal Service, EEOC Appeal No. 01A53918
(October 5, 2005). Without reaching the merits of the allegations of
breach, the Commission remanded the case to the agency to establish that
it also complied with Provisions 5, 9, and 10 of the SA.
On February 27, 2006, the agency issued its decision stating that it
had not breached Provisions 5, 9, and 10 of the SA.3 In her appeal,
complainant states that she is not appealing the merits of the agency's
February 27, 2006 decision, but rather is seeking attorney's fees.
ANALYSIS AND FINDINGS
The Commission may award complainant reasonable attorney's fees and other
costs incurred in the processing of a complaint regarding allegations
of discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq. See 29 C.F.R. � 1614.501(e).
To establish entitlement to attorney's fees, a complainant must first show
that she is a prevailing party. See Buckhannon Bd. and Care Inc. v. West
Virginia Dep't of Health and Human Res., 532 U.S. 598 (2001); Romike
v. Department of the Army, EEOC Appeal No. 0120073772 (November 16,
2007); Troi v. United States Postal Service, EEOC Request No. 05930866
(September 22, 1994). A prevailing party for this purpose is one who
succeeds on any significant issue and achieves some of the benefit sought
in bringing an action. Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st
Cir. 1978). The Commission has also held that a complainant who receives
some benefit due to a judgment in favor of her settlement agreement breach
claim is considered a prevailing party. See Spriesterbach v. United
States Postal Service, EEOC Request No. 05990158 (November 23, 2001).
We shall assume for the purposes of this decision that complainant
"succeeded on a significant issue" when on October 5, 2005, the Commission
vacated the agency's decision finding the SA null and void. However,
complainant fails to show that she received any benefit resulting from
the October 5, 2005 decision. The record shows that the agency met its
requirements under Provisions 9 and 10 of the SA before the Commission's
decision on October 5, 2005.4 Moreover, complainant has not identified
any benefit obtained after October 5, 2005.
CONCLUSION
Accordingly, for the reasons set forth herein-above, we deny complainant's
petition for attorney's fees.5
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
December 5, 2007
__________________
Date
1 Due to a new data system, this appeal has been redesignated with the
above referenced appeal number.
2 Complainant, however, did not find this award sufficient.
3 Some time before the issuance of this decision, complainant withdrew
her claim regarding Provision 5 of the SA. Accordingly, only Provisions
9 and 10 were allegedly breached.
4 Complainant has withdrawn her claim of breach with respect to Provision
5 of the SA.
5 Since complainant is not appealing the merits of the agency's decision,
we do not address it herein.
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0120063065
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036