01991047
12-10-1999
Francis Patten, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Francis Patten, )
Complainant, )
)
v. ) Appeal No. 01991047
) Agency No. 92DARPA098
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
On November 10, 1998, complainant filed a timely appeal with this
Commission alleging that the agency breached their settlement agreement
dated May 27, 1998.<1> Specifically, complainant alleged that the agency
breached their agreement when it failed to pay him the full amount of
attorney's fees he submitted to the agency.
ISSUE PRESENTED
The issue on appeal is whether the agency breached its settlement
agreement with complainant.
BACKGROUND
Appellant filed a formal complaint on November 27, 1996, alleging
discrimination on the basis of age (61) when the director of his office
implemented a �rotational policy� whereby technical personnel would serve
the agency for a four year term and then leave the agency. In addition,
complainant alleged the director pressured him to seek other employment,
in furtherance of the �rotational policy.� In response to the November
27, 1996 complaint, complainant and the agency entered into a settlement
agreement, which in pertinent part read �DARPA shall pay reasonable
attorney's fees incurred by Complainant in pursuing his complaint.�<2>
With a letter dated May 8, 1998, complainant submitted statements of
attorney's fees totaling $7594.61 to the agency. <3> On July 16, 1998,
the agency agreed to pay complainant attorney's fees in the amount
of $5936.90, which is the amount the agency deemed reasonable.<4>
Complainant notified the head of the EEO office of his agency of the
noncompliance but he did not receive a response. This appeal followed.
On February 22, 1999, the agency refused to pay any of complainant's
attorney's fees stating such action is prohibited by EEOC rulings
pertaining to administrative ADEA cases.<5>
ANALYSIS AND FINDINGS
The Commission has consistently held that the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. does not
provide for the award of attorney's fees for Federal sector complaints at
the administrative level. See Seymour v. Department of Veterans Affairs,
EEOC Request No. 05900257(July 20, 1990); Anderson v. Department of Navy,
EEOC Appeal No. 01960716 (August 27, 1998). The Commission does not
have the authority to order a Federal agency to pay attorney's fees in
administrative ADEA cases due to the doctrine of sovereign immunity. Id.
In this case, the doctrine of sovereign immunity means that Congress
made no provision for attorney's fees in the amended ADEA so it did not
expressly waive its immunity. Id. Thus, the Federal government can
not be held liable for attorney's fees in administrative ADEA cases. Id.
On May 27, 1998, the agency entered into a settlement agreement with
complainant wherein it agreed to pay reasonable attorney's fees incurred
by complainant in pursuit of his ADEA complaint. When complainant
asked the agency for payment, originally, it agreed to pay an amount
of attorney's fees it considered reasonable but less than complainant
incurred. Then, the agency refused to pay any attorney's fees stating
such action was prohibited by EEOC precedent. Accordingly, the agency has
breached its settlement agreement with complainant and his complaint may
be reinstated for further processing from the point processing ceased.
64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.504(c)).
CONCLUSION
It is the decision of the Commission to REVERSE the agency's action and
order that the agency reinstate complainant's complaint of November 27,
1996 for further processing from the point processing ceased.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.108). The agency shall acknowledge to the
complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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).
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).
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").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:
December 10, 1999
____________________________
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.
2The settlement agreement was signed May 27, 1998.
3The bills were submitted to the agency prior to the date of the
settlement agreement in anticipation of the agreement's execution.
The total amount of attorney's fees rose to $7,777.90 on June 3 when
the fees and costs for May 1998 were included.
4Pursuant to 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. �1614.501(e)), the agency deemed
only the fees for services performed after the filing of a written
complaint as reasonable.
5The agency's letter dated February 22, 1999 was not in the record,
however, complainant's letter dated March 23, 1999 speaks to its content.