0120111266
08-31-2012
Charlotte N. Morrow, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Charlotte N. Morrow,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01201112661
Agency No. 4H-327-0042-05
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's October 19, 2010 appeal concerning her entitlement to attorney's fees.2
ISSUE PRESENTED
The issue presented on appeal is whether Complainant is entitled to attorney's fees totaling $5,463.20.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Services, EAS-17, at an Agency post office in Pittsburgh, Pennsylvania. On April 9, 2005, Complainant filed an EEO complaint alleging that she was discriminated against on the basis of sex (female) when, on or about January 10, 2005, the Agency required that she undergo an additional Fitness-For-Duty Examination (FFDE) after she had already been cleared for duty. At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on August 24, 2006, and issued a decision on April 20, 2007. The Agency subsequently issued a final order declining to implement the AJ's finding that it violated the Rehabilitation Act, and appealed the AJ's decision to the Commission.
In Charlotte Morrow v. United States Postal Service., EEOC Appeal No. 0720070058 (November 13, 2009), request for reconsideration denied, EEOC Request No.0520100159 (May 28, 2010), the Commission affirmed the decision of the Administrative Judge (AJ), finding that the Agency violated the Rehabilitation Act. The Commission noted that the Agency improperly required Complainant to undergo a second FFDE notwithstanding that she had been cleared for duty after the first examination. The Commission modified the Agency's final order, directing the Agency to provide the relief ordered by the AJ. The Commission ordered the Agency, among other things, to pay Complainant non-pecuniary compensatory damages totaling $5,000.00, and $6,004.12 in attorney's fees and costs. The Commission further directed the Agency to pay Complainant additional attorney's fees because Complainant was the prevailing party on matters raised on appeal.
On December 11, 2009, Complainant's attorney, upon receipt of the Commission's final decision in 0720070058, filed a timely petition for attorney's fees with the Agency for the work done on the appeal. A review of that petition reveals that Complainant's attorney requested payment for 27.3 hours at rate of $200.00 per hour with $3.20 in copying costs, totaling $5,463.20. The record is devoid of any Agency decision or documentation responding to Complainant's petition for attorney's fees. We also note that the Agency has not responded to the instant appeal.
ANALYSIS AND FINDINGS
By federal regulation, the agency is required to award attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. EEOC Regulation 29 C.F.R. � 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983).
The Commission's regulations pursuant to 29 C.F.R. � 1614.501(e)(2)(ii)(A) provide that an agency shall issue a decision determining the amount of attorney's fees or costs due within 60 days of receipt of the statement and affidavit in support of a request for fees or costs. We note that the Agency did not provide Complainant or her attorney with any such decision. Therefore, Complainant and her attorney were not provided with a right to appeal the Agency's denial of fees. We also note that the Agency did not respond to the instant appeal.
The Commission, in its discretion, may award the full amount of a request for attorney's fees where a federal agency is untimely in issuing a final decision on a fee request made pursuant to the provisions of its regulations. See Carroll v. U.S. Postal Serv., EEOC Appeal No. 01994040 (May 29, 2002); Morra-Morrison v. U.S. Postal Serv., EEOC Appeal No. 01972745 (June 18, 1998); Mason v. Dep't of the Interior, EEOC Request No. 05930678 (Jan. 14, 1994); Johnson v. Gen. Serv. Admin., EEOC Request No. 05910549 (Aug. 29, 1991); Fields v. Dep't of Commerce, EEOC Request No. 05900510 (June 25, 1990).
The Commission finds that the Agency's action not to consider Complainant's attorney's fee petition when it was filed amounted to unreasonable and unwarranted delay. To avoid further delay in this matter, rather than remanding the case back to the Agency for consideration, the Commission has independently reviewed the December 11, 2009, fee petition and found it to be reasonable as submitted. Therefore, the Agency will be ordered to promptly pay the full amount of the attorney's fees requested in that petition.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's contentions on appeal, we grant Complainant's request for attorney's fees and costs and REMAND this case to the Agency to take remedial action in accordance with the Order below.
ORDER
Within thirty (30) calendar days of this decision becoming final, the Agency is ordered to issue a check to Complainant's attorney in the amount of $ $5,463.20. The Agency shall submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include documentary evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 31, 2012
Date
1 The Commission originally docketed this matter as Compliance No.0620100601, which has been administratively closed.
2 Regulations provide that an agency issue a decision determining the amount of attorney's fees or costs due within 60 days of receipt of the statement and affidavit in support of a request for fees or costs. 29 C.F.R. � 1614.501(e)(2)(ii)(A). We note that the Agency did not provide Complainant or her attorney with such a decision. Therefore, Complainant and her attorney were not provided any right to appeal the Agency's denial of fees. Because the Agency should have given Complainant appeal rights to the Commission, we accept this appeal pursuant to 29 C.F.R. � 1614.405(a).
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0120111266
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111266