0520140359
03-20-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520140359
Appeal No. 0720130033
Hearing No. 450-2012-00234X
Agency No. ARRRAD11AUG03556
DENIAL
The Agency timely requested reconsideration of the decision in Complainant v. Department of the Army, EEOC Appeal No. 0720130033 (April 24, 2014). 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(c).
In the underlying case, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of race (African-American) when: (1) on May 17, 2011, it removed him from the overseas theatre for insubordination; and (2) on August 25, 2011, it terminated his term appointment.
The appellate decision affirmed an EEOC Administrative Judge's (AJ) decision, without a hearing, which found no discrimination but awarded Complainant $5,596.02 in attorney's fees and costs as a sanction against the Agency.1 The appellate decision noted that the Agency had argued the following on appeal: (a) a 2003 opinion from the Department of Justice's Office of Legal Counsel (DOJ opinion) concluded that the doctrine of sovereign immunity precludes the EEOC from imposing monetary sanctions against federal agencies for violations of AJ orders; and (b) the Agency risked a potential Antideficiency Act violation if it paid monetary sanctions not authorized by law. The appellate decision, however, found that the EEOC has the authority to award attorney's fees and costs as a sanction. In so finding, the appellate decision noted that the Agency's arguments were thoroughly and squarely addressed - and rejected - in Mirabal v. Department of the Army, EEOC Appeal No. 0720120007 (November 9, 2012), request for reconsideration denied, EEOC Request No. 0520130236 (March 17, 2014).
In its request for reconsideration, the Agency contended that the appellate decision involved a clearly erroneous interpretation of law. The Agency reiterated its previous arguments involving sovereign immunity and the Antideficiency Act.
After reviewing 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(c), and it is the decision of the Commission to DENY the request. Specifically, we find that the arguments raised in the Agency's request were considered and addressed in the appellate decision. Moreover, we find that the appellate decision is consistent with Commission precedent awarding attorney's fees and costs as a sanction. See Comer v. Fed. Deposit Ins. Corp., EEOC Request No. 05940649 (May 31, 1996); Stull v. Dep't of Justice, EEOC Appeal No. 01942827 (June 15, 1995); see also Waller v. Dep't of Transp., EEOC Appeal No. 0720030069 (May 25, 2007) (rejecting the agency's arguments involving sovereign immunity and the DOJ opinion), request for reconsideration denied, EEOC Request No. 0520070689 (Feb. 26, 2009).
The decision in EEOC Appeal No. 0720130033 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ordered to pay Complainant $5,596.02 in attorney's fees and costs within thirty (30) calendar days of receipt of this decision.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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.
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 (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
__3/20/15________________
Date
1 The AJ sanctioned the Agency for its failure to timely investigate Complainant's complaint.
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0520140359
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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