0120082337
02-04-2010
Robert F. Woodley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Robert F. Woodley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120082337
Agency No. 4G870008904
DECISION
Complainant initiated an appeal from the agency's final order concerning
his entitlement to attorney's fees after a finding of discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the
Commission vacates the agency's final order.
BACKGROUND
Previously, complainant filed a complaint in which he alleged that the
agency discriminated against him on the bases of race (African-American),
color (black), and in reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964, when he was improperly
charged Leave Without Pay. An EEOC Administrative Judge (AJ) found
discrimination on the bases of race, color, and in reprisal for prior
protected activity.
The agency rejected the AJ's decision and filed an appeal with the
Commission. In Robert Woodley v. United States Postal Service, EEOC
Appeal No. 07A60074 (October 12, 2006), the Commission dismissed the
agency's appeal as untimely and ordered the agency to implement the
relief ordered by the AJ, as slightly modified. The Commission's Order
directed the agency to restore complainant's sick leave and annual leave;
pay interest to complainant in the amount of 10% per annum on $184.00 from
May 29, 2004, until he receives payment from the agency; pay non-pecuniary
damages of $500.00; pay pecuniary damages that complainant can document;
pay complainant costs he can document in connection with a $150.00
loan; conduct training; consider discipline for responsible management
officials; and to post a notice that discrimination had occurred.
On November 30, 2006, complainant filed a petition for enforcement,
alleging that the agency failed to comply with the Commissions Order
regarding leave, interest and non-pecuniary damages. Complainant later
amended and supplemented his petition to add that the agency failed to
pay pecuniary damages and loan costs as described in the Commission's
Order. On January 31, 2007, complainant further amended his petition
for enforcement a second time to state that in addition to the previous
relief the agency had not provided, the agency also failed to comply
with the Commission's Posting Order. The agency denied that it had
failed to comply with the Commission's Order in any respect.
In Robert Woodley v. United States Postal Service, EEOC Petition
No. 0420070014 (September 26, 2007), the Commission found that the
agency had failed to show how it calculated interest on the $184.00
and found it unclear whether the agency paid the pecuniary damages as
required by the Order in EEOC Appeal No. 07A60074. Specifically, the
Commission determined complainant was entitled to pecuniary damages for
the documented costs of approximately $200.00 in postage, $257.43 for
prescriptions, and $119.68 for mileage. The Commission found that the
agency had complied with the remaining provisions of the remedies ordered.
Therein, the Commission ordered the agency to supplement the record with
an explanation of how interest was calculated; calculate appropriate
pecuniary damages for those expenses that petitioner documented; and to
pay petitioner any outstanding sums due after subtraction of a lump sum
payment of $800.00 complainant acknowledged he had received from the
agency.
By letter dated October 17, 2007, complainant submitted to the agency his
documentation of pecuniary damages ($670.03), together with a petition
for attorney's fees (dated October 10, 2007) in the amount of $21,424.25,
plus costs of $2,341.09. Complainant states that over the next five
months, he continued to contact the agency and the Commission on various
occasions demanding the agency's payment of the sums owed pursuant to the
Commission's September 27, 2007 Order and for payment of his attorney's
fees and costs.1
On April 2, 2008, the agency issued a final decision regarding
complainant's petition for attorney's fees. The agency found that,
"[t]here is currently no petition for enforcement pending before the
Commission and there has been no finding that the [agency] was not in
substantial compliance with the OFO's order, therefore the [agency]
does not believe that you are entitled to any attorney's fees."
The agency's decision provided complainant with standard appeal rights
to the Commission.
Complainant filed the instant appeal on April 6, 2008, and his brief
in support of his appeal on April 20, 2008. On appeal, complainant
recounts his submission of documentary evidence and his petition for
attorney's fees. Complainant notes the agency's decision fails to address
the matter of complainant's pecuniary damages. Accompanying complainant's
brief are documents pertaining to his proof of pecuniary damages and his
attorney's statement of services rendered, together with costs incurred.
In his supplemental brief dated May 7, 2008, complainant acknowledges
his receipt of agency correspondence dated April 23, 2008. He states
that accompanying that correspondence was a payment of $450.08.2 The
payment indicated only that it was for "non-wage compensatory damages"
without any further explanation. Complainant argues that the agency
remains non-compliant with the Commission's orders for relief by failing
to provide an accounting of the $450.08 payment to complainant with
sufficient detail to permit complainant to determine whether the agency
has satisfied its obligations.
The agency failed to file a timely response to complainant's appeal.3
ANALYSIS AND FINDINGS
We first address complainant's contention that the agency failed to
pay pecuniary damages as ordered in the Commission's previous decision
issued on September 26, 2007, in EEOC Petition No. 0420070014. As noted
in that decision the Commission found complainant documented costs of
approximately $200.00 in postage, $257.43 for prescriptions, and $119.68
for mileage and was entitled to payment for these documented costs.
The decision also noted that the agency had issued a lump sum payment
of $800.00 to complainant. Since the agency failed to produce evidence
detailing what the $800.00 lump sum payment consisted of, the Commission
was unable to determine whether the appropriate pecuniary damages had been
paid. Thus, the Commission ordered the agency to calculate appropriate
pecuniary damages due for those expenses complainant has documented and
to pay complainant any outstanding sums due (after calculating pecuniary
damages due) after subtraction of the $800.00 lump sum payment.
While complainant acknowledges that he received a subsequent check in the
amount of $450.08 for "non-wage compensatory damages" from the agency in
April 2008, we find it is unclear what that amount represents. Thus,
the Commission is unable to determine whether the agency has complied
with our previous Order to calculate and pay complainant appropriate
pecuniary damages for those expenses documented by complainant.
Accordingly, the case is remanded for the agency to produce relevant
evidence showing its calculations for pecuniary damages specifically
detailing how much postage, prescription, mileage and other pecuniary
damages it determined were due complainant. Additionally, the agency
shall supplement the record with relevant evidence detailing what
the $450.08 payment represents. Moreover, the agency shall provide
relevant evidence detailing what the previous lump sum payment of
$800.00 represents. Thereafter, the agency shall pay complainant any
outstanding pecuniary damages.
Title VII authorizes the award of reasonable attorney's fees, including
for an attorney's processing of a compensatory damages claim. 29 C.F.R. �
1614.501(e). To establish entitlement to attorney's fees, complainant
must first show that he or she is a prevailing party. Buckhannon Bd. and
Care Home Inc. v. West Virginia Dept. of Health and Human Resources,
532 U.S. 598 (2001). A prevailing party for this purpose is one who
succeeds on any significant issue, and achieves some of the benefit
sought in bringing the action. Davis v. Department of Transportation,
EEOC Request No. 05970101 (February 4, 1999) (citing Hensley v. Eckerhart,
461 U.S. 427, 433 (1983)).
In the present case, it is unclear whether complainant is a prevailing
party since the Commission is currently unable to determine whether the
agency paid complainant all pecuniary damages due in accordance with our
prior decisions. We recognize that complainant did not prevail on all
the issues pursued in his original petition for enforcement. However,
we note that if complainant received payment for pecuniary damages from
the agency subsequent to our September 26, 2007 decision in Petition
No. 0420070014, he would be considered a prevailing party and thus,
entitled to reasonable attorney's fees. Specifically, we recognize
that if the agency's payment of $450.08 which complainant received in
April 2008 was a payment for pecuniary damages, he would be considered a
prevailing party. Moreover, we clarify that if complainant is considered
a prevailing party for purposes of the previously filed petition for
enforcement, and thus, entitled to attorney's fees, he would also be
entitled to attorney's fees for pursuit of the present appeal.
The agency's final decision regarding attorney's fees is therefore
VACATED. We REMAND the instant matter to the agency for compliance with
this decision and for the order specified below.
ORDER
The agency shall, within 30 days of the date this decision becomes final:
1. Supplement the record with an accounting of the sums due
complainant including an accounting of all pecuniary damages documented
by complainant. The agency shall supply a copy of the supplemented record
to complainant as well as to the Compliance Officer as described herein.
2. Pay petitioner any outstanding sums due after subtraction
of the lump sum payments ($800.00 and $450.08) made to complainant.
Specifically, the agency shall provide relevant evidence indicating what
the $800.00 and 450.08 payments constituted.
3. Submit documentation of compliance with this Order to the
Compliance Officer as referenced herein.
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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 4, 2010
__________________
Date
1 Complainant refers in subsequent pleadings to an appeal he filed
with the Commission dated December 14, 2007. Commission records to not
indicate that we docketed an appeal for complainant in December 2007.
2 The agency's check is dated February 6, 2008, but appears to have been
undelivered despite bearing complainant's correct address.
3 We observe the agency did seek leave to file an untimely brief in
response. Complainant opposed the agency's request. The Commission
found the agency's extension request was untimely and that request
was denied.
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0120082337
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082337