Ruth M. Jaramillo, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 6, 2001
01991009_r (E.E.O.C. Jul. 6, 2001)

01991009_r

07-06-2001

Ruth M. Jaramillo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Ruth M. Jaramillo v. United States Postal Service

01991009

July 6, 2001

.

Ruth M. Jaramillo,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01991009

Agency No. 4E-800-2235-93

DECISION

Complainant file an appeal with this Commission from an agency decision

pertaining to her complaint of unlawful employment discrimination in

violation of the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal

in accordance with 29 C.F.R. � 1614.405.

On September 23, 1993, complainant filed a formal complaint claiming

that she was discriminated against when she was terminated, effective

August 13, 1993, for customer complaints and cash shortages. Following

an investigation, complainant requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a Recommended Decision finding

discrimination based on age. The agency did not adopt the AJ's findings.

Complainant filed an appeal from the final agency decision.

On appeal, the Commission affirmed the AJ's decision. The agency was

ordered to reinstate complainant to her former position, provide back pay,

interest, seniority, leave, other employee benefits, and �any incurred and

reasonable attorney's fees.� Jaramillo v. United States Postal Service,

EEOC Appeal No. 01964901 (August 17, 1998).

On October 8, 1998, the agency issued a decision which is the subject

of the instant appeal. The agency concluded that complainant was not

entitled to attorney's fees and costs. Citing the prior Commission

decision, the agency noted that age was the only accepted claim.

The agency concluded that complainant was not entitled to such payment

because the ADEA does not provide for attorney's fees and costs at the

administrative level.

The Commission has consistently held that the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. does

not provide for the award of attorney's fees for Federal sector

complaints at the administrative level. See Seymour v. Department of

Veterans Affairs, EEOC Request No. 05900257 (July 20, 1990); Anderson

v. Department of the Navy, EEOC Appeal No. 01960716 (August 27, 1998).

The Commission does not have the authority to order a Federal agency to

pay attorney's fees in administrative ADEA cases due to the doctrine of

sovereign immunity. In this case, the doctrine of sovereign immunity

means that Congress made no provision for attorney's fees in the amended

ADEA so it did not expressly waive its immunity. Thus, the Federal

government cannot be held liable for attorney's fee in administrative

ADEA cases.

In the instant case, our prior decision clearly noted that while

complainant's complaint also alleged discrimination based on national

origin, it was not accepted as a basis or addressed by the AJ or agency.

The national origin claim was considered abandoned by both complainant

and the agency. Therefore, the finding of discrimination was based

solely upon age and the agency's denial of attorney's fees and costs

was appropriate.

Accordingly, the agency's decision not to pay attorney's fees and costs

was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

July 6, 2001

__________________

Date