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.