Dorothy L. Toman, Complainant,v.John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01A24139 (E.E.O.C. Oct. 27, 2003)

01A24139

10-27-2003

Dorothy L. Toman, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Dorothy L. Toman v. Department of the Treasury

01A24139

October 27, 2003

.

Dorothy L. Toman,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

(Internal Revenue Service),

Agency.

Appeal No. 01A24139

Agency Nos. 97-3176, 97-3237, 97-3111, 98-3003

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

affirms the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Special Agent, GS-1811-13, in the Internal Revenue

Service, Midwest District Office at the Milwaukee, Wisconsin facility.

In complaints filed on April 18, 1997 and July 1, 1997 (complaints 1 and

2), complainant alleged that she was discriminated against and harassed

in reprisal for prior EEO activity. In complaints filed on February 5,

1997 and October 6, 1997 (complaints 3 and 4), complainant alleged that

she was discriminated and subjected to harassment in reprisal for prior

EEO activity. At the conclusion of the investigations, complainant was

informed of her right to request hearings before an EEOC Administrative

Judge or alternatively, to receive final decisions by the agency.

Complainant requested that the agency issue final decisions for her

complaints.

The agency issued two final decisions (FAD). In its decision for

complaints 1 and 2, the agency found that complainant failed to

establish a prima facie case of retaliation. In its second decision,

the agency found that complainant, while establishing a prima facie

case of reprisal, failed to show that the incidents were sufficiently

severe or pervasive to alter the conditions of her employment to

create an abusive work environment. She appealed the decisions and

EEOC consolidated her appeals. EEOC found that the agency was liable

for harassment. See Toman v. Department of the Treasury, EEOC Appeal

Nos. 01982655/01986842 (September 4, 2001), requests to reconsider denied,

EEOC Request Nos. 05A20063/05A20064 (March 14, 2002). The agency was

found to have retaliated against complainant in violation of Title VII

and ordered to pay reasonable attorney's fees. The agency issued a FAD,

on June 26, 2002, awarding $20,936.00 in attorney's fees and costs.

On appeal, complainant does not dispute the agency's award of attorney's

fees and costs up to and including the fees and costs incurred in the

request to reconsider. However, she contends that additional fees and

costs were incurred since then and there is the possibility that more fees

and costs will be incurred in the future in connection with compliance.

The agency makes no contentions on appeal. .

Should complainant incur subsequent legal fees in connection with

compliance, she should submit a fee petition to the agency. The

Commission has held that "because a complaint is not fully processed

until a complainant has received all the relief due him or her for

the agency's prior discrimination, attorney's fees are available

for successful compliance efforts when such efforts are necessary."

See Bermudez v. United States Postal Service, EEOC Appeal No. 01913300

(October 2, 1991), request to reopen granted, EEOC Request No. 05920122

(November 30, 1992) (modifying the initial decision, but not altering

the holding that attorney's fees are available for successful compliance

efforts when such efforts are necessary). Complainant should submit the

petition for fees and costs to the agency within a reasonable period of

time after they are incurred.<1>

Since complainant has not contested the amount of fees awarded in the June

26, 2002 FAD, and her request for any future fees should be initially

raised with the agency and not with the Commission, we decline to find

that complainant has placed before us an issue ripe for adjudication.

This appeal is therefore dismissed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 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 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 (S0900)

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 (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

October 27, 2003

__________________

Date

1 It appears that complainant did so and that

the agency responded by issuing a FAD on September 26, 2002, addressing

the issue of supplemental attorney's fees and costs incurred between

October 21, 2001, and July 2, 2002 and awarding complainant approximately

$6,711.00. The Commission has no record of an appeal of the September

26, 2002 FAD.