Elvis G., Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Aug 17, 2017

0120151470 (E.E.O.C. Aug. 17, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Elvis G.,
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.

Appeal No. 0120151470

Hearing No. 540-2009-00083X

Agency No. BLM-05-0497

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated March 12,
2015, concerning his 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
For the following reasons, the Commission AFFIRMS the Agency’s final decision.

In October 2005, Complainant filed a complaint claiming that the Agency discriminated against
him on the bases of disability (diabetes), age (54), and in reprisal for prior protected EEO
activity2 when:

From May 6, 2005, through December 2006, he was subjected to a hostile work
environment.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 Complainant originally included religion as a basis in his complaint. Prior to the hearing,
Complainant withdrew the basis of religion in his complaint.

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On June 18, 2007, the Agency dismissed Complainant’s complaint on the grounds that he had
filed an appeal on January 3, 2007, with the Merit Systems Protection Board (MSPB) on the
same matter.3 Complainant appealed the Agency’s dismissal.

On October 15, 2008, the Commission issued a decision noting that Complainant’s appeal to the
MSPB was from his removal for failure to accept a directed reassignment. EEOC Appeal No.
0120173454. The Commission found Complainant’s claims of a hostile work environment had
not been addressed before the MSPB and occurred before he was issued the directed
reassignment. Id. The Commission stated that Complainant’s claims regarding the directed
reassignment, breach of settlement agreement4, removal, and subsequent amendments need not
be addressed. Id. However, the Commission stated that Complainant’s claim of a hostile work
environment had not been addressed. Thus, the hostile work claim was remanded to the Agency
for investigation. Id.

Following the Agency’s investigation of the hostile work environment claim, Complainant
requested a hearing from an Equal Employment Opportunity Commission Administrative Judge
(AJ). The AJ held a hearing and issued a decision on February 22, 2010, finding that
Complainant was subjected to a hostile work environment based on his prior EEO activity from
May 2005 through the notification of his reassignment on July 7, 2006. The AJ found
Complainant did not establish he was subjected to discrimination on the remaining claims. The
AJ ordered the Agency to pay Complainant pecuniary damages, nonpecuniary damages, and
costs associated with the hearing. The Agency was also ordered to provide training and post a
notice.

In her decision, the AJ noted Complainant requested attorney’s fees in the amount of $68,426.09.
The AJ stated that no attorney appeared on behalf of Complainant during the hearings process of
his complaint. The AJ noted that “[a]lthough [Complainant] claimed that his attorney
represented him during the EEOC complaint and investigation, it is evidence from the
description of the charges that the attorney’s representation concerned Complainant’s MSPB
hearing and his breach of settlement claim.” The AJ noted the final entry for attorney’s fees
occurred before the Commission remanded Complainant’s hostile work environment case to the
Agency for investigation. Thus, the AJ denied Complainant’s request for attorney’s fees.

The Agency issued a final order fully implementing the AJ’s finding that Complainant proved
the Agency subjected him to discrimination in reprisal for protected EEO activity.

3 Complainant was removed from his position effective December 5, 2006, for failure to accept a
directed reassignment. The MSPB upheld the Agency’s removal decision. Complainant filed a
Petition for Review the MSPB’s decision and the Commission upheld the removal in EEOC
Petition No. 0320080052 (September 11, 2008).
4 Complainant’s breach of settlement claim was addressed in EEOC Appeal No. 0120071379
(September 11, 2008).

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Complainant filed an appeal from the Agency’s final order. The Commission issued a decision
in EEOC Appeal No. 0120102210 (August 20, 2012) noting Complainant failed to argue on
appeal how the AJ erred, and declining to alter the AJ’s decision. The Commission found there
was substantial evidence to support the AJ’s finding of discrimination and remedies.

Thereafter, Complainant filed a request for reconsideration. In EEOC Request No. 0520130030
(April 15, 2014), the Commission noted that “[a]lthough the previous decision erred in stating
Complainant did not submit an appellate brief or any specific arguments explaining why the AJ
erred, we find that it was not a material error, because after reviewing the submissions, the
outcome has not changed.” With regard to Complainant’s request for attorney’s fees, the
Commission stated that “while Complainant may have felt obligated to pay attorney[’s] fees for
other legal matters, we agree with the AJ that awarding attorney[’s] fees would be inappropriate
here, because he had no attorney working on his hostile work environment complaint.” The
Commission stated the decision in EEOC Appeal No. 0120102210 remains the Commission’s
decision.

The record reveals that in response to the Commission’s decisions in 0120102210 and
0520130030, Complainant filed a request for attorney’s fees for work done by his attorney on his
hostile work environment claim. Specifically, Complainant states that his attorney represented
him on his hostile work environment claim from May 3, 2006 through her retirement in January
2008. The documentation provided the final entry for attorney’s fees as occurring on December
17, 2007, for “delivery of closing arguments along with a copy of the hearing transcript to Judge
Kasic, MSPB.”

On March 12, 2015, the Agency issued a final decision on Complainant’s request for attorney’s
fees. The Agency determined Complainant was not entitled to any attorney’s fees. Complainant
appealed the Agency’s final decision which is now to be considered in this decision.

Upon review, we find Complainant’s claim for attorney’s fees for work done on his hostile work
environment is barred by the doctrine of res judicata. The EEOC AJ and the Commission’s
Office of Federal Operations both previously held that Complainant was not entitled to
attorney’s fees because he had no attorney working on his hostile work environment claim.
Thus, we find Complainant is precluded from relitigating his claim for attorney’s fees before the
Commission. Furthermore, because Complainant did not prevail in the instant appeal, there are
no attorney’s fees to be awarded for work done on the instant appeal.

CONCLUSION

Accordingly, the Agency’s final decision finding Complainant was not entitled to attorney’s fees
is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610)
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.

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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 17, 2017
Date