07A10026
08-23-2002
James T. Volz, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
James T. Volz v. Department of Justice
07A10026
August 23, 2002
.
James T. Volz,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 07A10026
Agency No. F-96-8457
Hearing No. 100-97-7702X
DECISION
INTRODUCTION
Following its November 6, 2000 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether the agency properly rejected the
EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the bases of retaliation (prior EEO activity)<1>
and adopted the AJ's finding of no discrimination based on his age
(DOB 7/15/38).
BACKGROUND
Complainant, a Special Agent, GS-13, was employed by the agency and
assigned to the Oklahoma City Division (OCD). Complainant was reassigned
to work on the Federal Bureau of Investigation (FBI) task force (OKBOMB
task force) to work on the investigation of the bombing of the Alfred
P. Murrah Federal Building in Oklahoma City, Oklahoma, on April 19,
1995. Complainant's duties while on the OKBOMB task force included
serving as a team leader. Complainant's other auxiliary duties at the
FBI included being an EEO counselor, principal firearms instructor,
and SWAT team leader. Pursuant to 5 U.S.C. � 8335, FBI agents are
subject to mandatory retirement at the age of 56. Complainant was
initially subject to retirement on July 31, 1995. On May 31, 1995,
due to his assignment to the OKBOMB task force, the Director of the
FBI granted complainant a six month waiver. The record indicates
that the Director of the FBI has the authority to waive the mandatory
retirement for employees if their service is required by public interest.
A second waiver was initiated by complainant's Inspector in Charge (IC).
On January 2, 1996, the Director of the FBI granted complainant a second
waiver which extended his retirement date to July 31, 1996.
On May 27, 1996, complainant requested a third waiver. The following day,
the IC submitted a memorandum to the Director of the FBI recommending
that complainant's waiver request be denied. The memorandum noted the
complainant engaged in auxiliary duties such as EEO which at times were
�counterproductive.� On July 1, 1996, complainant submitted to the
Director of the FBI a memorandum refuting the IC's recommendation and
alleging discrimination and retaliation. On July 25, 1996, the Director
of the FBI denied complainant's request for a waiver beyond July 31, 1996.
Believing he was a victim of discrimination, complainant filed a formal
EEO complaint with the agency on September 4, 1996, alleging that the
agency's denial of the additional waiver from mandatory retirement was
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.
Prior to the hearing, on August 8, 1997, the agency made a Motion
for Findings and Conclusions without a Hearing. Complainant filed
his opposition on October 9, 1997, and both parties filed responsive
pleadings. Based upon a review of the motion and opposition to the
motion, the AJ indicated her intent to grant the agency's motion solely
with regard to the basis of age. Therefore, no evidence was taken at
the hearing on the basis of age.
Following a hearing, the AJ found that complainant's claim of
discrimination based upon reprisal required a mixed motive analysis.
The record indicates that complainant filed a prior EEO complaint
against his previous Supervisor when he was allegedly discriminated
against when he was denied night differential pay in September 1995.
That complaint was based upon reprisal for complainant's prompting
an Office of Professional Responsibility (OPR) investigation of his
Supervisor for allegedly attempting to tamper with witness testimony
in a race discrimination case before an EEOC Administrative Judge.
Complainant had been the EEO Counselor in the race discrimination case
and had been an approved witness at the hearing. Further, complainant
testified to two incidents that the AJ determined to constitute direct
evidence of reprisal for protected EEO activity.
In the first incident, complainant testified about a short meeting which
was held between the IC, the Inspector in Place (IP), an Acting Special
Agent in Charge (ASAC), and himself after December 5, 1995. At the
meeting, the IC showed complainant a retirement form with his name typed
on it and told him that if he did not back off or stop complaining against
his previous Supervisor, the IC would submit the form. Complainant also
averred that the IP told him that a substantial monetary award might
be available for work on the OKBOMB task force and complainant should
not �rock the boat.� The AJ noted that complainant's EEO counselor
testified that complainant had told him about the threat of retirement
if he did not back off from his EEO complaint. The AJ found that the
IC, IP, and ASAC stated in their affidavits that complainant was shown
retirement papers in a meeting in October 1995, in which complainant was
told to focus on the OKBOMB investigation. The IC also testified that
the meeting in October was to address complainant's attitude toward the
ASAC and his previous Supervisor. The IP testified at the hearing that
there were two meetings during which complainant was told to focus on
OKBOMB but did not address the content of the meeting. Complainant did
not deny that there was a meeting in October but he states that he was
not shown retirement papers at that time. The IC, IP, and ASAC did not
deny that there was a meeting in December 1995.
The AJ also found a second incident and determined that it constituted
direct evidence of reprisal. According to complainant, on or about
April 9, 1996, the IC showed complainant a document related to his EEO
complaint against his previous Supervisor and said �I thought we had an
understanding,� or �I thought we had a deal.� In his affidavit, the IC
denied making such a statement however he acknowledged that he received
a notice that complainant had filed a formal complaint requiring him
to retain records. The IC also averred that he told complainant about
receiving the notice. The IC did not testify as to this conversation.
Therefore, as to the April 1996 meeting, the AJ determined that
complainant's testimony was credible and that the meeting took place as
he described it, noting that the IC's testimony lacked credibility due to
the contradictions between his testimony and other evidence in the record.
The AJ further found that the agency failed to rebut complainant's
contentions regarding the December and April meetings. Accordingly,
the AJ determined that complainant had established direct evidence of
discrimination.
The AJ also determined that the agency articulated a lawful,
nondiscriminatory reason for its decision. The agency showed that
complainant's services were no longer required and, therefore, that he did
not meet the statutory criterion for a waiver, i.e. that he was necessary
to a continuing investigation or that he had unique skills. The record
indicates that the IC's recommendation denying complainant's request for a
waiver was reviewed by three levels of officials (Reviewing Officials).
The AJ found that although the IC's recommendation was suspect, she
concluded that the Reviewing Officials did not have the same animus.
Aside from the IC's recommendation, the AJ concluded that the Reviewing
Officials would have denied complainant's continued waiver from mandatory
retirement even absent the IC's discriminatory motive. The AJ then found
that complainant failed to demonstrate that his continued waiver was in
the public interest.
As for relief, the AJ ordered that the agency post a notice that
discrimination was found, require the IC to undergo training in the
provisions of Title VII prohibiting retaliation, and award complainant
reasonable attorney's fees and costs. On September 25, 2000, the AJ
issued a decision on complainant's claim for attorney's fees and costs.
Based on the AJ's review of the record, she determined that complainant's
attorney is entitled to compensation for 125.6 hours at a rate of
$150 per hour and thirteen hours for travel at a rate of $75 per hour.
The total fee award was $19,815.00.
The agency's final order adopted the AJ's finding of no discrimination
as to the basis of age and rejected the AJ's finding of discrimination
as to the basis of reprisal. The agency simultaneously appealed
the AJ's decision to the Commission. On appeal, the agency argues
that the AJ erred in her decision. The agency noted that there is no
evidence of a similarly situated individual outside of complainant's
protected group who was treated differently nor was there evidence to
establish that retaliation was the motivating factor. Further, the
agency contends that the AJ improperly used the mixed-motive analysis.
In particular, the agency claims that the IC was merely a recommending
official and other Reviewing Officials determined whether or not to grant
complainant's request for a waiver. Accordingly, the agency argues that
the AJ's conclusion that the agency retaliated against complainant is
not supported by the record.
As to the issue of the AJ's award of attorney's fees and costs, the agency
argues that complainant is not entitled to them based on the merit of
the case. Further, the agency reiterates its arguments raised before
the AJ spotlighting what it characterized as the attorney's misleading
billing practices. The agency also noted that the degree of complainant's
success was negligible so should be his award of fees and costs.
Complainant argues that the AJ correctly determined that the IC's
decision to not waive him was based on his prior protected EEO activity.
He, however, contends that the AJ incorrectly determined his award for
attorney's fees and costs. In particular, he noted that he is a member
of the Oklahoma State Bar and therefore, his hours should not have been
struck from the fee petition.
ANALYSIS AND FINDINGS
Findings on Discrimination
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. We also find the agency's argument
that the AJ improperly applied a �mixed motive� analysis unpersuasive.
In essence, the agency asserts that complainant did not establish that
reprisal was a �substantial factor� in the agency's decision on the
waiver issue. Upon review, we find that the substantial evidence of the
record supports the AJ's determination that complainant had established
through direct evidence that reprisal was a �substantial factor� in the
agency's decision. Accordingly, we conclude that the �mixed motive�
used by the AJ to analyze the case at hand was appropriate. We also
determine that the AJ's findings of fact are supported by substantial
evidence, and that the AJ correctly applied the appropriate regulations,
policies, and laws.
Attorney's Fees and Costs
The Commission may award complainant reasonable attorney fees and other
costs incurred in the processing of a complainant regarding allegations
of discrimination in violation of Title VII. 29 C.F.R. � 1614.501(e).
A finding of discrimination raises a presumption of entitlement to an
award of attorney's fees. Id. Attorney's fees shall be paid for services
performed by an attorney after the filing of a written complaint. Id.
Complainant, on appeal, argues that he is entitled to attorneys fees
and costs for his ours spent on his case which were struck by the AJ.
The Commission notes that an attorney who represents himself is not
entitled to an award of fees. Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-2. (November 9, 1999)
(citing Kay v. Ehrler, 499 U.S. 432 (1991)). Therefore, we find that
complainant is not entitled to fees for his services.
As to the amount determined by the AJ, an award of attorney's fees
is determined by calculating the lodestar, i.e., by multiplying a
reasonable hourly fee times a reasonable number of hours expended. Hensley
v. Eckerbart, 461 U.S. 424 (1983); 29 C.F.R. � 1614.501(e)(2)(ii)(B).
A reasonable hourly fee is the prevailing market rate in the relevant
community. Blum v. Stenson, 465 U.S. 886 (1984). The agency reiterated
the challenges it made to the AJ regarding the attorney's fee petition.
Upon review, we find that the AJ properly addressed the agency's
arguments. Accordingly, we find that the AJ's award of $19,815.00 in
attorney's fees and costs to be appropriate.
CONCLUSION
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
AFFIRMS the agency's adoption of the AJ's finding of no age discrimination
and REVERSES the agency's final order rejecting the AJ's finding of
discrimination based upon reprisal. The Commission orders the agency
to take corrective action in accordance with this decision and the
ORDER below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Consider taking disciplinary action against the IC for the discriminatory
action perpetrated against complainant. The agency shall report
its decision. 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.
The agency shall provide remedial training for the IC to ensure that
discrimination does not recur, that no retaliatory acts are taken
against any employee who opposes unlawful discrimination, and that
persons reporting incidents of alleged discrimination are treated in
an appropriate manner.
Within thirty (30) calendar days of the date this decision is final,
the agency shall issue complainant attorney's fees and costs in the
amount of $19,815.00.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Oklahoma City Division facility
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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), 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 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 (S0900)
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 (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
August 23, 2002
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which
found that a violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The Department of Justice, Oklahoma City Division, supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The Department of Justice, Oklahoma City Division, has been ordered
to remedy an employee affected by the Commission's finding that he was
subjected to unlawful retaliation. As a remedy for the discrimination,
the Department of Justice, Oklahoma City Division, was ordered to
provide training to and consider discipline for the agency officials
found to have retaliated against the affected employee. The Department
of Justice, Oklahoma City Division, was also ordered to to ensure that
unlawful retaliation will not occur again. The Department of Justice,
Oklahoma City Division, will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The Department of Justice, Oklahoma City Division, will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal equal employment
opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 16141 The record indicates that complainant was an EEO
Counselor and had been called as a witness in an EEO complaint alleging
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. Complainant has also filed an
EEO complaint alleging that his previous Supervisor violated the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.