0520150012
03-09-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520150012
Appeal No. 0120120536
Hearing No. 170-95-8514X and 170-95-8515X
Agency No. 933313
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in Complainant. v. Department of Veterans Affairs, EEOC Appeal No. 0120120536 (August 18, 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).
At the time of events giving rise to the underlying complaint, Complainant worked as a Chief of Staff at the Agency's Medical Center in Altoona, Pennsylvania. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Australian) and disability when his temporary appointment was terminated effective May 29, 1993. He filed a second EEO complaint alleging discrimination on the basis of reprisal when, on June 14, 1993, he was issued a bill of collection for physician's special pay in the amount of $25,404.50. An EEOC Administrative Judge consolidated the two complaints for hearing and found no discrimination with respect to Complainant's termination, but concluded he was subjected to retaliation with respect to the bill of collection.
The finding of unlawful retaliation was affirmed on appeal and the matter was remanded to the Agency for an investigation to determine Complainant's entitlement to remedies, including compensatory damages. Williams v. Department of Veterans Affairs, EEOC Appeal No. 01961412 (March 24, 1998). Following the compensatory damages investigation, the Agency issued a final decision, received by Complainant's attorney on November 21, 1999, on Complainant's entitlement to remedies, including compensatory damages. Complainant appealed this decision. On December 7, 2001, this Commission issued a decision vacating the Agency's decision on remedies and remanding the remedies issues for a hearing. Williams v. Department of Veterans Affairs, EEOC Appeal No. 01991492 (December 7, 2001).
The EEOC Administrative Judge assigned to the case issued a decision awarding Complainant $5,000 in compensatory damages, $20,487.50 in attorney's fees, and $5,650 in costs.1 Complainant appealed the judge's decision, arguing he was entitled to increased remedies. Our prior appellate decision in EEOC Appeal No. 0120120536 (the subject of the instant request for reconsideration) affirmed the EEOC Administrative Judge's remedial award with respect to compensatory damages and attorney's fees.
In his request for reconsideration, Complainant argues that the amount of compensatory damages should be significantly increased and that the Administrative Judge who wrote the compensatory damages decision was not the same judge who held the hearing so could not make credibility findings. We find, however, that the amount of compensatory damages was not set based on credibility of the witnesses, but rather on the determination that much of the harm claimed by Complainant resulted from his termination, which was not found to be discriminatory, rather than the issuance of the retaliatory bill of collection. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
With respect to attorney's fees, Complainant argues that the previous decision erred in affirming the AJ's determination that he would only be compensated for fees incurred as of November 21, 1999, the date he received the final agency decision concerning compensatory damages that prompted the appeal that resulted in a remand for a hearing on damages. Complainant asserts that his attorney should also be compensated for work performed between March 31, 1998 and November 21, 1999, related to the Agency's processing of his claim for compensatory damages.
Upon careful consideration of the arguments presented in the request, we agree with Complainant that his attorney is entitled to an additional fee award for 39.5 hours of work (at an uncontested hourly rate of $275) performed directly and exclusively in support of Complainant's request for compensatory damages. This additional award encompasses legal work performed from March 31, 1998 (starting with the attorney's receipt of the March 24, 1998 EEOC decision affirming the finding of unlawful retaliation and remanding the matter to the Agency for an investigation into the claim for compensatory damages) through November 21, 1999 (the last date prior to the attorney's fees already granted by the Administrative Judge and affirmed by our previous decision). The record is clear that Complainant eventually prevailed on his claim that he was entitled to an award of compensatory damages, so all reasonable attorney's fees incurred to prove that entitlement should be paid. See 29 C.F.R. � 1614.501(e); EEOC's Management Directive 110 (MD-110) (Nov. 9, 1999), Chapter 11.
After reviewing the previous decision and the entire record, the decision in EEOC Appeal No. 0120120536 is MODIFIED to provide for additional attorney's fees as detailed in the Order below. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
Within 30 days of the date this decision becomes final, to the extent that it has not already done so, the Agency shall:
1. Pay Complainant $ 5,000 in compensatory damages; and
2. Pay Complainant a total of $ 31,350 in attorney's fees and $ 5,650 in costs;
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
March 9, 2015
__________________
Date
1 Complainant's attorney had already been awarded fees and costs for earlier portions of the successful processing of the retaliation claim.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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