0320150028
03-16-2017
Lindsey T.,1 Petitioner, v. James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lindsey T.,1
Petitioner,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Petition No. 0320150028
MSPB No. SF-0752-09-0864-A-1
DECISION
On January 22, 2015, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim that he is entitled to attorney's fees pursuant to Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the reasons that follow, we CONCUR with the ultimate determination of the MSPB that Petitioner has not established an entitlement to attorney's fees.
ISSUES PRESENTED
The issues presented are:
1. Whether the MSPB's Final Order correctly determined that its decision regarding an attorney fees award does not constitute a decision on an issue of substantive discrimination law?
2. Whether Petitioner established that he was a prevailing party with respect to his litigation before the MSPB and therefore entitled to an award of attorney's fees?
BACKGROUND
This case has an extensive procedural history with multiple decisions issued by the MSPB; consequently, we will only note those matters which we deem necessary to address the issues before us. Petitioner worked as a Distribution Process Worker at the Agency's Defense Distribution Depot in San Joaquin, California. He held that position for six years. Petitioner was suspended for 30 days based on one charge of insubordination due to his failure to provide requested medical documentation. Subsequently, he was removed based on the following charges: (1) insubordination for not providing requested medical documentation; (2) one hour of absence without leave (AWOL) on August 25, 2009; and (3) failure to request leave in accordance with established procedures. He filed an appeal alleging that the Agency discriminated against him on the basis of disability.
Petitioner appealed the 30-day suspension as well as the removal action, alleging discrimination based on disability.2 A hearing was held where the MSPB Administrative Judge (AJ) joined Petitioner's 30-day suspension and the removal for hearing purposes. The AJ issued a decision on April 19, 2010, that sustained the AWOL and failure to request leave charges, but did not sustain the insubordination charges. The AJ also found that Petitioner established his affirmative defense of disability discrimination in the removal action. The AJ reversed both the Agency's suspension and removal actions.
The Agency petitioned the full Board for review of the initial decision. The full Board granted the petition and issued a decision on August 25, 2011, which affirmed the AJ's findings of no discrimination with respect to the AWOL and failure to properly request leave charges. The Board vacated the AJ's findings with respect to the charges of insubordination because the AJ failed to make credibility determinations. Additionally, the Board remanded Petitioner's claim of disability discrimination, finding that the AJ should not have applied a mixed-motive analysis.
On remand, the AJ issued a new decision on January 20, 2012, sustaining both insubordination charges, and finding that Petitioner did not prove his disability discrimination claim in the removal action. Therefore, he affirmed both the 30-day suspension and the removal. Petitioner then filed a petition for review. The Board issued a decision on June 18, 2013, affirming the AJ's decision. The Board also upheld the AJ's determination that, although Petitioner was "regarded as" being disabled, he was not discriminated against based on disability when he was removed.3
The Board, citing our decision in Feder v. DOJ(FBI), EEOC Appeal No. 0720110014 (July 19, 2012), overruled its prior determination that a mixed-motive analysis did not apply to disability claims arising under the Americans with Disabilities Amendments Act (ADA-AA). Accordingly, the Board found that comments made by the deciding official in his decision letter concerning the removal action constituted direct evidence of a discriminatory motive based on disability,4 but that the Agency demonstrated by clear and convincing evidence that it would have removed Petitioner even absent any discriminatory motive. Petitioner did not file an appeal of the Board's June 18, 2013, decision with the Commission.
The Board remanded the issue of an appropriate remedy to the AJ. Petitioner filed a petition for attorney's fees on August 6, 2013, arguing that pursuant to 5 U.S.C. �7701(g)(2), he was the prevailing party because there was a finding of discrimination, and that fees in the amount of $57,818.00 were reasonable. The AJ issued a decision on December 13, 2013, denying the petition for fees. The AJ reasoned that the MSPB had declined to take the approach that Petitioner was a prevailing party when there is a finding of discrimination in a mixed-motive case. The AJ noted that Petitioner received no personal relief because there was clear and convincing evidence that the Agency would have taken the action regardless of its discriminatory motive.
Petitioner filed a petition for review with the full Board, and in a December 18, 2014 decision, the Board denied the petition, and affirmed the initial decision with modifications for the purposes of including a discussion of several Commission cases cited by Petitioner in his submissions. The Board maintained that Petitioner was asking it to defer to the EEOC's "apparent determination" that, "[i]n a mixed-motive case, an appellant is considered a prevailing party even if the agency proved by clear and convincing evidence that it would have taken the action against him regardless of the discriminatory motive, and even in the absence of any award of personal relief." The Board indicated that although it generally defers to the EEOC on issues of substantive discrimination law, determinations on an entitlement to an award of attorney fees should not be confused with the substantive matter of a case itself. The Board found that Petitioner was not the prevailing party, and was therefore not entitled to attorney fees as a matter of civil service law. The Board reiterated its position that Petitioner obtained only a finding that the deciding official's statements in the decision letter constituted direct evidence of disability discrimination;5 but that the Board ultimately determined that the Agency would still have removed him even absent its improper consideration of his medical condition. Since Petitioner received no actual relief and there was no material alteration of the legal relationship between the parties, the Board concluded that Petitioner was not the prevailing party.
Arguments on Petition for Review
In the instant petition, Petitioner argues that the Board erred when it failed to follow Title VII and the Commission's guidance on attorney's fees in mixed-motive cases in considering the underlying fee petition. Petitioner contends that the Commission precedent interpreting Title VII provides that attorney fees may be awarded in cases where discrimination is established, and the employer is able to establish mixed-motive. In such cases, Petitioner submits that the employee is the prevailing party.
ANALYSIS AND FINDINGS
EEOC regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
Jurisdiction
In Lopez v. Dept. of the Air Force, EEOC Petition No. 03930021 (Apr. 7, 1994)(the petitioners appealed an MSPB final order which found they were not prevailing parties after a determination that a mixed motive existed regarding their removals), the Commission noted:
EEOC Regulation 29 C.F.R. � 1614.501(e) and its predecessor regulation, 29 C.F.R. � 1613.271(a), empower the Commission to award attorney's fees in cases arising under Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The fee petition in this case is brought pursuant to the Rehabilitation Act, inasmuch as petitioners claimed that they were discriminated against on the basis of a physical disability. Accordingly, the Commission has jurisdiction to decide this matter.
We find no reason to depart from the rationale of Lopez in the present case where Petitioner has alleged discrimination based on a perceived disability and the MSPB has determined that disability discrimination played a role in the decision to remove Petitioner.
Prevailing Party Status
The Civil Rights Act of 1991 (CRA) abrogated the long-held belief that employers could escape liability for discrimination by providing a legitimate reason for the adverse employment action-even if complainant provided evidence of discrimination. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 93 (2003). Employers are liable for any discrimination that was a motivation for an adverse employment decision. Where mixed motives are present, Title VII provides the employer with a limited affirmative defense which restricts the remedies available to the complainant. To avoid an order requiring remedial placement and the payment of back pay and damages after the complainant proves discrimination, the employer must provide objective evidence showing that, with the illegitimate factor removed from the calculus, sufficient nondiscriminatory reasons would have induced it to take the same action. However, even if the employer can meet this burden, the complainant will "at a minimum, be eligible for declaratory relief, injunctive relief and attorney's fees." EEOC Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, EEOC Notice No. 915.002 (July 7, 1992), Part III Sec. A.
As stated in Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), "[I]n federal EEO law, there is a strong presumption that a complainant who prevails in whole or in part on a claim of discrimination is entitled to an award of attorney's fees and costs. More specifically, complainants who prevail on claims alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Rehabilitation Act of 1973, as amended, are presumptively entitled to an award of attorney's fees and costs . . . ." EEO MD-110, at Chap. 11 � VI A (Aug. 5, 2015).
As was noted above, the MSPB found that comments contained in the deciding official's October 20, 2009 letter constituted direct evidence of a discriminatory motive based on disability. We do not find it necessary to revisit this determination in our decision, because the issue in this matter is whether Petitioner can be considered a prevailing party. In Lopez, supra, the Commission noted that "[t]he Commission, like the Board, has long held that attorney's fees may only be awarded to 'prevailing parties.'" Lopez, EEOC Petition No. 03930021.
EEO MD-110 provides, in relevant part:
A "prevailing party," within the meaning of Section 706(k) of Title VII, 42 U.S.C. � 2000e-5(k), is a complainant who has succeeded on any significant issue that achieved some of the benefit the complainant sought in filing the complaint. Texas State Teachers Ass'n v. Garland I.S.D., 489 U.S. 782 (1989). The Commission has relied on a two-part test set forth in Miller v. Staats, 706 F.2d 336 (D.C. Cir. 1983), for determining whether a complainant is a prevailing party. Baldwin v. Dep't. of Health & Human Services, EEOC Request No. 05910016 (Apr. 12, 1991). To satisfy the first part of the test, the complainant must have substantially received the relief sought. Id. To satisfy the second part of the test, there must be a determination that the complaint was a catalyst motivating the agency to provide the relief. Id. (citing Miller, 706 F.2d at 341). A purely technical or de minimis success is insufficient to confer "prevailing party" status. Texas State Teachers Ass'n. at 792.
Id.6
We find that Petitioner cannot be considered a prevailing party in this matter. At best there was a only a "purely technical or de minimus success." Petitioner did not prove his claim of disability discrimination with regard to his removal nor did he receive actual relief on the merits of his claim which materially altered the legal relationship between him and the Agency by modifying the Agency's behavior in a way that directly benefited Petitioner. See Reddy v. Agency for International Development, EEOC Appeal No. 0720060022 (Aug. 31, 2007) (attorney's fees awarded where supervisor cited complainant's EEO contact as a basis for his determination that complainant's performance was poor.) In Reddy, the agency was ordered to administer EEO-related training, to consider disciplining the responsible management official, and to post a notice that a finding of discrimination was issued. The magnitude of the relief obtained is not dispositive; for example, the Commission has determined that an employee was a prevailing party in a situation where discrimination was found and only a posting notice was ordered. See McGinnis v. Dep't of Defense, EEOC Request No. 05920150 (July 15, 1992).
Petitioner appears to argue that once a determination was made that a mixed motive existed, he should automatically have been considered a prevailing party. We do not agree. An examination of the cases cited by Petitioner indicates that, unlike his situation, the employees, in addition to being awarded attorney's fees, also obtained other forms of relief, either from an Administrative Judge or the Commission on appeal, that materially altered the legal relationship between them and the Agency by modifying the Agency's behavior in a way that directly benefited the employee. For example, in Volz v. Department of Justice, the Administrative Judge, after finding that a mixed-motive existed, ordered, among other things, that the agency post a notice that discrimination was found, and required the responsible official to undergo training in the provisions of Title VII prohibiting retaliation. The Commission also directed the Agency to consider disciplining the responsible official. Volz, EEOC Appeal No. 07A10026 (Aug. 23, 2002). In Call v. Department of Transportation, after upholding an Administrative Judge's finding of a mixed motive, the Commission, among other things, ordered training for the selecting official, consideration of discipline and the posting of a notice that discrimination had been found. Call, EEOC Appeal No. 0720070017 (Oct. 25, 2007). In Bell v. Department of the Navy, the Commission found no basis to disturb the Administrative Judge's decision where, after finding that a mixed-motive based on race existed, he ordered the Agency to ensure that managers from the Naval Ordinance Safety and Security Activity received training regarding EEO duties and responsibilities in promotion actions. Bell, EEOC Appeal No. 0720080024 (Jun. 25, 2008). In each of these cases, the employees, in addition to being awarded attorney's fees, also obtained other forms of relief that materially altered the legal relationship between them and the Agency by modifying the Agency's behavior in a way that directly benefited the employee. Such is not the case here.
CONCLUSION
Accordingly, based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the ultimate determination of the MSPB that Petitioner is not a "prevailing party," and therefore has not established that he is entitled to attorney's fees in the instant matter.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_3/16/17_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 Petitioner did not allege that he was denied a reasonable accommodation.
3 Petitioner did not challenge the AJ's determination that his suspension was not discriminatory.
4 In the removal letter dated October 20, 2009, the deciding official states that he "consider[ed] the impact of [the Petitioner's] inability to fulfill the full range of [his] duties on the efficiency of this organization." He also stated that the Petitioner occupied a full time position and that his "inability to fulfill the full range of [his] duties has a detrimental impact on the ability of this organization to efficiently accomplish its mission," and it "also causes an unnecessary burden on [his] co-workers who must accomplish [his] duties in addition to their own while [he is] on light duty."
5 For the purposes of its analysis, the Board assumed without deciding that the finding that the deciding official's statements in the decision letter regarding the removal were "direct evidence of a discriminatory motive," constituted a "finding of discrimination" under 5 U.S.C. � 7701(g)(2).
6 The key is whether actual relief on the merits materially alters the legal relationship between the parties by modifying the agency's behavior in a way that directly benefits the complainant. Farrar v. Hobby, 506 U.S. 103 (1992); Bragg v. Dep't. of the Navy, EEOC Appeal No. 01945699 (Mar. 7, 1996).
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