Alline B.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

May 14, 2020

0720180028 (E.E.O.C. May. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alline B.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 0720180028 Hearing No. 531-2016-00182X Agency No. OCO-14-0859-SSA DISMISSAL OF APPEAL The Agency appeals to the Equal Employment Opportunity Commission (EEOC or Commission) rejecting an EEOC Administrative Judge’s (AJ) decision awarding Complainant attorney’s fees and costs regarding her complaint alleging 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. For the following reasons, the Agency’s appeal is DISMISSED. At the time of events giving rise to this complaint, Complainant worked as a Benefits Authorizer/Claims Representative, GS-11/7, at the Agency’s Office of Earnings and International Workforce Initiatives, Division of International Operations in Baltimore, Maryland. On November 14, 2014, Complainant filed her complaint alleging discrimination in reprisal for prior EEO activity when she was subjected to harassment from January 15, 2013 and ongoing. After the investigation of the complaint, Complainant requested a hearing before an AJ. The AJ scheduled an initial status conference on June 14, 2016. Discovery was closed in November 2016. The parties submitted their prehearing statements in November and December 2016. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0720180028 2 The prehearing conference took place on January 23, 2017. At that time, the hearing date was set for July 20 - 21, 2017. Upon the parties’ request, the hearing was postponed to August 15 - 16, 2017, to allow for settlement discussions. A settlement conference took place on August 3, 2017, which did not result in settlement. On August 7, 2017, the Agency filed a Supplemental Prehearing Report to request several additional proposed hearing exhibits, four new fact witnesses, and one new expert witness not previously disclosed during discovery or prior to the prehearing conference. Complainant filed objections. On August 10, 2017, the Agency produced new proposed prehearing exhibits. On August 12, 2017, the Agency supplemented its discovery responses. On August 16, 2017, the AJ issued an Order to Show Cause for the Agency forcing a postponement of the case to allow approval of additional witnesses. On August 28, 2017, the Agency filed its Response to the Order to Show Cause. On September 19, 2017, Complainant filed her Reply to the Response. The AJ postponed the hearing and approved the new witnesses the Agency offered, except the expert witness. The AJ allowed Complainant to take their depositions. Complainant’s attorney deposed the four witnesses. On October 4, 2017, the AJ issued an Order indicating that the Agency would be ordered to pay the costs of Complainant’s post-discovery depositions. Accordingly, Complainant’s attorney submitted to the AJ Complainant’s Verified Fee Petition dated February 22, 2018, asking for a total of $7,368.25 for the attorney’s fees ($5,989.20) and costs ($1,379.05). The Agency did not file a response opposing Complainant’s petition. On March 8, 2018, the parties entered into a settlement agreement resolving the complaint. The settlement agreement provided, in the pertinent part, that: 2.a. The Agency will pay Complainant and her attorneys a lump sum payment of $50,000.00 to be divided for damages and attorneys’ fees as they see fit. 12. Nothing in this Settlement Agreement shall be deemed as an admission, obligation or waiver in any claim(s) associated with any Sanctions Order issued in this case. On June 12, 2018, the AJ issued the Memorandum and Order Imposing Sanctions Pursuant to Order to Show Cause and Decision on Attorney’s Fees (Memorandum and Order) awarding Complainant attorney’s fees and costs due to the need to postpone the hearing and conduct discovery. 0720180028 3 Specifically, the AJ noted the Agency’s addition of new witnesses not identified during discovery so close to the hearing to pursue a new defense theory forced a delay in the hearing and caused Complainant to incur deposition expenses. The AJ noted that the attorney charged Complainant $350.00 per hour based on their retainer agreement. The AJ, applying the lodestar method, i.e., by multiplying a reasonable hourly fee and a reasonable number of hours expended, determined that Complainant incurred and was entitled to attorney’s fees for 12.9 hours of attorney time plus four hours during travel. Thus, at $350.00 per hour for 12.9 hours and half the rate (at 50%) for four travel hours, the AJ awarded $5,215.00 in the attorney’s fees. The AJ noted Complainant requested $1,379.05 in costs for deposition transcripts and parking fees for the depositions. The AJ noted the Agency did not file any opposition to the Petition and, thus, did not interpose any objections to Complainant’s claim for costs. The AJ awarded $1,379.05 in costs. Based on the foregoing, the AJ issued an Order of Dismissal on June 19, 2018 dismissing the case as a result of the March 8, 2018 settlement agreement. Attached to the Order of Dismissal was the Order Entering Judgment addressing the outstanding attorney’s fees that were specifically excluded from the March 8, 2018 settlement agreement, ordering the Agency to pay Complainant attorney’s fees and costs in the total amount of $6,594.05 ($5215.00 in fees and $1,379.05 in costs). Therein, the AJ attached a notice informing the parties of their appeal rights notifying the Agency to issue its final order in accordance with the regulations. The Agency was clearly advised, if the final order does not fully implement the AJ’s decision, it should simultaneously file an appeal to the Commission in accordance with 29 C.F.R. § 1614.403. The Agency did not issue a final order. On July 15, 2018, the Agency filed the present appeal. Complainant filed a brief opposing the Agency’s appeal. Pursuant to 29 C.F.R. § 1614.110(a), the agency is required to take final action on the complaint by issuing a final order within 40 days of receipt of the hearing file and the AJ’s decision. If an agency decides not to fully implement the decision of an AJ, then the agency must issue a final order and simultaneously file an appeal with the Commission in accordance with 29 C.F.R. § 1614.403. A copy of the appeal must be appended to the final order. If the agency does not issue a final order and file an appeal simultaneously with the issuance of the order, as here, the AJ’s decision will be deemed ratified by the agency upon the expiration of the agency’s 40-day period for accepting or not accepting the AJ’s decision. See 29 C.F.R. § 1614.109(i); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § III(B)(1) (Aug. 5, 2015). 0720180028 4 In the instant case, although the Agency filed an appeal with the Commission following the AJ’s decision awarding Complainant her attorney’s fees and costs for the expenses for her post- discovery depositions, it failed to issue a final order. According to guidance provided in EEO MD-110, Chap. 9 § II(B)(2)(b), when an agency does not intend to fully implement the decision of an AJ, the final order serves notice on the complainant that the agency has filed an appeal of the AJ’s decision with the Commission, that the complainant has the right to file his/her own appeal of the agency’s final order with the Commission, that the complainant may file a separate appeal from the agency’s final order to challenge any errors complainant may believe the AJ may have committed, and gives complainant notice that any such appeal must be filed within 30 days of the agency’s final order. The agency is also required to provide complainant with a copy of EEOC Form 573, Notice of Appeal/Petition at this time. The final order is also used to notify complainant of his/her right to file a civil action in federal district court, the name of the proper defendant in any such lawsuit, and the applicable time limits for appeals and lawsuits. See 29 C.F.R. § 1614.110(a); Martin v. Dep’t of HHS, EEOC Appeal No. 0720100029 (Mar. 18, 2011); Willett v. Dep’t of the Interior, EEOC Appeal No. 0720090018 (June 9, 2010). There is no evidence that the Agency provided the foregoing information to Complainant in this case. Thus, we find that the decision of the AJ awarding Complainant $6,594.05 for attorney’s fees and costs has become the Agency’s decision Accordingly, the Agency’s appeal is hereby DISMISSED. The Agency is ordered to comply with the Order set forth below. ORDER The Agency, within 30 calendar days of the date this decision is issued, shall pay to Complainant $5,215.00 in attorney’s fees and $1,379.05 in costs, totaling $6,594.05. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 0720180028 5 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0720180028 6 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 14, 2020 Date