01970199
02-14-2000
Donna Davis, Complainant, v. Rodney E. Slater, Secretary, U.S. Department of Transportation (Federal Aviation Administration), Agency.
Donna Davis v. U.S. Department of Transportation
01971633
February 14, 2000
Donna Davis, )
Complainant, )
) Appeal No. 01971633
v. ) 01970199
) Agency No. 5-95-218
Rodney E. Slater, )
Secretary, )
U.S. Department of Transportation )
(Federal Aviation Administration), )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning her request
for attorney's fees. The appeal is accepted in accordance with EEOC
Order No. 960.001.<1>
Pursuant to Fed. Reg. 37,644, 37,661 (July 12, 1999)(to be codified
and hereinafter referred to as 29 C.F.R. � 1614.606)), the Commission
consolidated EEOC Appeal No. 01970199 and EEOC Appeal No. 01971633.
For the following reasons, the Commission MODIFIES and REMANDS the
agency's final decision.
ISSUE PRESENTED
Whether the agency properly denied complainant's request for attorney's
fees.
BACKGROUND
On December 15, 1994, complainant filed a complaint alleging that the
agency discriminated against her on the bases of race (African-American),
color (Black), and reprisal (prior EEO activity). On June 4, 1995,
the agency accepted the following two claims of discrimination:
1. Whether complainant was denied accelerated promotion to GS-9,
because of her race (Black), color (Black), and in reprisal for prior
EEO activity;
2. Whether complainant was denied overtime on September 16, 1994,
because of her race (Black), color (Black) and in reprisal for previous
EEO activity.
According to complainant's attorney, complainant objected to the manner in
which her complaint was framed. On July 17, 1995, complainant requested
a hearing since it had been over 180 days since the date on which she
filed her complaint.
Complainant's case was referred to an administrative judge (AJ) pursuant
to her request in September 1996. Thereafter, a dispute arose as to the
agency's failure to investigate the complaint. Complainant argued that
the agency should pay the discovery costs, such as depositions, due to its
failure to investigate her complaint. In response to this request, the
AJ determined that although payment of discovery costs was an appropriate
sanction, she would instead remand the case to the agency on January 23,
1996, for an investigation to be completed in thirty days. However,
the AJ permitted complainant to depose certain relevant witnesses,
being mindful that she may ultimately bear the burden of the cost for
the depositions.
Apparently, the agency timely completed its investigation pursuant to the
AJ's order. On May 6 and May 7, 1996, the AJ held a hearing at which
19 witnesses testified. On July 8, 1996, the AJ issued a recommended
decision. Therein, she defined complainant's complaint as follows:
Did the agency discriminate against the complainant on the bases of
her race (African-American), and/or color and/or reprisal when: (i) her
evaluation for the period ending March 31, 1994, was lowered; (ii) she was
denied overtime on or about September 16, 1994; (iii) she was not selected
for an assignment to the Drug and Alcohol Unit (DUI Unit) in October 1994;
(iv) a comparative (Caucasian) was preselected for a computer specialist
analyst position; (v) she was denied an accelerated promotion to a GS-7/9;
and (vi) she was subjected to a hostile work environment.
In her analysis of complainant's hostile work environment claim, the AJ
listed the following evidence which complainant presented in support of
her harassment claim:
(i) co-worker A threw a pen at her; (ii) co-worker A told her that her
performance appraisal for the period ending March 31, 1994, would be sent
to the Personnel Office with a notation that the complainant would not
sign the form; (iii) co-worker B made a statement to the effect that as a
Legal Instruments Examiner she would have to sit next to the complainant
for the next 15-20 years; (iv) during March of 1994, co-worker C commented
that he would not training any G-d damn N---ers in the DUI unit; (v)
During September of 1994, co-worker A referred to the complainant as,
"one of them now"; (vi) during October 1994, a co-worker was told by
another co-worker to "watch what you say or you will be sitting back
in a corner by yourself; (vii) during October 1994, the complainant was
required to submit a SF-171 prior to being promoted to Legal Instruments
Examiner grade GS-7; (viii) co-worker A repeatedly denied complainant
training that would have increased her promotion potential.
In her decision, the AJ found complainant was discriminated against
when she was denied an assignment to the DUI unit in October 1994, and
when she was subjected to a hostile work environment. In support of
complainant's hostile work environment claim, the AJ found complainant
established a prima facie case of hostile work environment only with
respect to the statements made by co-worker C. The AJ also found that
co-worker C made the statements with sufficient frequency such that
management should have known of the statements.
With respect to her remaining claims, the AJ found complainant failed
to raise an inference of discrimination. Also, the agency proffered
legitimate, nondiscriminatory reasons which complainant failed to prove
were a pretext for discrimination.
As a remedy, the AJ ordered that complainant be provided the opportunity
to work in the DUI unit. The agency was ordered to undertake an
investigation into co-worker C's conduct, and take disciplinary action
if appropriate.<2> Also, the AJ found complainant proved entitlement to
compensatory damages, and ordered the agency to compensate complainant
for her emotional harm, and medical expenses. Further, the agency was
ordered to pay all back pay related to sick leave, post a notice, and
pay all reasonable attorney's fees.
On September 3, 1996, the agency issued a final decision adopting the
AJ's decision, but modifying the recommended remedy. Specifically, the
agency stated complainant should submit objective evidence supporting
her claim of compensatory damages, and directed complainant's attorney
to submit a fee petition.
On October 7, 1996, complainant, through her attorney, submitted
correspondence to this office in an attempt to initiate an appeal,
which was docketed as EEOC Appeal No. 01970199. In that correspondence,
complainant's attorney stated he wrote the Commission, "solely to clarify
whether the agency's modification to the AJ's order is in lieu of, rather
than in addition to the remedies directed in the recommended decision."
On November 20, 1996, the agency filed a motion to dismiss EEOC Appeal
No. 01970199, stating that the remedies set forth in the final decision
were in addition to the AJ's recommended decision. On December 12,
1996, complainant's attorney wrote the Commission and stated that the
agency's representation resolved the issue in EEOC Appeal No. 01970199.
Meanwhile, on October 10, 1999, complainant's attorney filed a fee
petition with the agency. Therein, he requested $63, 154.14 in attorney's
fees and costs. He submitted an affidavit detailing his experience,
and claimed an hourly rate of $175 for himself, $75 for his law clerk,
and $40 for his legal assistant. The attorney also attached an itemized
list of the hours and expenses spent on the case.
On or about November 8, 1996, the agency issued a final decision on
the fee petition. The agency determined that the amount requested
constituted excessive billing, lacked sufficient documentation,
and were unauthorized. The agency also determined that fees for
the unrelated non-prevailing claims must be reduced. Specifically,
the agency determined that complainant was successful only on 2 out of
her 13 claims of discrimination, and the fees should be reduced by 2/13
(.153). The agency determined, therefore, that the attorney was entitled
to $6, 447.56 in fees and costs. This appeal followed. Thereafter,
we consolidated EEOC Appeal No. 01970199 with EEOC Appeal No. 01971633.
ANALYSIS AND FINDINGS
By Federal regulation, an agency must award attorney's fees, in accordance
with existing case law and regulatory standards, for the successful
processing of an EEO complaint. 64 Fed. Reg. 37, 644, 37, 659 (1999)(to
be codified and hereinafter referred to as 29 C.F.R. � 1614.501(e). The
fee awarded is normally determined by multiplying the number of
hours reasonably expended on the case by a reasonable hourly rate.
Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424
(1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B). The attorney requesting
the fee award has the burden of proving, by specific evidence, his or
her entitlement to the requested amount of attorney's fees and costs in
the matter. Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1983).
FEES
Reasonable Hourly Rate
We note there is no dispute as to the attorney's hourly rate of $175
per hour. Rather, the agency argues that the law clerk's hourly rate of
$75 per hour is excessive. The agency contends that the average hourly
rate for a law clerk is roughly $40-45 per hour. We disagree. The agency
failed to provide any support for its position that a reasonable hourly
rate for a law clerk in the area is $40-$45 per hour. Also, we note that
this law clerk was not a law student, but rather, had graduated from
law school, attained her J.D. Degree and was an applicant to the Bar.
The attorney provided documentation in support of this hourly rate,
which we deem to be reasonable.
Reasonable Hours Expended
An applicant for attorney's fees is entitled only to an award for time
reasonably expended. It does not follow that the amount of time actually
expended is the amount of time reasonably expended. Consequently, fees
may not be awarded where time was spent on unsuccessful claims, where
an attorney engaged in nonproductive work, or where extraneous time
was billed because a case was overstaffed. Veteran's Education Project
v. Secretary of the Air Force, 515 F. Supp. 993, aff'd mem., 679 F.2d 263
(D.C. Cir. 1982). Applicants preparing an attorney's fees petition must
use their professional "billing judgment" in arriving at the lodestar
figure and must be prepared to document their claim with "contemporaneous,
complete, and standardized time records which accurately reflect the work
done... ." National Ass'n of Concerned Veterans v. Secretary of Defense,
675 F.2d 1319 (D.C. Cir. 1982) (per curiam). The burden of justifying
any deviation from a fee calculation of reasonable hours times reasonable
hourly rate rests on the party proposing the deviation.
In the agency's FAD, the agency disallowed a total of $20, 699.75 of the
attorney's requested $55,435.25 in fees, and disallowed $432.22 in of
the attorney's requested $7, 837.64 in costs. Then, the agency further
reduced the amount to represent those claims for which complainant did
not prevail. We will first examine the fees disallowed by the agency,
and then examine the costs.
Law Clerk's Disallowed Hours
The agency disallowed 4.9 hours for services rendered by the law clerk
pending clarification of the services performed. The services listed
included requests for interrogatories, and phone calls to the agency.
After a careful review of the attorney's lengthy brief on appeal, we
find no clarification of these hours. In the absence of sufficient
documentation, we agree with the agency that 4.9 hours at $75 per hour
should be disallowed.
The agency then disallowed 8.9 hours for work completed by the law clerk
with respect to witnesses. Specifically, the agency disallowed 5 hours
on 12/6/95 for failure to identify the name of the witness and .50 hours
when a witness failed to appear for a deposition on 1/30/96. Also,
the agency disallowed 3.4 hours total for time spent on the following
dates, as the work performed did not relate to issues involved in the
present complaint: 2/24/96, 3/4/96, 3/4/96, and 3/8/96. Although the
attorney argues the witness interview charge on 12/6/95 was properly
billed, he failed to name the witness interviewed. Both the Commission
and complainant's attorney agree with the remaining deductions, and
therefore we disallow 8.9 hours at $75 per hour.
The agency then disallowed .90 hours of work performed by the law clerk
related to her attempts to amend the complaint. The agency maintained
the attorney could not claim attorney fees for an amendment that never
took place. Also, the agency disallowed .30 hours for time spent on bill
collection matters related to the non-payment of the deposition bill.
The attorney agrees with both of these deductions, and as such, 1.2
hours at $75 per hour are disallowed.
The agency disallowed an additional 26.5 hours of the law clerks hours.
Specifically, the agency found that her discovery work on 12/9/96 and
attendance at the EEO hearing on May 6, 1996, and June 14, 1996, was
excessive, redundant, or otherwise unnecessary. We agree with the agency
that 6.5 hours spent on drafting a notice to depose 39 witnesses was
excessive and was properly disallowed. We also agree with the agency
that the law clerk's attendance at the hearing was redundant, given
the attorney's presence at the hearing. The Commission has previously
disallowed fees for the services of a second attorney as being redundant.
See Woloszyk v. Department of the Army, EEOC Request No. 05900905 (January
3, 1991). Although complainant's attorney claims on appeal that the law
clerk presented several witnesses, we are unable to discern such from
his fee petition. As such, we are unable to agree with complainant's
attorney that there was no duplication of work performed by the law clerk
at the EEO hearing. Therefore, we agree with the agency's disallowance
of 26.5 hours at $75 per hour for work performed by the law clerk.
Law Clerk's Work on Depositions
The agency then disallowed 19.7 hours of work performed by the law
clerk related to depositions taken during discovery ordered by the
administrative judge. The agency stated in its decision that the hours
were disallowed since the services "appear to be outside the scope
of the legal services that can be rendered by and/or billed for a law
clerk under the laws of the State of Oklahoma." Specifically, the agency
disallowed 6.5 hours on 1/16/96; 5 hours on 1/17/96; 4 hours on 1/25/96,
and 4.2 hours on 1/29/96. A review of the fee petition reveals that the
hours claimed were for preparation of depositions, travel to and from the
depositions, the taking of the depositions, and settlement discussions.
Pursuant to Sections 706(k) and 717(d) of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. 2000e-5(k) and 2000e-16(d),
a prevailing federal employee is entitled to an award for reasonable
attorney's fees incurred in the successful prosecution of a Title VII
claim. The law also allows the attorney's fees award to include an
award for services rendered by law clerks, paralegals or law students
if any such person provides professional services under the supervision
of an attorney. See, e.g., 64 Fed. Reg. 37, 644, 37, 660(1999)(to be
codified and hereinafter referred to as 29 C.F.R. � 1614.501(e)(1)(iii));
and Sullivan v. Department of the Treasury, EEOC Appeal No. 01962021 (May
15, 1998). The regulations do not distinguish the properly compensable
services of a law clerk.
In essence, the regulations provide that a prevailing complainant must be
represented by an attorney for an attorney's fee award under Title VII,
and the fee award may include compensation for the time spent by such
non-attorneys and the legal assistants and law clerks who provided any
legal assistance in the matter under the supervision of the attorney.
See, Sullivan, EEOC Appeal No. 01962021. However, where the complainant
is not in fact represented by an attorney, no such fee award can be made
for the services of the non-attorney representative even if the latter
occasionally consulted an attorney in connection with such representation.
Id. Therefore, in this case, had the law clerk provided the service,
not under the supervision of a licensed attorney, then the fees would
not be compensable. Here, however, the complainant was represented
by a licensed attorney, and time was spent by a law clerk under the
supervision of the licensed attorney. The agency has never maintained
that the law clerk actually represented the complainant, or that she was
not properly supervised by the attorney during the services she provided.
The agency cited no authority for their argument that a law clerk may
not conduct a deposition for an EEOC administrative proceeding, such as
this, when supervised by a licensed attorney. Additionally, we are not
persuaded by the agency's position in light of the bargain it received for
the services rendered. Had the attorney conducted the deposition himself,
the agency would have been properly billed at $175 per hour, instead of
the law clerk's rate of $75 per hour. Given the agency's failure to
provide any substantive argument in support of their position, and in
light of the benefit it received, we decline to disallow these hours.
The fees were properly billed to the agency.
Counsel's Disallowed Hours
As referenced above, complainant's attorney initially appealed the
agency's final decision requesting clarification of the decision.
In the final decision related to the instant fee petition, the agency
disallowed 10.5 hours for this work performed by the attorney as it was
unnecessary to the instant complaint. Specifically, the agency found
that the 10.5 hours complainant's attorney spent on the preparation
of the appeal brief for EEOC Appeal No. 01970199,was not necessary to
the complaint. Complainant's attorney agrees with this determination.
As such, 10.5 hours at $175 are properly disallowed.
The agency also disallowed 9.625 hours for various work the attorney
performed on discovery matters related to the case. Specifically, the
agency determined that the work the attorney performed was re-work of the
law clerk's work. Therefore, the agency found this work was duplicative.
The attorney agrees with the agency, and therefore, we find that 9.625
hours at $175 per hour were properly disallowed by the agency.
The agency then disallowed 39.25, or half of the 79.25 hours billed
by the attorney for hearing preparation and attendance at the hearing
as excessive. We disagree with the agency's determination. The fee
petition in the instant case clearly demonstrates that the law clerk
performed the majority of the investigatory functions, including witness
preparation. We therefore find that it was reasonable for the attorney
to spend some time reviewing the issues and evidence in order to prepare
for the hearing. Instead of the agency's determination, we find that the
attorney billed unreasonably for one day, April 27, 1996. Therefore, we
disallow 7.25 of the 19.25 hours billed for that day. Accordingly, 7.25
hours at $175 per hour are properly disallowed for hearing preparation.
With respect to the hearing days themselves, we agree with the agency
that the attorney may have billed excessively, claiming 15 hours of
work per day. However, we do not agree with the agency's determination
as to a reasonable amount of time spent on the hearing. Specifically,
we find that 10.5 hours per day of hearing was properly billed at $175
per hour. This accounts for the lengthy hearing as documented in the
record, as well as meetings both before and after the hearing. We also
permit 1 hour per day travel time at 50% of the attorney's hourly rate.
We have previously held that travel time should be billed at 50% of the
usual hourly rate since little productive effort is accomplished during
this time period. See, Black v. Department of the Army, EEOC Request
No. 05960390 (December 9, 1998); Johnson v. Department of the Army,
EEOC Appeal No. 01933776 (June 2, 1994); Thorburn v. Defense Logistics
Agency, EEOC Appeal No. 01891799 (1989).<3> Therefore, 8 hours total
are disallowed from his request.
COSTS
Finally, the agency disallowed $432.22 of the $7,837.64 in costs requested
by the attorney, as being unsupported by documentation. After a review
of the fee petition, and the attorney's argument on appeal, we disagree
with the agency's rationale for not allowing these expenses.
SUMMARY
To this point, we find complainant's attorney properly billed $46, 132.13
in fees (including the law clerk's services), and $7,837.64 in costs.
However, in the instant case, complainant was successful in proving
discrimination in only two of her six issues before the AJ: (1) when
she was not assigned to the DUI Unit, and (2) when she was subjected to
a hostile work environment. Complainant's attorney argues on appeal
that the agency erred in applying an "across the board reduction" to
the fees in this case since there is a common core of facts or related
legal theories. Therefore, complainant's attorney argues the proper
method of determining his fees is to examine whether the "excellent"
results obtained allows for a basis to award the reasonably expended fees.
We disagree with the attorney's contentions in this regard. Complainant's
claims are varied, and involve multiple individuals. We therefore find no
common core of facts such that the "results obtained" should be examined.
Unfortunately, complainant's attorney has not provided sufficient
information from which we can determine what number of hours were
reasonably expended in furtherance of complainant's successful claims.
Courts and the Commission have recognized that a superior method
to address this situation is to take a percentage across-the-board
reduction of compensable time billed. See, e.g., McKenzie v. Kennickell,
645 F. Supp. 437, 446-51 (D.D.C. 1986); Hatfield v. Dept. of the Navy,
EEOC Appeal No. 01892909 (December 12, 1989). Accordingly, inasmuch as
complainant was successful on only two of her six claims, and the attorney
has not met his burden of identifying the subject matter on which time
was spent by submitting sufficiently documented detailed contemporaneous
time records, the Commission finds that an across-the-board reduction
is warranted in the present case.
Despite the agency's contention to the contrary, we do not find the
instant complaint alleges 13 allegations, for which complainant was
successful in proving discrimination on two. Rather, we find the
complaint alleges six claims of discrimination. She successfully
proved discrimination on two of her claims, one of which was a hostile
work environment. The evidence produced by complainant, and referenced
by the administrative judge, is complainant's evidence in support of
her claim of hostile work environment, and are not additional issues.
We find the agency's characterization of this complaint as containing
13 separate claims to be a deliberate attempt to fragment and reduce
the amount of attorney's fees for which complainant is entitled.
Therefore, we have reduced the attorney's fees as referenced above
($46,132.13) by 2/3, for a total of $15,684.92. Complainant's attorney's
costs remain at $7,837.64.
ADDITIONAL HOURS REQUESTED ON APPEAL
On appeal, complainant's attorney states that additional hours have
been expended since he submitted the fee petition. Specifically,
on October 10 and October 11, 1996, he spoke with the complainant,
and wrote two letters to the agency in response to their request for
medical documentation. These tasks were billed for 4 hours at $175 per
hour and were in an attempt to ensure the agency's compliance with the
final decision. Additionally, complainant's attorney states that two
hours of a deposition were not included in the original fee petition,
and requests payment for those two hours. Finally, the attorney claims
that he worked 33.5 hours on the appeal for the fee petition.
As an initial matter, we find complainant's attorney's request for items
he neglected to include in his initial fee petition to be untimely,
and we therefore decline to include payment for such. With respect to
the four hours the attorney claimed as spent in compliance attempts, the
attorney is advised that he first must submit this request for additional
fees to the agency pursuant to 64 Fed. Reg. 37, 644, 37, 660(1999)(to
be codified and hereinafter referred to as 29 C.F.R. � 1614.501(e)(2)).
With respect to attorney's fees for the instant appeal, in Black
v. Department of the Army, EEOC Request No. 05960390 (December 9,
1998), the Commission departed from its earlier precedent related to
appeals from fee petitions. Previously we determined that appeals from
fee petitions should not exceed 3% of the hours in the main case when
there was no hearing, or 5% where the matter involved a hearing, such
in this case. Now, the Commission uses a "reasonableness standard"
when determining an attorney's entitlement to fees for preparing and
litigating a fee petition. Considering the attorney's experience in
these matters, we find a more reasonable amount would be five hours,
$875, for litigating the fee petition.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
MODIFY the agency's award of attorney's fees, and REMAND the case for
payment of attorney's fees as set forth below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. Within ten (10) days of the date on which this decision becomes final,
the agency shall tender the following to complainant's attorney:
fees in the amount of $15, 684.92;
costs in the amount of $7, 837.64; and
fees related to the fee petition appeal in the amount of $875.00.
Inasmuch as the attorney made a further request to the Commission for
payment for additional hours (4 hours @ $175 per hour) incurred subsequent
to the October 7, 1996 fee petition, we REMAND this request to the
agency pursuant to 64 Fed. Reg. 37, 644 , 37, 660(1999)(to be codified
and hereinafter referred to as 29 C.F.R. � 1614.501(e)). The agency
shall request additional information from the attorney, if necessary, to
enable it to make a fully informed decision on this additional request
for attorney's fees. Both the agency and the attorney shall make all
possible efforts to agree upon reasonable attorney's fees.
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 including
evidence that the corrective action has been implemented.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
February 14, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2In that regard, the AJ noted the agency terminated co-worker C on June
14, 1996.
3We note that the attorney failed to indicate the amount of time spent
in traveling to and from the hearing. We have, therefore, allowed one
hour of travel time per day.