01a40530
08-02-2005
Michael Burns, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Michael Burns v. Department of Commerce
01A40530
August 2, 2005
.
Michael Burns,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A40530
Agency Nos. 01-63-00363 & 002-63-00094
DECISION
Pursuant to 29 C.F.R. Sec. 1614.405, the Commission accepts complainant's
appeal from the agency's final decision in the above-entitled matter.
Believing that he was a victim of discrimination, complainant filed an
EEO complaint alleging that the agency discriminated against him based
on disability, in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. Sec. 791 et seq.,
and on the basis of age, in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Sec. 621 et seq. ,
when he was involuntarily transferred from the agency's Seattle Regional
Office to its Chicago Regional Office.
The complaint was resolved by a settlement agreement between complainant
and the agency. The settlement agreement provided, in pertinent part,
as follows:
(1) Complainant agrees to submit a written request for a voluntary
change to lower grade, and accept the position of Special Assistant,
GS-13/10. The request will include a statement of complainant's desire
to change permanently his duty station from the Chicago Regional Office
to the Seattle Regional Office, Field Division, Bureau of the Census.
(2) The agency agrees to accept from complainant his written request for
a voluntary change to lower grade to the GS-13/10 level, and reassign
and permanently change the duty station of complainant from the Chicago
Regional Office to the Seattle Regional Office, Field Division, Bureau of
the Census, in the position of Special Assistant, GS-13/10. Complainant
will report to the Associate Director for Field Operations, and may
subsequently report to the Field Division Chief or to the Regional
Director, Seattle. The Bureau of the Census will provide complainant with
the Form-CD316, Classification and Performance Record and Master Record
(MR) job description for the Special Assistant position. ... <1>
(emphasis added)
A dispute arose over implementation of the settlement agreement.
The agency, instead of offering complainant the position of �Special
Assistant� as was specified in the settlement agreement, proposed to
place complainant in a �Program Analyst� position. This was unacceptable
to complainant because, according to him, the Program Analyst position
did not have managerial and supervisory duties as did the Special
Assistant position.<2> When the parties reached an impasse over the
issue, complainant filed a claim of breach. The agency issued a FAD
denying complainant's breach claim. The agency took the position that
by offering complainant a Program Analyst position it had substantially
complied with the agreement because the duties of that position are
the same as those of the Special Assistant position. From that FAD,
complainant took an appeal to the Commission.
In Burns v. Departments of Commerce, EEOC Appeal No. 01A30172 (April 1,
2003) we found for complainant holding:
Review of the position description, performance plan, and description of
duties provided to complainant reflects that each document is devoid of
any indication that complainant is to encumber the position of a Special
Assistant. Moreover, the SF-52 issued to implement the reassignment is
equally devoid of this designation. In fact, we find no evidence in the
record to show that complainant was reassigned to a Special Assistant
position. Therefore, absent this evidence, we find that the agency failed
to demonstrate that it complied with the above referenced provisions of
the settlement agreement.
As relief, we directed that the agency comply with the agreement rather
than, as complainant had requested, that the complaint be reinstated.
Complainant filed a request for reconsideration on the issue of relief.
The request was denied. See, Burns v. Departments of Commerce, EEOC
Petition No. 05A30773 (July 18, 2003).
Thereafter, complainant submitted to the agency a petition for attorney's
fees in the amount of $6,183.50 in connection with the successful appeal.
The agency issued a FAD, denying the petition in its entirety primarily
on the grounds that complainant, having achieved very little on appeal,
was not a prevailing party.
Prevailing Party
The agency contends that, because the only relief he received from his
appeal to the Commission was an order that his �personnel paperwork
be amended� to show his assignment to a Special Assistant position, his
victory was de minimis and therefore insufficient to support an award of
attorney's fees. The agency's position is not well taken. Securing a
change in one's job title is not so trivial as to be regarded as de
minimis. See, Van Wersch v. Department of Health and Human Services, EEOC
Request No. 05980219 (November 20, 1998)(allegation of discriminatory
denial of change in job title sufficient to state a claim.)
In addition, complainant asserts that assignment to a Special Assistant
position will carry with it managerial and supervisory duties not
associated with the Program Analyst position. The agency does not
dispute this. A change of duties of this nature is not to be regarded
as insignificant. See Morman v. Department of the Air Force, EEOC Appeal
No. 01964629 (March 17, 1997) (allegation of denial of opportunity to
perform training duties alleges sufficient harm to terms and conditions
of employment to state a claim).
Finally on this point, the agency contends that because complainant
did not persuade the Commission to reinstate his complainant, he is
not a prevailing party and not entitled to an award of attorney's fees.
The Commission has held otherwise. As we stated in Parks v. Department
of the Army, EEOC Request No. 05970925 (August 2, 2000):
Although complainant did not receive the specific relief he sought, i.e.,
reinstatement of his complaint, by his actions herein, he has obtained
further redress from the agency.[citation omitted]. For this reason,
he is entitled to an award of reasonable attorney's fees for the costs
incurred in enforcing the [settlement agreement].
Prenotification Legal Services
Having placed primary reliance on its �de minimis� argument, the agency
does not dispute the hourly rate charged by complainant's counsel nor
does it contend that any of the hours claim were not reasonably expended.
However, the agency does object to an award of fees for any attorney time
expended before the agency was notified that complainant was represented
by counsel. The regulation at 29 C.F.R. Sec. 1614.501(e)(2) provides that
attorney's fees shall be paid for services provided by an attorney after
the filing of a written complaint, provided that the attorney provides
�reasonable notice of representation to the agency, administrative judge
or Commission� except that fees are allowable for a reasonable period
prior to the notification of representation for any services performed
in reaching a determination to represent a complainant. (emphasis added)
The record shows that the Commission received notification of counsel's
representation of complainant on October 8, 2002, when it received
the notice of appeal in complaint's first appeal. The legal time
expended prior to that date will not be reimbursed, except for time
spent determining whether to represent complainant for which we will
allow 2.0 hours. This results in a reduction of 1.45 hours charged at
the rate of $375 or a total of $543.75.
Conclusion
Based on the foregoing, the agency's final decision will be modified to
provide that complainant will be awarded $5,639.75 for attorney's fees
based on the amount claimed ($6,183.50) minus the amount disallowed
($543.75).<3>
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall the agency shall pay complainant's attorney fees and
costs in the amount of
$$5,639.75.
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.
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. Sec. 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. Secs. 1614.407, 1614.408, and 29 C.F.R. Sec. 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. Secs. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 1614.604(c).
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29
C.F.R. Sec. 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. Sec. 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. Sec. 1614.501.
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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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 2, 2005
__________________
Date
1These provisions have been re-numbered herein
for ease of reference.
2Complainant raised other claims of breach and misfeasance by the agency
which are not relevant to the matter before us and will not be detailed
here.
3Complainant also sought an award of attorney's fees for time expended
preparing the instant appeal. Such an award would premature. Not until
the present appeal is final will complainant be entitled to a further
award of attorneys fees. A petition for those fees should be submitted
to the agency as indicated below.