copy_of_05a50446_r
11-15-2005
Christine Holt, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Christine Holt v. Department of Veterans Affairs
05A50446
11/15/2005
.
Christine Holt,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A50446
Appeal No. 01A45274
Agency No. 200N-0648-2002-103816
DENIAL
Christine Holt (complainant) timely requested reconsideration of the
decision in Christine Holt v. Department of Veterans Affairs, EEOC
Appeal No. 01A45274 (December 21, 2004). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
It its prior decision, the Commission vacated the agency's final
decision finding no breach of a July 25, 2002 settlement agreement.
The settlement agreement provided, in pertinent part, that:
2(a) Medical staff will require that future OSHU residency orientation
will include specific training on the prevention of sexual harassment and
hostile work environment for continued VA funding of residency program.
2(b) Acting Chief of Surgery will take appropriate action against the
residents involved in the [underlying] complaint.
2(c) Urology residents will take VA web-based sexual harassment training
within 30 days of starting resident rotation at VAMC (but not required
more than once a year).
2(g) Acting Chief of Staff will take appropriate action against the
staff physician involved in the [underlying] complaint.
In its prior decision, the Commission foiund that it was unable to
determine whether the agency was in compliance with provisions 2(a),
2(b), 2(c), and 2(g), due to insufficient evidence in the record. The
Commission ordered the agency to supplement the record with documentation
reflecting whether it was in compliance with the settlement agreement and
to issue a new decision as to whether it was in breach of the settlement
agreement.
In her request, complainant, through her attorney, asserts that in
its prior decision, the Commission failed to award her attorney's
fees. Complainant's attorney asserts that complainant is a prevailing
party for two reasons. First, complainant's attorney states that
complainant is a prevailing party if the Commission modifies its initial
decision and finds that the agency breached provisions 2(a) and 2(c)
of the settlement agreement.
Second, complainant's attorney asserts that complainant is a prevailing
party because the Commission's prior decision ordered the agency to
supplement the record with documentation reflecting whether it is in
compliance with the settlement agreement. Complainant's attorney asserts
that �[this] outcome materially altered the legal relationship between
the parties because the [a]gency is legally bound to reveal information to
[complainant] which the agency previously claimed was secret...�
Upon review of the record, we find that the Commission's prior decision
properly determined that there was insufficient evidence in the record
as to whether the agency breached provisions 2(a), 2(b), 2(c), and
2(g) of the settlement agreement. In her request, complainant asserts
that the Commission should modify its initial decision and find that
the agency breached provisions 2(a) and 2(c); however, we disagree.
The Commission's initial decision properly remanded this matter to
the agency and ordered it to supplement the record with documentation
reflecting whether it is in compliance with these provisions.
The Commission also disagrees with complainant's attorney assertion
that complainant is entitled to attorney's fees because in its prior
decision, the Commission ordered the agency to supplement the record.
Title VII authorizes the award of reasonable attorney's fees. 29 C.F.R. �
1614.501(e). To establish entitlement to attorney's fees, complainant
must first show that he or she is a prevailing party. Buckhannon Bd. and
Care Home Inc. v. West Virginia Dept. of Health and Human Resources,
532 U.S. 598 (2001). A prevailing party for this purpose is one who
succeeds on any significant issue, and achieves some of the benefit
sought in bringing the action. Davis v. Department of Transportation,
EEOC Request No. 05970101 (February 4, 1999) (citing Hensley v. Eckerhart,
461 U.S. 427, 433 (1983)).
We find that complainant was not a prevailing party in the Commission's
prior decision because she did not succeed on any significant issue with
respect to her breach claim. Specifically, we note that the Commission
did not make a determination as to whether the agency was in compliance
with the settlement agreement. Instead, the Commission merely remanded
the matter to the agency to supplement the record and issue a new final
decision. Accordingly, we find that complainant is not entitled to
attorney's fees.
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 01A45274 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing that
it has complied with provisions 2(a) and 2(c) of the settlement agreement.
The supplementation of the record shall include any documentation
expressly indicating whether OHSU residency orientation included
specific training on the prevention of sexual harassment and hostile work
environment (provision 2(a)) and that Urology residents took VA web-based
sexual harassment training within 30 days of starting resident rotations
(provision 2(c)) following the execution of the settlement agreement.
The agency shall supplement the record with evidence describing with
specificity, the nature of the �appropriate action� taken against the
residents (provision 2(b)) and staff physician (provision 2(g)) involved
in the underlying complaint. The supplementation of the record shall
include any documentation and/or affidavits expressly indicating the
nature of the action taken against the residents and staff physician
following the execution of the of the settlement agreement.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a new decision concerning whether it breached
provisions 2(a) through 2(c) and 2(g) of the July 25, 2002 settlement
agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
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 (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
11/15/2005
Date