0720110037
06-21-2012
Gregory Holley, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
Gregory Holley,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0720110037
Hearing No. 570-2009-00340X
Agency No. AAFES08047
DECISION
After a hearing was held in November 2009, an EEOC Administrative Judge (AJ) issued a decision dated May 11, 2011, finding that the Agency discriminated against Complainant, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., on the bases of race and in reprisal for prior EEO activity when it issued an Advance Notice of Termination and a rating of 89 on his Performance and Potential Appraisal. The AJ ordered the Agency to change Complainant's rating and expunge references to the former rating and the termination; to pay compensatory damages and reasonable attorney's fees; to provide training and to post a notice.
On June 27, 2011, the Agency agreed to implement the AJ's decision with the exception of the amount of the attorney's fee award. The Agency filed a timely appeal, and in its brief in support thereof, the Agency argues that the AJ abused her discretion because she failed to address the majority of the Agency's arguments in favor of reducing the attorney's fee award.
On July 21, 2011, this office sent the Agency a letter requesting that it submit the complaint file and informing it that the failure to do so could result in sanctions, including, inter alia,: (1) drawing an adverse inference that the requested information would have reflected unfavorably on the Agency; and (2) considering that the requested information establishes a portion of Complainant's case. To date, the Agency has not submitted the complaint file. As a consequence, we do not have a copy of the fee petition, a copy of the verified statement concerning Complainant's attorney's usual and customary rate or a copy of his resume attesting to his practice and experience, nor do we have a copy of the Agency's response to the fee petition that the AJ allegedly ignored. Consequently, the Commission is not able to adequately assess whether 48.9 hours from the original requested 189.4 hours should be "stricken" as the Agency argues, nor can we determine whether a further 50% across the board reduction in hours spent is appropriate.
In consideration of the fact that the Agency initiated this appeal and was provided notice of the consequences of failing to provide the complaint file without good cause, has not shown good cause, and puts into direct controversy the appropriateness of the number of hours claimed in the fee petition without submitting it for our review, we find it appropriate to draw an adverse inference against the Agency. This sanction is intended to deter the Agency from similar conduct in the future, as well as to equitably remedy Complainant.
CONCLUSION
The Commission AFFIRMS the Agency's final order implementing the relief ordered by the AJ and REVERSES its rejection of the AJ's award of attorney's fees. The Agency is directed to comply with the Order below.
ORDER
To the extent it has not already done so and within sixty (60) days of this decision becoming final, the Agency shall:
1. Expunge from all personnel and associated Agency records the Performance and Potential Appraisal for the rating period February 2007 to January 2008 and replace it with the same rating (105: Results 46, Competency 59) from the preceding year (February 2006 to January 2007);
2. Expunge from all personnel and associated Agency records any references to the Advanced Notice of Separation;
3. Pay Complainant $10,000.00 in compensatory damages;
4. Pay Complainant $55,920.00 in attorney's fees;
5. Require the responsible management officials to take eight hours of EEO training on Title VII with an emphasis on race discrimination and retaliation; and
6. Consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the Compliance Officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation of their departure date(s).
POSTING ORDER (G0610)
The Agency is ordered to post at its Dallas, Texas and Kaiserslautern, Germany copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 21, 2012
__________________
Date
2
0720110037
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013