0520120209
10-12-2012
Millard Burruss, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Millard Burruss,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 0520120209
Appeal No. 0720100002
Hearing No. 490-2007-00178X
Agency No. 4H-370-0043-07
DENIAL
Complainant timely requested reconsideration of the decision in Millard Burruss v. U.S. Postal Service, EEOC Appeal No. 0720100002 (December 2, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R.
� 1614.405(b).
In our previous decision, we reversed the Agency's final order rejecting an EEOC Administrative Judge (AJ's) decision. Specifically, we found that substantial evidence in the record supported the AJ's finding that Complainant established that the Agency's legitimate, nondiscriminatory reasons were pretext for retaliatory animus. We also found that the record supported the AJ's finding that Complainant was entitled to $1,400.00 in pecuniary damages and $80,000.00 in non-pecuniary damages. We noted that the award of non-pecuniary damages was similar to amounts awarded in similar cases, and was appropriate to remedy the emotional distress associated with the retaliatory actions of the Agency. We further found that $300.00 per hour was a reasonably hourly rate for attorney's fees. We also reduced the hours reimbursable for work on the fee petition from 4.8 hours to 3.0 hours. We therefore found that the AJ's award of $16,200.00 in attorney's fees and $1,531.09 in supplemental attorney's fees was supported by the record. We also found that awarding Complainant with $1,958.40 in documented costs was appropriate.
In his request for reconsideration, Complainant through his attorney, contends that our previous decision erred in limiting his non-pecuniary compensatory damages to a 31-month period. Complainant contends that record evidence establishes that his emotional conditions caused by the Agency's retaliatory actions continued beyond 31 months. Complainant further contends that our previous decision improperly reduced his attorney's hourly rate from $350.00 to $300.00. Complainant contends that his attorney was an out-of-town attorney whose practice is located in Texas and not Tennessee. Complainant contends that the hourly rate for an out-of-town attorney is where that attorney is located and not where the action arose.
With respect to Complainant's attorney's hourly rate, we note that the AJ found that there were competent employment civil rights attorneys in the Memphis, Tennessee area that were highly respected in the legal community with an hourly rate of $250.00. We note that only if a party does not find counsel readily available in his her locality with whatever degree of skill may reasonably be required, is it reasonable that the party go elsewhere to find an attorney even if it results in the payment of a higher hourly rate than the prevailing market in the location where the action arose. See Southerland v. U. S. Postal Serv., EEOC Appeal No. 01A05403 (Oct. 16, 2002). Further, if a higher-priced, out-of-town attorney renders services which local attorneys could do as well, and there is no other reason to have them performed by the out-of-town attorney, then it may be appropriate to allow only the hourly rate which local attorneys charged for the same service. See id.
We further note that Complainant reiterates arguments made previously on appeal. We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-17 (Nov. 9, 1999). A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has done neither here. Because we find that Complainant failed to meet the criteria of 29 C.F.R. � 1614.405(b), we will deny the request.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0720100002 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
(1) Within forty-five (45) days from the date this decision becomes final, the Agency shall pay Complainant $80,000.00 in non-pecuniary damages;
(2) Within forty-five (45) days from the date this decision becomes final, the Agency shall pay Complainant $1,400.00 in pecuniary damages;
(3) Within forty-five (45) days from the date this decision becomes final, the Agency shall pay Complainant attorney's fees and costs in the amount $24,536.41. The Agency shall also pay Complainant attorney's fees for the appellate stage consistent with the statement of rights entitled "Attorney's Fees" below, and Complainant shall cooperate with the Agency's efforts;
(4) Within sixty (60) days from the date this decision becomes final, the Agency shall provide the responsible management officials (S1 and PM) with eight (8) hours of EEO training in the area of unlawful retaliation;
(5) The Agency shall consider taking appropriate disciplinary action against S1 and PM. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. 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. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s); and
(6) The Agency shall 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 payment of the above-referenced awards and that the above ordered corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Jackson, Tennessee, Post Office facility 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 12, 2012
Date
2
0520120209
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013