05970101
02-05-1999
Bobby E. Davis, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Bobby E. Davis v. Department of Transportation
05970101
February 5, 1999
Bobby E. Davis, )
Appellant, ) Request No. 05970101
) Appeal No. 01955648
v. ) Agency No. 92-0134
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
________________________________)
DECISION ON RECONSIDERATION
INTRODUCTION
On October 30, 1996, Bobby E. Davis (hereinafter referred to
as appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Davis v. Dep't of Transportation, EEOC Appeal No. 01955648 (September
25, 1996). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law or regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's
request is denied. The Commission, however, exercises its discretion
and reconsiders the previous decision on its own motion.
ISSUE PRESENTED
The issue presented is whether the previous decision properly
determined that appellant's request for attorney's fees was premature.
BACKGROUND
In November 1991, appellant--a GM-14 Logistics Management Specialist in
the National Airspace Integrated Logistics Support Program Division--filed
an EEO complaint alleging that the agency discriminated against him on
the bases of his race (black) and age (51) with respect to the following:
1) Management's actions from September 1990 to October 1991, to minimize
my level of production by delaying, disapproving, and/or transferring
my work products and assignments.
2) Management's withdrawal of contractor support to my work projects.
3) Management's continued reversals of supervisor's directions involving
my work.
4) Supervisor's falsification of documents and misrepresentation
in statements concerning his directions to me and my responses to
directions.
5) Supervisor's failure to provide for performance improvement and
performance feedback during performance evaluation period.
In December 1991, appellant amended his complaint to include the
following:
6) Management and supervisor's reprisal by rendering unsatisfactory
performance appraisal on me.
7) Management's reprisal by proposing my removal from position.
As relief, appellant requested the following corrective action:
1) A performance rating of fully successful or higher.
2) Transfer to an organization outside of NAS Transition and
Implementation Service and to a position that affords me equal employment
opportunity and career advancement.
3) Above actions taken without reprisal.
In a February 1992 memorandum, the agency offered to hold the proposed
removal in abeyance while appellant completed a detail to the position
of GM-14 Logistics Management Specialist in the Systems Maintenance
Service of the Maintenance Engineering Division. The memorandum
indicated that the purpose of the detail was to "allow [appellant]
an extended opportunity period to improve [his] performance to a fully
acceptable level." The memorandum stated that:
This offer of a detail is conditional upon your agreeing to withdraw
any action on any complaint, claim, grievance, appeal, and/or cause of
action, and costs and expenses, known or unknown, which you may now have
in any administrative or judicial forum against the agency...arising
from your employment with the agency pertaining to the Proposed Notice
of Removal....
Should you improve your performance to a fully acceptable level during
this extended opportunity period, we agree to rescind [the Notice of
Proposed Removal]....
Appellant accepted the detail and, in conjunction therewith, indicated
that he was withdrawing allegation 7. In a March 1992 acceptance letter,
the agency notified appellant that it was accepting his complaint,
including allegation 7, for investigation. In March 1993, upon
completion of the investigation, appellant requested a hearing before
an EEOC Administrative Judge (AJ). Appellant also advised that he was
amending his complaint to include a claim of compensatory damages.
Prior to the hearing, the agency requested that the AJ remand the
complaint to the agency on the grounds that the complaint was moot. The
AJ did so and the agency subsequently issued a final decision dismissing
the complaint for mootness, i.e., appellant had been transferred to a
different organization; there was no unsatisfactory performance rating in
his record; and, appellant had received a rating of fully successful.
In Davis v. Dep't of Transportation, EEOC Appeal No. 01942065 (August 23,
1994), the Commission reversed the agency's dismissal of appellant's
complaint. At the outset, the Commission determined that appellant
was not entitled to compensatory damages regarding allegations 1-6
because the incidents at issue had occurred before the enactment of
the 1991 Civil Rights Act. The Commission then found that allegations
1-5 were not moot and ordered the agency to request a hearing on
those allegations. The Commission also found insufficient evidence to
conclude that allegation 6 was moot. Although the evidence showed that
the performance appraisal at issue in allegation 6 had been destroyed,
there was no indication as to whether a new performance appraisal
had been issued for that rating period. Consequently, the Commission
remanded that allegation for a supplemental investigation. Finally,
the Commission noted that the status of allegation 7 was unclear and
directed the agency to reissue a FAD clarifying same.
In its July 1995 FAD, the agency indicated that on June 30, 1995, it
had requested a hearing before an EEOC AJ regarding allegations 1-5.
With respect to allegation 6, the agency noted that it had been ordered to
determine whether appellant had been issued a new performance appraisal
to replace his previous unsatisfactory appraisal. The agency noted
that the supplemental investigation had shown that appellant's official
personnel file had been purged and that the only performance appraisal
remaining was the 1993 rating of "fully successful." With respect to
allegation 7, the agency determined that appellant had withdrawn the
allegation pursuant to the parties' February 1992 settlement agreement.
In his July 20, 1995 letter to the agency's Office of Civil Rights,
appellant advised that he considered the agency's request for a hearing
to be "extremely untimely..." given that his original hearing request was
made in March 1993 and that the Commission's August 23, 1994 decision had
ordered the agency to request a hearing within 60 days. Appellant noted
that since his original hearing request and the August 23, 1994 decision,
"numerous motions, decisions, and actions have occurred which negate
the basis for the original [hearing] request." Appellant also advised
that he had retired from Federal service and "no longer have [sic]
some of the concerns that mandated the original request for a hearing."
Appellant asserted that "at this point, I am only interested in being
reimbursed for the legal expenses which I have incurred. Then I wish to
conclude this complaint."<1> Appellant attached a copy of the attorney's
invoice for professional services rendered.
Appellant also sent a copy of the above letter to the Commission, which
was docketed as an appeal from the FAD. Upon review, the previous
decision found that appellant was not disputing the agency's dismissal
of allegations 6 and 7, and affirmed the FAD. The previous decision
noted that appellant was seeking reimbursement for attorney's fees.
The previous decision found that appellant had not argued that he was a
prevailing party and, in any event, the record indicated that allegations
1-5 had not yet been resolved. Consequently, the previous decision found
that there was "no reason to award attorney's fees at this stage of the
processing of the complaint."
In his reconsideration request, appellant contends that he was a
prevailing party because the agency ceased its efforts to remove him
from Federal service; the unsatisfactory performance rating was removed
from his records; he received a merit increase for the rating period;
his pay was adjusted retroactively, i.e., he received back pay and his
retirement annuity was recomputed on that basis; and, he was granted an
organizational transfer in accordance with the corrective actions sought.
In response, the agency appears to contend that appellant is precluded
from recovering attorney's fees with respect to allegation 7 by operation
of the parties's February 1992 settlement agreement.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
Appellant does not challenge the previous decision's dismissal of
allegations 6 and 7, and our own review of that decision failed to
disclose any error therein. Consequently, we find that appellant's
request fails to meet any of the statutory criteria for reconsideration
and we therefore deny the request.
The Commission, however, exercises its discretion and reopens the previous
decision on its own motion for the reasons set forth below.
In his July 20, 1995 letter to the agency, appellant advised that
he no longer wished to pursue his remaining claims and sought only
reimbursement for attorney's fees. Appellant attached to this letter
an invoice for professional services from the attorney. The Commission
finds that appellant's July 20, 1995 letter was a request for attorney's
fees which properly was submitted to the agency.
Contrary to the agency's assertions, the Commission finds that the
settlement agreement does not preclude appellant from requesting
reimbursement for attorney's fees. In this regard, the settlement
agreement states only that appellant agreed to withdraw "any action...and
costs and expenses...." The agreement does not specify that appellant
is waiving his right to request attorney's fees. See generally
Parks v. Dept' of the Air Force, EEOC Request No. 05880609 (June 27,
1988)(waiver of attorney's fees must be express).
Absent an express waiver of attorney's fees, the question of appellant's
entitlement to attorney's fees turns on whether he is a "prevailing
party." An individual may be considered a "prevailing party" for purposes
of Title VII even if there is no formal adjudication of the complaint
and no finding of discrimination. See Hewitt v. Helms, 482 U.S. 755,
760-61 (1987). A prevailing party for purposes of obtaining attorney's
fees is one who succeeds on any significant issue, and achieves some
of the benefit sought in bringing the action.<2> Hensely v. Eckerhart,
461 U.S. 427, 433 (1983). It also is well-settled that entitlement to
attorney's fees may arise as a result of a settlement agreement between
the parties. See, e.g., Baldwin v. Dep't of Health and Human Services,
EEOC Request No. 05910016 (April 12, 1991).
On remand, the agency shall determine whether appellant is a prevailing
party and, if so, the amount of attorney's fees to which he is entitled.
CONCLUSION
After a review of appellant's request for reconsideration, the
agency's response, the previous decision, and the entire record, the
Commission finds that appellant's request for reconsideration fails to
meet the criteria of 29 C.F.R. �1614.407(c), and the request hereby is
DENIED. The Commission, however, reconsiders the previous decision on its
own motion. The decision in EEOC Appeal No. 01955648 hereby is AFFIRMED,
AS MODIFIED.
ORDER
The agency is ORDERED to process appellant's July 20, 1995 request
for attorney's fees. The agency shall determine whether appellant is
a prevailing party and, if so, the amount of attorney's fees to which
he is entitled. Prior to doing so, the agency shall allow appellant
the opportunity to present evidence and argument to show that he is
a prevailing party. Within thirty (30) days of its receipt of this
decision, the agency must issue a final decision--with appeal rights to
this Commission--regarding appellant's attorney's fees request.
The agency is directed to send a copy of the FAD to the Compliance
Officer, as provided in the statement entitled "Implementation of the
Commission's Decision."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF APPELLANT'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Feb. 5, 1999
Date Frances M. Hart
Executive Officer
1 Appellant indicated that in settlement negotiations between the agency
and his former counsel, the agency had offered to pay $6500.00 in
attorney's fees. Appellant further indicated that this was less than
the $7,456.51 he had incurred in legal fees and that the agency had not
explained why it would not pay the entire amount. He also complained
that he had not been included in the settlement negotiations and that his
former counsel had not advised him of the nature of these negotiations.
2 At the same time, a complainant would not be a prevailing party
as to unsuccessful, discrete claims in the same complaint. Hensely
v. Eckerhart, 461 U.S. 427, 440 (1983). In this case, appellant would
not be considered a prevailing party with respect to the five allegations
that he withdrew.