01992365
03-22-2000
Reginald Quick, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Reginald Quick, )
Complainant, )
) Appeal No. 01992365
v. ) Agency No. 971558
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his request for attorney's fees in connection with a
complaint of unlawful employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et
seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405). The issue on appeal
is whether the agency properly calculated the amount of attorney's fees
and costs to which complainant is entitled.
BACKGROUND
The record reveals that the agency issued a FAD finding that complainant
had been discriminated against when he was terminated from his temporary
file clerk position on May 27, 1997, and when he was denied reasonable
accommodation for his disability.<2> The FAD included instructions
for submitting a fee petition to claim attorney's fees and costs.
Complainant's attorney (CA) submitted a fee petition dated December 4,
1998, and received by the agency on December 11, 1998, requesting
$3,106.97 in fees and costs.
The agency issued a FAD awarding $250.00. It concluded that while CA
was retained on November 4, 1998, the agency was not notified of this
representation until December 10, 1998, when it received a written
notification, postmarked December 3, 1998. Citing Office of Federal
Operation's decisions and EEOC Regulation 37,644, 37,660 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.501(e)(1)(iv)),
the agency concluded that it was not required to pay fees generated before
the agency had reasonable notice of representation. While acknowledging
that written submissions to the agency signed by the representative
constitute notice, the agency averred that it received no such submissions
until December 10, 1998. Because CA's fee petition indicated that all
services were provided to complainant prior to December 10, 1998, the
agency determined that payment for these services would not be made,
with the exception of two hours to review the case and decide whether to
take it. The fee petition indicated that CA's hourly rate was $125.00
and the agency thus awarded $250.00 in fees and costs.
On appeal, complainant makes no responses to the agency's arguments.
The agency requests that its FAD be affirmed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.501(e)(1)(iv) requires that attorney's
fees be paid for services performed by an attorney after the filing of a
written complaint, provided that the attorney provides reasonable notice
of representation to the agency. An exception within this regulation
allows fees to be paid for a reasonable period of time prior to the
notification of representation for any services performed in reaching a
determination to represent the complainant. Moreover, the regulation
also notes that written submissions to the agency that are signed by
the representative constitute notice of representation.
After a thorough review of the record, we find that CA failed to notify
the agency of her representation until December 10, 1998, when the
agency received the written notification mailed on December 3, 1998. The
record contains no written submissions to the agency signed by CA dated
prior to December 10, 1998, and CA does not allege on appeal that such
submissions exist. While the fee petition she submitted includes charges
for a telephone call made to an agency official on December 3, 1998,
CA does not argue that these calls provided reasonable notification of
her representation to the agency. Moreover, we are unable to find any
precedent holding that a telephone call from the attorney to the agency
constitutes reasonable notification of representation. In fact, in the
past the Office of Federal Operations has found that such contact does
not constitute notice of representation. See Atienza v. Department of
the Navy, EEOC Appeal No. 01872727 (May 24, 1988).
Because the fee petition indicates that no services were performed after
CA provided the agency with notification of her representation, the
agency was correct in concluding that attorney's fees need not be paid,
with the exception of services rendered by CA in determining whether
to represent complainant. The Commission has found that an attorney
may reasonably expend up to two hours to make a determination regarding
whether to represent a complainant. See Vincent v. Department of the Army,
EEOC Request No. 05941012 (February 27, 1996). As CA states in her fee
petition that her hourly rate is $125.00, the agency was correct in
awarding $250.00 in attorney's fees.
Accordingly, the agency's decision to award complainant $250.00 in
attorney's fees was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
3/22/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 This FAD was issued after an EEOC Administrative Judge (AJ) issued
a recommended finding of discrimination. The agency agreed with the
AJ's finding of discrimination, but believed that not all the �pertinent
principles of law� were applied in the RD, and therefore did not adopt
it in full.