01990481
09-13-2002
Richard J. Roberts, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Richard J. Roberts v. Department of Transportation
01990481
September 13, 2002
.
Richard J. Roberts,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01990481
Agency Nos. 5-93-396, 5-95-312
Hearing Nos. 330-97-8007X, 330-97-8008X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUES
Whether the agency complied with the terms of its June 1993 FAD.
Whether the agency improperly dismissed Complaint Numbers 5-93-396 and
5-95-213 upon the issuance of the Administrative Judges's (AJ) June 1997
finding of reprisal.
BACKGROUND
The record reveals that complainant, an Air Traffic Control Specialist at
the agency's Houston Air Route Traffic Control Center, Southwest Region
facility, filed a formal EEO complaint with the agency on February 9,
1990, alleging that the agency had constructively discharged him on
the basis of his race (White). On June 30, 1993, the agency issued
its final agency decision (FAD) finding discrimination and ordering the
following: (a) reinstate complainant to his position as an Air Traffic
Control Specialist GS-2152-14, with back pay and all benefits within
established personnel practices he would have accrued had he not been
forced to resign on January 31, 1990; (b) ensure that supervision of
complainant not be by certain supervisory personnel; (c) enroll those
supervisory personnel in management courses to ensure that they will
acquire the necessary skills to properly supervise employees; and (d)
pay attorney's fees which are appropriate and allowable.
On November 16, 1993, complainant filed a Notice of Noncompliance with the
agency for enforcement of its FAD. On November 22, 1993, the agency filed
a response to complainant's Notice of Noncompliance. According to the
agency, it had enforced provisions (a) - (c) of the June 30, 1993 FAD.
The agency stated that it had not complied with provision (d) of the
June 30, 1993 FAD in regards to attorney's fees. The agency stated that
complainant's attorney submitted fees of over $64,000, which seemed to be
inappropriate considering the procedural posture of the case. The agency
determined that $10,050 was appropriate for complainant's attorney's fees.
On December 1, 1993, complainant filed a formal EEO complaint (Agency
No. 5-93-396) claiming that the agency was not in compliance with
provisions (a) and (d) of the June 30, 1993, FAD. Complainant also
claimed that the agency forced him to take holiday leave on Christmas
Day which prevented him from receiving holiday pay. On April 5, 1994,
the agency issued a �Notice of Compliance� indicating that it had provided
the ordered relief. On March 28, 1995, complainant filed another formal
EEO complainant (Agency No. 5-95-312) claiming, inter alia, that the
agency was not in compliance with the June 30, 1993, FAD in regard to
the amount of tax deducted from the back pay, calculation of interim
earnings, and the amount of attorney's fees.
On November 11, 1995, complainant was removed after being Absent Without
Leave for seventy-eight (78) days. On December 11, 1995, complainant
filed an appeal with the Merit Systems Protection Board challenging
the termination.<1>
On July 22, 1996, the agency issued its FAD addressing complainant's
initial Notice of Noncompliance. Specifically, the agency found
compliance with all terms of the June 30, 1993, FAD with the exception
of provision (d), which had required the agency to pay complainant's
reasonable attorney fees. Therefore, the agency was ordered to pay
attorney's fees that were appropriate and allowable within 30 days.
On August 19, 1996, complainant appealed the July 22, 1996 FAD and we
docketed it as EEOC Appeal No. 01966266. On September 4, 1996, the
agency paid complainant attorneys' fees in the amount of $10,050.
On October 17, 1996, the Merit Systems Protection Board (MSPB) issued
its Initial Decision upholding the agency's removal of complainant.
On May 22, 1997, the MSPB issued its Final Order denying complainant's
petition for review. Subsequently, on June 24, 1997, complainant filed a
civil action in federal district court challenging the MSPB's decision.
It was determined by the agency that the civil action was unrelated
to the issues in complainant's then pending administrative cases so,
the agency refrained from dismissing the claims.
In June 1997, an EEOC AJ held a hearing on DOT Nos. 5-93-396 and
5-95-312 which involved issues of non-compliance. On November 14, 1997,
the Commission issued its decision on Appeal No. 01966266 vacating the
agency's decision that it had complied with provisions (a) - (c) of the
June 30, 1993 FAD and remanding those provisions for further processing.
The Commission also affirmed the agency's decision finding that it had
failed to comply with provision (d) of the June 30, 1993 FAD and remanded
provision (d) to the agency for compliance. In the Commission's remand
order, it was concluded that the agency had not provided any clearly
identified evidence showing that it was in fact in compliance with
provisions (a) - (c) of the June 30, 1993 FAD. Accordingly, the case
was remanded with orders to the agency to supplement the record with
evidence of its compliance.
On February 20, 1998, the agency issued a FAD stating that complainant
was still alleging non-compliance with the first three provisions of the
1993 FAD. The FAD found, however, that the agency had, in fact, complied
with the 1993 FAD. On March 4, 1998, we issued a Compliance Letter
wherein we agreed that the agency was in compliance with our November
14, 1997, decision ordering compliance. Subsequently, on March 14,
1998, complainant filed an appeal of the agency's February 20, 1998 FAD
(�Appeal B�) and we docketed it as EEOC Appeal No. 01983124.
Notwithstanding our March 4, 1998, finding, on July 30, 1998, the
AJ issued a Recommended Decision finding that the agency was not
in compliance due to reprisal discrimination against complainant.
Specifically, the AJ found that: (1) complainant engaged in prior
protected activity; (2) his supervisors were aware that he had engaged
in such activity; and, (3) he was removed from the agency within a
year of the FAD's issuance. The AJ also concluded that the agency's
proffered reason was a pretext for retaliatory motive. In his decision,
the AJ recommended that the agency: (1) pay complainant $67,851.09
for the improperly deducted outside income from the back pay award;
(2) pay complainant $27,590.68 for benefits not paid or reimbursed;
(3) pay complainant $57,807.76 for the extra tax burden he incurred as a
result of the back pay award; (4) pay complainant's attorney the original
attorney fee award of $70,500; and (5) prepare a report providing details
applicable to complainant's back pay award.
On August 28, 1998, complainant, without notifying the agency, amended
his federal district court complaint to include as an attachment the
Recommended Decision of the AJ. On or about September 30, 1998,
the agency was notified that complainant had filed a civil action
which allegedly included the claims set forth in the instant case.
Accordingly, on October 1, 1998, the agency issued a FAD which rejected
the AJ's Recommended Decision and dismissed the complaints finding them
subsumed by complainant's civil action. Complainant timely filed an
appeal of the agency's October 1, 1998 FAD (�Appeal B�) and we docketed
it as EEOC Appeal No. 01990481.
Subsequent to complainant's appeal, the federal district court summarily
dismissed complainant's action challenging the MSPB's decision affirming
his removal. The court, however, declined the agency's request that it
address the merits of complaint Nos. 5-93-396 and 5-95-312. The court
found that, notwithstanding the fact that these complaints had been
appended to complainant's amended court complaint, complainant did
not intend to litigate the issues raised in those complaints in that
civil action.
ANALYSIS
The Commission first notes that it administratively closed EEOC Appeal
No. 01983124 in order to consolidate all issues in the instant decision.
29 C.F.R. � 1614.606. Both Appeal A and Appeal B arise out of the
parties' ongoing dispute regarding compliance with the June 1993 FAD.
Despite their obvious similarities, each appeal made its way to the
Commission through distinctly different procedural routes.
Appeal A raises compliance issues growing out of a decision rendered
by the Commission on November 12, 1997, in EEOC Appeal No. 01966266.<2>
In that decision, the Commission remanded this matter to the agency for
payment of attorney's fees and clarification of the extent to which there
were outstanding issues regarding compliance with the June 1993 FAD.
On February 20, 1998, the agency issued its third FAD in connection with
Agency Complaint No. 5-90-237<3>, and submitted a copy to the Commission's
Compliance Division. In this manner, the agency reported that it had
complied with all of the terms of the June 1993 FAD, including the
payment of $10, 050 in attorney's fees; an amount it determined to be
�reasonable and allowable.�
Appeal B arises from the agency's dismissal of Agency Complaints
Nos. 5-93-396 and 5-95-312. These complaints were filed in December 1993
and March 1995, respectively. They were heard by an AJ in June 19997.
As noted above, the complaints raised compliance issues relating to the
June 1993 FAD inasmuch as complainant was alleging that the agency's
noncompliance was in reprisal for his prior protected activity.<4> On
July 31, 1998, the AJ issued a decision essentially finding the agency
guilty of reprisal with respect to its noncompliance (or inadequate
compliance) with certain aspects of the June 1993 FAD. On October 1,
1998, the agency dismissed Complaint Nos. 5-93-396 and 5-95-312, finding
that they were encompassed by the district court action that complainant
had filed in 1997.
The Agency's Compliance with the June 1993 FAD
With respect to issue 1 (raised in EEOC Appeal A) the record reflects
an SF50 effecting complainant's reinstatement as of February 1993.
It is undisputed that health and life insurance benefits were restored
when complainant reported for duty. The record also reflects that, in
January 1994, the agency provided complainant back pay in the amount of
$170,099.40. The record does not indicate that complainant was actually
supervised by officials A, B, or C. There appears to be no current
dispute with regard to whether officials completed the training provided
for in the 1993 FAD. In any event, the record reflects that they did.
Finally, the record reflects that the agency has paid complainant $10,000
in attorney's fees.
In Appeal A, complainant argues that the agency improperly calculated
his back pay when it treated $37,650 in earnings from his business as
�interim� earnings for purposes of the back pay calculation. Complainant
contends that this amount constituted �moonlighting� earnings and should
not have been deducted from his back pay. This contention is premised
on complainant's argument that he received earnings from his business
while he was employed with the agency. The Commission cannot determine,
from the evidence in this record, precisely how much of the referenced
$37,650 represented earnings realized as a result of complainant's
increased availability to work in his business between 1990 and 1993.
Any such amounts would properly be deemed �interim� earnings and thus
deductible from back pay. McNeil v. United States Postal Service, EEOC
Petition No. 04990007 (December 9, 1999). The Commission finds, however,
that it is not necessary to quantify this amount. The record reflects an
October 13, 1993, letter from complainant's counsel in which he indicates
that complainant �did not seek� alternative employment during the period
in question.<5> It is therefore likely that most (if not all) of the
referenced earnings resulted from complainant's increased availability to
work in his business after his separation from the agency in January 1990.
Complainant further argues that the agency improperly failed to
withhold $35,317.99 in taxes when it provided his back pay. However,
the record reflects that this error was corrected on February 13,
1995, when the agency issued him a corrected W-2. Complainant also
argues that the agency improperly failed to compensate him for costs he
incurred in securing health insurance during his three year separation.
The Commission finds that reimbursement for such costs would be in the
nature of compensatory damages. See Flythe v. Department of the Army,
EEOC Appeal No. 01972258 (April 11, 2000). However, the 1993 FAD (which
complainant did not appeal) did not provide for such damages. Therefore,
the agency's failure to reimburse complainant for the cost of his health
insurance did not constitute non compliance with the 1993 FAD.
In regard to complainant's arguments regarding the requirement that he
not be supervised by officials A, B or C, the Commission finds that the
agency has complied with this provision of the 1993 FAD. The Commission
makes this finding notwithstanding complainant's contentions regarding
the fact that one of these officials approved certain forms authorizing
his training.
In regard to the issue of attorney's fees, complainant appears to argue
that the $10,000 paid by the agency is insufficient. Complainant suggests
that it is �reasonable and appropriate� that his counsel be paid more
than $64,000 for work performed in connection with Complaint No. 90-237.
The Commission finds, however, that such an award is not supported by
the record.<6>
Moreover, the contentions of the parties in this appeal indicate that
the dispute centers around the meaning of �appropriate and allowable�
as that phrase is used in the 1993 FAD to describe attorney's fees.
The Commission cannot conclude on the basis of the current record that
the agency's failure to pay more than $64,000 in attorney's fees was
tantamount to a failure to comply with the 1993 FAD. In the absence
of credible evidence to the contrary, the Commission finds that the
agency's fee payment of $10,000 for the period November 1990 to October
1993 (the period Complaint No. 90-237 was in the investigation stage) is
reasonable. The record supports additional fees in the amount of $6,060
for the period October 1993 to November 1993 in connection with efforts
to secure full compliance with the 1993 FAD. Finally, in light of the
agency's contribution to the confusion surrounding complainant's efforts
to secure compliance, the Commission herein finds that he is entitled
to an additional award of fees in connection with the prosecution of
this appeal, as well as his prior appeal (i.e., EEOC Appeal No. 01966266).
The Agency's Dismissal of Complaint Nos. 5-93-396 and 5-95-213
With respect to the dismissal of Complaint Nos. 5-93-396 and 5-95-213
(raised in Appeal B), the record reflects that, contrary to provisions
of 29 C.F.R. � 1614.504, complainant filed, and the agency accepted for
processing, two separate complaints relating to the agency's alleged
retaliatory noncompliance with its 1993 FAD. These complaints raised
issues that were essentially �spin offs� of the compliance issues
encompassed by Complaint No. 90-237. These complaints were nonetheless
heard by an AJ who issued a decision on July 31, 1998. Instead of
issuing a decision on the merits, as required by 29 C.F.R. � 1614.110,
the agency dismissed the referenced complaints on October 1, 1998, upon
finding that the issues raised therein were encompassed by complainant's
then pending district court action.
The Commission finds that the agency committed procedural error in
dismissing the referenced complaints after the AJ's decision. However,
we conclude that such error, in the context of this case, is harmless.<7>
EEOC regulations do not authorize complainants to file retaliation claims
to address compliance issues arising from a previous complaint. Agencies
are required to comply with final decisions. See 29 C.F.R. � 1614.504.
When they fail to do so, the motive for that failure is irrelevant.
Cf. Lambert v. SSA, EEOC Request No. 05990820 (November 8, 1999) (motive
for agency's failure to provide required official time not relevant).
Where there is a dispute regarding compliance with a final decision,
the matter must be processed in accordance with 29 C.F.R. � 1614.504.
The Commission finds that the compliance issues raised in Complaint
Nos. 5-93-396 and 5-95-312 should not have been heard by an AJ.
The Commission further finds that it was particularly inappropriate for
the parties to litigate these complaints before an AJ when they knew that
essentially the same claims were pending before the Commission in EEOC
Appeal No. 01984121. The AJ's decision in Complaint Nos. 5-93-396 and
5-95-312 is, therefore, VACATED. The issues raised therein are hereby
subsumed by the ORDER below.
CONCLUSION
EEOC Appeal No. 01990481 is REMANDED to the agency with instructions
to process complainant's attorney's fees request in a manner consistent
with this decision.
ORDER
The agency is to pay complainant an additional $6,060 in attorney's fees.
In addition, complainant must submit a sufficiently detailed itemized
statement of his counsel's fees with regard to the prosecution of EEOC
Appeal Nos. 01983124 and 01966266. The agency shall thereafter issue
a FAD in connection therewith.
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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 13, 2002
__________________
Date
1 In his MSPB appeal, complainant alleged,
inter alia, that his removal was based on reprisal for his filing of
EEO Complainant Nos. 5-90-237, 5-93-396 and 5-95-312.
2 As previously noted, EEOC Appeal No. 01966266 was filed by the
complainant after the agency issued a FAD in connection with his November
16, 1993 �Notice of Noncompliance� with the June 1993 FAD.
3 The record indicates that the agency denominated this matter as Agency
Complaint No. 5-90-237R after the remand.
4 The AJ also heard one additional issue not related to compliance.
It involved complainant's allegation that he was unlawfully denied the
opportunity to earn holiday pay. For the reasons set forth below, the
Commission finds this claim subsumed by complainant's 1997 court action.
5 Although not raised as an issue in this appeal, it is well settled
that complainants have a duty to mitigate their damages by seeking
suitable alternative employment. See, 706(g) of Title VII, as amended,
42 U.S.C. � 2000e-5(g).
6 The record contains an October 9, 1993, summary description of several
categories of activities of complainant's counsel from November 1990 to
October 1993. This summary, alone, is insufficient to form the basis
of a fee award. In addition, the reasonableness of much of the time
expended by counsel on such activities as �consultation� and �informal
discovery� is questionable given that this matter was being investigated
by the agency for most of this period.
7 It appears, in any event, that all of complainant's reprisal/compliance
issues could be deemed barred by the doctrine of claim preclusion.
While it is true that the district court found that complainant did
not seek, in his action, to adjudicate the claims raised in Complaint
Nos. 5-93-396 and 5-95-213, it is clear that such claims could have been
raised. The doctrine of claim preclusion, which is designed to avoid
piecemeal litigation, bars the subsequent litigation of claims that
could have been asserted in an action that adjudicated to finality.
See generally, Magallanes v. Department of Justice, EEOC Request
No. 05900176 (July 13, 1990).