01973651
06-27-2000
Glenda Green et al., Complainant, v. Daniel R. Glickman Secretary, Department of Agriculture Agency.
Glenda Green et al. v .Department of Agriculture
01973651
June 27, 2000
.
Glenda Green et al.,
Complainant,
v.
Daniel R. Glickman
Secretary,
Department of Agriculture
Agency.
Appeal No. 01973651
Agency No.
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) pursuant to a provision in a settlement agreement
entered into with the agency dated March 5, 1997. The appeal is accepted
by the Commission in accepted pursuant to 64 Fed. Reg. 37644, 37659
(1999) to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether appellant is entitled to an award
of attorney's fees beyond the two hours provided for in the March 5,
1997, settlement agreement.
BACKGROUND
In December 1996, appellant and six other employees (the complainants)
in the agency's Atlanta District Office initiated EEO counseling for
the purpose of filing a class complaint alleging across-the-board
race (African American) discrimination. After the complainants
agreed to participate in alternative dispute resolution (ADR), the
agency assigned the case to an EEO Counselor who had experience as a
mediator. The complainants thereafter retained counsel (the Attorney),
who was present during several meetings held between January and March
1997. These meetings culminated in a settlement agreement (SA) dated
March 5, 1997, which provided a number of benefits to the complainants,
including promotions, the creation of Individual Development Plans,
and the creation of an incentive awards advisory group,
The record reveals that, during the negotiations, the parties were unable
to reach an agreement on the question of attorney's fees. Although the
Attorney requested $4,532.30 for 23 hours of work, the agency's position
was that, it was barred from paying fees insofar as a formal complaint
had never been filed. The agency did agree, however, to compensate the
Attorney for the two hours
he spent deciding whether to represent the complainants. Regarding the
fees in dispute, the SA contains the following provision:
[T]he parties agree to waive the right to a USDA final decision on the
amount of attorney['s] fees and cost[s] to be awarded and abide by a
decision of the Office of Federal Operations (OFO), Equal Employment
Opportunity Commission (EEOC) on the entitlement to fees during the
pre-complaint mediation component of the process.
ANALYSIS AND FINDINGS
Complainants and agencies are encouraged to make reasonable efforts to
voluntarily settle complaints of discrimination as early as possible
in the administrative process. For example, parties are encouraged to
engage in Alternative Dispute Resolution. See Executive Order No. 12988,
61 Fed. Reg. 4729 (1996). We note that the parties settled the case
prior to the formal complaint being filed and that the agreement
provided significant benefits to the complainants. Consistent
with 29 C.F.R. �1614.501, the parties can agree that the agency
will pay reasonable attorneys fees for precomplaint process
representation. Accordingly, the matter is remanded to the agency. The
parties are encouraged to reach an agreement regarding the payment of
attorney's fees.
CONCLUSION
It is the decision of the Commission to REMAND the case back to the
agency in order that the parties may negotiate an agreement concerning
reasonable attorney's fees.
ORDER
The parties are directed to negotiate in good faith the issue of
reasonable attorney's fees. Within sixty days of the date this decision
becomes final, the agency shall submit a report of compliance, as provided
below, which shall include the attempts the parties have made to resolve
the question of attorney's fees.
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 [PAGE 3] 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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 27, 2000
_________________
Date