[Redacted], Larraine D., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Dec 6, 2022

Appeal No. 2022002934 (E.E.O.C. Dec. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Larraine D.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Request No. 2022004267 Appeal No. 2022002934 Agency No. DOI-USGS-20-0502 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2022002934 (July 11, 2022). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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 29 C.F.R. § 1614.405(c). At the time of events giving rise to the underlying complaint, Complainant was employed by the Agency as an Administrative Operations Assistant, GS-07, at the Agency's South Atlantic Water Science Center in Norcross, Georgia. Complainant filed an EEO complaint alleging discrimination on the bases of race (African- American), sex (female), and in reprisal for prior protected EEO activity under Title VII, when, inter alia: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 2022004267 1. On or around February 27, 2020, a verbal altercation arose, and the Administrative Officer (AO) did nothing to stop the altercation; 2. On June 5, 2020, during a Microsoft Teams meeting, the AO did not acknowledge that Complainant was called a “n***” and a “mother-f***” by a co-worker; and 3. On January 31, 2021, the Deputy Director (DD) stated that Complainant was “Super-hot and Curvy,” stated that she loved Complainant several times, and referenced Complainant's ongoing EEO complaint during that conversation.2 Following an investigation, the Agency concluded that Complainant proved that the Agency subjected her to discrimination and a hostile work environment as alleged regarding the three incidents described above. In a subsequent final decision, the Agency awarded Complainant a total of $51,246.60 in non-pecuniary compensatory damages; 316 hours of leave restoration; and $5,811.75 in attorney’s fees. In the decision, the Agency explained that the award of attorney’s fees represented an hourly rate of $350 instead of the $400 requested by Complainant’s representative. Similarly, the Agency reduced the total requested fee by 50%, finding that Complainant’s representative did not provide an adequate explanation of the reasonableness of the hours expended. Complainant appealed the Agency's compensatory damages and attorney’s fees decision to the Commission. In EEOC Appeal No. 2022002934, the Commission modified the Agency’s final decision. In the decision, we found that Complainant failed to establish that she was entitled to an increase in compensatory damages. With respect to attorney’s fees, we deferred to the Agency’s determination that an hourly rate of $350 was reasonable because Complainant failed to present sufficient evidence to substantiate that an hourly rate of $400 was reasonable for work performed by her attorney. However, we found that the Agency’s 50% across-the-board reduction in hours billed was not appropriate. In its request for reconsideration, the Agency contests the modification to the amount of attorney’s fees awarded to Complainant.3 In support, the Agency argues that the Commission failed to consider its appellate brief. However, we find that the Agency’s arguments mirrored the rationale presented in its Final Agency Decision, which were considered and addressed in the underlying appellate decision. Specifically, in its appellate brief, the Agency took issue with a rate of $400 per hour and the total requested attorney’s fees of $13,284.00 based on vagueness of the fee petition. In its request for reconsideration, the Agency reiterates those same arguments. 2 Complainant's complaint also included several other incidents of alleged harassment; however, the listed incidents are the ones in which the Agency found Complainant had been subjected to discrimination. 3 The Agency states that it concurs with the decision to affirm the award of compensatory damages and costs. 3 2022004267 As we explained in the previous decision, we disagree that the billing entries were insufficiently specific and/or excessive. Specifically, the decision noted that in reviewing the billed entries, we could discern what Complainant’s representative was working on at any given time and the entries all appeared reasonably necessary in order to support Complainant’s entitlement to compensatory damages. We therefore concluded that Complainant was entitled to a total of $11,623.50 in attorney’s fees. We find no error in the previous determination and further reject the Agency’s assertion that the level of detail Complainant’s representative provided in the instant matter is almost identical to the detail we deemed insufficient in Mathilda P. v. Department of the Army, EEOC Appeal No. 2019000142 (August 4, 2020). Here, in contrast to Mathilda P., where we found that the representative provided lump sum totals for travel and emails without sufficient explanation, Complainant’s representative provided a list of services itemized by date, number of hours, and a summary connecting the tasks to Complainant’s appeal. Likewise, we reject the Agency’s argument that the previous decision erroneously applied Micheline L. v. United States Postal Service, EEOC Appeal No. 0120151957 (August 8, 2017) and Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998), because the fee petition was not accompanied by a record of contemporaneous timekeeping or a reasonable accurate substantial reconstruction of time records. Again, while acknowledging that the fee petition was not excessively detailed, we did find that from the billed entries we could discern what Complainant’s representative was working on and the entries all appeared to be reasonably necessary to prove Complainant’s entitlement to compensatory damages. We emphasize that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VII.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2022002934 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER Within sixty (60) calendar days from the date this decision is issued, to the extent it has not already done so, the Agency shall provide the following remedial relief: 1. The Agency shall pay Complainant $51,246.40 in compensatory damages; 4 2022004267 2. The Agency shall restore 316 hours in leave for Complainant; 3. The Agency shall pay Complainant $11,623.50 in attorney’s fees; 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. ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he 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 receipt of this decision. 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 (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 5 2022004267 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 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 December 6, 2022 Date