01A14952
07-10-2003
Linda O. Strange, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Linda O. Strange v. United States Postal Service
01A14952
July 10, 2003
.
Linda O. Strange,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 01A14952
Agency No. 4D280106394
Hearing No. 140-97-8082X
DECISION
Complainant timely initiated an appeal from the agency's final order
denying her petition for attorney's fees because it was allegedly untimely
submitted. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission reverses the agency's final
order.
The record establishes that following a hearing before an EEOC
Administrative Judge (AJ), the AJ determined, in a decision issued on
October 13, 1998, that the agency discriminated against complainant
under Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. As a result of this finding,
the AJ ordered the agency to, among other things, �[r]estore to the
complainant any sick leave that she was forced to use as a result of
the discrimination[,]� and to pay attorney's fees. AJ Decision at 9.
The agency issued a final agency decision (FAD1) on December 14, 1998,
adopting the AJ's finding of discrimination. However, the agency
rejected the portion of the AJ's decision requiring that complainant's
sick leave be restored. The agency further found that in regard to
attorney's fees �the responsible District Manager for the agency's
Mid-Carolinas District Office is directed to take the necessary action
to effect relief.� FAD1 at 2. Complainant appealed the portion of
FAD1 that rejected the restoration of her sick leave to the Commission.
The Commission subsequently issued a decision in Strange v. United States
Postal Service, EEOC Appeal No. 01992228, (March 20 2001), finding that
the agency erred in rejecting the portion of the recommended relief.
Complainant alleges that she received the Commission's decision in EEOC
Appeal No. 01992228 on March 28, 2001. When no request to reconsider
was filed, the Commission's decision in EEOC Appeal No. 01992228 became
final on April 27, 2001. In a May 9, 2001 letter to complainant's
attorney, the agency requested, among other things, evidence pertaining
to attorney's fees. Complainant faxed her petition for attorney's fees
to the agency on May 22, 2001.
Ultimately, in a final agency decision (FAD2) issued on July 20, 2001,
the agency dismissed complainant's petition for lack of timeliness.
Specifically, the agency stated that complainant was clearly notified
that the agency was implementing the portion of the AJ's decision on
attorney's fees, and therefore found that complainant's submitted her
petition a delinquent 2 years and 5 months after the issuance of FAD1.
Further the agency noted that even assuming that the tolling period for
the submission of her fee petition began after the appellate decision
was issued, the agency found that the petition was still filed outside
the required 30 days from when the decision was received by complainant
pursuant to 29 C.F.R. � 1614.501(e)(2)(i). The agency did not argue that,
should the Commission find the petition to be timely, the fees requested
be reduced. Complainant's appeal of FAD2 is now before us.
The Commission may award complainant reasonable attorney's fees and
other costs incurred in the processing of a complainant regarding
allegations of discrimination in violation of the Rehabilitation Act.
29 C.F.R. � 1614.501(e)(1). A finding of discrimination raises a
presumption of entitlement to an award of attorney's fees. 29 C.F.R. �
1614.501(e)(1)(i). Generally our regulations provide that complainant's
attorney shall submit a verified statement of attorney's fees and
other costs, as appropriate, to the agency within 30 days of receipt of
the decision. 29 C.F.R. � 1614.501(e)(2)(i). However, we note that
time limits are subject to waiver, estoppel, and equitable tolling.
29 C.F.R. � 1614.604(c). In this instance, we find that the agency
erred by dismissing complainant's petition for attorney's fees for lack
of timeliness. In so finding, we note that according to the evidence of
record: (1) FAD1 suggested that the agency would take affirmative action
in regard to attorney's fees; (2) there was no final decision from the
Commission in EEOC Appeal No. 01992228 until April 27, 2001; and (3)
the agency requested evidence of complainant's attorney's fees in a
letter dated May 9, 2001. Therefore, we reject the agency's argument
that the petition for attorney's fees filed on May 22, 2001, was untimely.
Attorney's fees
The agency is required to award attorney's fees for the successful
processing of an EEO complaint in accordance with existing case law
and regulatory standards. Bernard v. Department of Veterans Affairs,
EEOC Appeal No. 01966861 (July 17, 1998). An application for attorney's
fees must include a verified statement of attorney's fees, accompanied
by an affidavit executed by the attorney of record itemizing the
attorney's charges for legal services. EEOC Management Directive for
29 C.F.R. Part 1614, 11-9 (November 9, 1999). Since the agency did
not contest the requested award, we find that based on the evidence of
record, complainant's attorney supplied the appropriate documentation to
support his reasonable request and complainant is entitled to an award
of $12,335.00 in attorney's fees. Accordingly, the agency's decision
on attorney's fees is reversed and the agency is directed to take action
consistent with the Order below. Complainant's request for an additional
$1,015.00 for efforts in preparation for this instant appeal should be
submitted to the agency pursuant to the Order entitled �Attorney's Fees�
as it appears below.
ORDER
Within 30 days of the date this decision becomes final, the agency shall
pay complainant $12,335.00 in attorney's fees and costs. The agency shall
send evidence of payment to the Compliance Officer as referenced herein.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
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 (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
July 10, 2003
__________________
Date