05990623
07-14-2000
Higinio Elizondo, Jr., Complainant, Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Higinio Elizondo, Jr. v. Department of Housing and Urban Development
05990623
July 14, 2000
Higinio Elizondo, Jr., )
Complainant, ) Request No. 05990623
) Appeal No. 01980747
) Agency No. FW-95-37
) Hearing No. 310-97-5455X
Andrew M. Cuomo, )
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
____________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Higinio
Elizondo, Jr., v. Andrew M. Cuomo, Secretary, Department of Housing
and Urban Development, EEOC Appeal No. 01980747 (March 18, 1999).<1>
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting
party demonstrates 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. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).
For the reasons set forth herein, it is the decision of the Commission to
deny the request but to reconsider the prior decision on its own motion.
ISSUE PRESENTED
Whether the rights provided in the prior decision should be amended
to allow the complainant an opportunity to establish an entitlement to
attorney's fees.
BACKGROUND
The complainant filed a formal complaint in 1995 in which he alleged
that his non-selection for the position of Supervisory EEO Specialist,
GS-14 (the Position), was discriminatory. Both an administrative
judge (AJ) and the agency found discrimination, and the only issue on
appeal was whether the complainant had received the appropriate remedy.
The complainant made several arguments on appeal, the primary ones being
that he should have been placed into the Position at the GM-15 level and
that the promotion should not have been limited to the period between
when he was non-selected and his retirement in December 1995. Finally,
the complainant argued that he was entitled to an award of attorney's
fees as well as interest on his back pay award.
The prior decision found that, because the complainant was at the GS-13
level at the time of his non-selection, it was appropriate to place him
into the Position at the GS-14 level. Regarding the duration of the
promotion, the decision found that, absent a showing that the complainant
was constructively discharged, the agency was not required to place him
into the Position beyond the date he voluntarily retired. Finally,
although the decision found that the complainant was entitled to interest
on his back pay award, it also found he was not entitled to an award of
attorney's fees insofar as there was no evidence that he had ever been
represented by an attorney.
In support of his request for reconsideration, the complainant reiterates
that he should have been placed into the Position at the GM-15 level
and that his placement into the Position should extend beyond the date
he retired. The complainant also reiterates that he is entitled to an
award of attorney's fees.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. � 1614.405(b) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
Having considered the complainant's request, the Commission finds no
basis for disturbing the prior decision's rulings regarding either the
grade level at which the complainant was placed into the Position or
the duration of that placement. Furthermore, the Commission finds the
complainant has not demonstrated that, based on the evidence that was in
the record at the time, it was erroneous for the decision not to award
attorney's fees. Accordingly, it is the decision of the Commission to
deny the complainant's request for reconsideration.
As noted, the complainant has submitted a letter from an attorney
to the agency dated July 8, 1998, stating that she was representing
him at that point. Not only does that letter postdate the finding
of discrimination, but we note that the attorney had no involvement
with the request for reconsideration. Therefore, it is not apparent
that this individual performed any work for which fees are available.
Nonetheless, the letter does support a finding that the complainant
had an attorney at some point during the processing of his complaint.
Therefore, the Commission shall exercise its authority and reconsider
the prior decision on its own motion for the limited purpose of providing
the complainant with the rights pertaining to the recovery of attorney's
fees.<2> 29 C.F.R. � 1614.405(b).
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission denies the
request but reconsiders the decision on its own motion. The decision
in EEOC Appeal No. 01980747 remains the Commission's final decision,
except as MODIFIED herein. The agency shall comply with the Order in
our prior decision, as restated below. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
ORDER
The agency is ORDERED to take the following remedial actions:
1. The agency shall retroactively promote the complainant into the
position of Supervisory EEO Specialist, GS-14, for the period from when
the first of the four vacancies in question was filled to December
31, 1995. In conjunction with this action, the agency shall pay the
complainant back pay and other benefits to which he would have been
entitled, including an adjustment to his retirement annuity.
2. The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due the complainant, pursuant to 29
C.F.R. � 1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. The complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 (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).
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:
__07-14-00____ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
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.
2These rights appear under the heading �ATTORNEY'S FEES (H1199)� in the
set of rights attached to this decision. They do not provide for an award
for attorney's fees, but, rather, afford the complainant an opportunity to
submit a fee petition to the agency to recover provable fees and costs.
As noted in the prior decision, the claim for such fees only pertains to
the complainant's Title VII claim insofar as a complainant has no legal
entitlement to attorney's fees under the ADEA. See Palmer v. General
Services Administration, 787 F.2d 300 (8th Cir. 1986).