Agency.

Equal Employment Opportunity CommissionDec 22, 2003
01A24729_01A31102 (E.E.O.C. Dec. 22, 2003)

01A24729_01A31102

12-22-2003

Agency.


Roni Atkins & Colleen W. Carson v. Department of Agriculture

01A24729 & 01A31102

December 22, 2003

.

Roni Atkins & Colleen W. Carson,

Claimant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal Nos. 01A24729 & 01A31102

Agency No. 87087

DECISION

The claimants timely initiated two appeals from a consolidated final

agency decision (FAD) concerning their claims for relief under a class

action settlement agreement. The appeal is accepted pursuant to 29

C.F.R. � 1614.405.

The claimants filed claims for relief in 1995. Ultimately, after lengthy

litigation, the Commission found that they were entitled to relief,

and ordered various remedies. McBride, Carson & Atkins v. Department of

Agriculture, EEOC Appeal Nos. 01A05825, 01A05826, & 01A03372 (February

2, 2002).

Following the order, the claimants' attorney filed attorney fee and

cost petitions. The FAD ruled on the petitions, and the claimants filed

their appeals from the FAD.<1>

In his requests for attorney fees and costs, the claimants' attorney,

through the date of his fee request to the agency, wrote that in

representing claimant Atkins he worked 64.5 hours and advanced costs of

$62.62, and in representing claimant Carson he worked 36.70 hours and

advanced costs of $53.41. The attorney stated that in non-contingent

matters, his normal billing rate is $140 per hour.

The agency paid attorney fees for all the hours claimed at $140 per hour

and all the costs claimed. The claimants attorney argues that he should

get a fee enhancement for the complexity, difficulty, and length of time

it took to file and pursue the claims after the settlement. He noted

that the agency did not respond to information requests during the fact

finding procedure and repeatedly fought providing relief. While the

litigation in this case was protracted, there is no showing here of

intentional delaying tactics. The administrative process had many steps,

including filing a claim, appeals to the EEOC, and an EEOC fact finder,

all of which took time to process and adjudicate. Further, while the

litigation was not smooth, it was not sufficiently complex and difficult

to justify an enhancement.

Accordingly, the claimants' appeals are denied.

ORDER

To the extent it has not already done so, the agency is ordered to:

1. Pay claimant Atkins $9,030 in attorney fees and $62.62 in costs

within 30 calendar days after this decision becomes final;

2. Pay claimant Carson $5,138 in attorney fees and $53.41 in costs

within 30 calendar days after this decision becomes final.

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 verifying

that the corrective action has been implemented.

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 22, 2003

__________________

Date

1The appeal file also contained papers submitted by the claimants'

attorney which he characterized as a petition for enforcement and a

memorandum thereon, that made contentions regarding remedial issues.

These matters have been referred back to the Commission's compliance

officer for action.