01A15179
06-20-2002
Roberta A. Marratto, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Roberta A. Marratto v. United States Postal Service (Eastern Area)
01A15179
June 20, 2002
.
Roberta A. Marratto,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 01A15179
Agency No. 4-C-150-0086-97
Hearing No. 170-98-8445x
DECISION
BACKGROUND
This case involves an equal employment opportunity (�EEO�) complaint filed
by Roberta A. Marratto (�complainant�) against her employer, the United
States Postal Service (Eastern Area) (�the agency�). In this complaint,
complainant alleged that the agency had discriminated against her on the
bases of her gender (female), age (date of birth of March 25, 1957),
alleged disability (�Ulner Nerve Decompression�), and in retaliation
(for filing a prior EEO complaint) when, from July 31, 1997 until
August 30, 1997, the agency placed her in non-duty/non-pay status.<1>
Complainant was thus alleging violations of Title VII of the Civil Rights
Act of 1964 (�Title VII�), as amended, 42 U.S.C. � 2000e et seq., the
Age Discrimination in Employment Act of 1967 (�the ADEA�), as amended,
29 U.S.C. � 621 et seq., and/or Section 501 of the Rehabilitation Act
of 1973 (�the Rehabilitation Act�), as amended, 29 U.S.C. � 791 et seq.<2>
Complainant did not file her formal EEO complaint in this matter until
September 23, 1997. Previously, however, on July 31, 1997, she had
filed a union grievance over the same agency action.<3> This grievance
was resolved via a �Step II� settlement in which the agency agreed to
return her to her position and provide appropriate back pay and benefits.
This settlement was reached on or around September 27, 1997 � four days
after complainant filed her formal EEO complaint.
The agency agreed to investigate complainant's complaint, and provided her
with a copy of its investigative report on or around January 28, 1998.
Complainant then requested a hearing before an administrative judge
(�the AJ�) of the U.S. Equal Employment Opportunity Commission (�EEOC�
or �this Commission�). The AJ notified the parties that the AJ intended
to issue a decision without a hearing, and the parties did not object.
In an AJ order dated July 21, 1999, the AJ ruled that:
The [a]gency [has] indicated that . . . [c]omplainant had received full
relief as agreed by . . . [c]omplainant. Counsel for . . . [c]omplainant
argued that [she] was restored to her job with back pay through the
grievance procedure and that [she] was entitled to attorney's fees as
a prevailing party since the underlying reason for the EEO complaint
had been settled in [her] favor. Pursuant to 29 C.F.R. � 1614.501(e),
the [a]gency should rule on . . . [c]omplainant's motion for attorney's
fees and issue a final decision on a fee award which is appealable to
the Commission. Accordingly, this matter is hereby remanded to the
[a]gency for the issuance of a final [a]gency decision.
Order of the AJ (Jul. 21, 1999), at 2.
The agency issued its final decision (�FAD�), as directed by the AJ, on
July 30, 2001. In this FAD, the agency concluded that the complaint at
issue was moot and should therefore be dismissed, and that complainant's
attorney's fee petition should be denied. The agency reasoned that
complainant was not a �prevailing party� with respect to her EEO complaint
because it was her grievance � and not the complaint itself � that was
settled, and that complainant's attorney was thus not a �catalyst in
her obtaining relief.� According to the agency:
On September 20, 1997, [c]omplainant's attorney noted he met with
[c]omplainant concerning the Step II grievance, yet he was not a part
of the process and he did not contact any management representatives
to provide documents, nor did he advise or counsel in facilitating a
settlement in the grievance procedure. Therefore, it is found he had
no input in facilitating the settlement. Based on the above and that
the primary focus of [c]omplainant's grievance was not her allegations
of discrimination and considering that the grievance process is not a
proceeding under the mandate of Title VII, [c]omplainant's representative
is not entitled to attorney fees. The mere fact that there is both a
grievance and an EEO complaint does not entitle . . . complainant to an
award of attorney fees as a prevailing party when it is clear the relief
was granted in response to the grievance.
Final Agency Decision (Jul. 30, 2001), at 3-4.
Complainant filed a timely notice challenging this FAD. We docketed
this notice as this appeal. In a statement submitted in support of her
appeal, complainant (through her attorney) argued that:
Pursuant to 29 C.F.R. � 1614.501(e), attorney's fees are permitted to
the prevailing party. In the instant matter, [c]omplainant was forced
to hire an attorney to defend herself against various charges of the
[a]gency through it[s] management and supervisory personnel. She took
advantage of the avenues available to her, i.e. the grievance process
and the EEOC process inasmuch as she felt she was being discriminated
against by her supervisor. Because of spurious actions of the [a]gency's
personnel, [c]omplainant was forced to spend her own money to defend
herself against the charges. But for the [a]gency's spurious actions
to place [c]omplainant in non-pay, non-duty status, she would not have
had to engage an attorney nor pursue the grievance process to right
an obvious wrong. There was no guarantee for her that the grievance
process would proceed quicker than the EEOC process or that it would be
resolved in her favor. Complainant is permitted to pursue both of these
actions . . . in any complaint that she feels grieved. In the instant
matter, the grievance process took a shorter period of time than the
EEOC process . . . . Complainant should not be punished for taking
advantage of her rights . . . in pursuing this action on two fronts.
It was ultimately found that the [a]gency did not have solid grounds
to discipline [c]omplainant in this matter and she was made whole with
regard to back pay, seniority, and benefits. She, however, was not made
whole with regard to the monies expended on attorney's fees to defend this
process through the EEO process . . . . Complainant was the successful
party in this action and therefore is entitled to the attorney's fees
as outlined in the fee petition [submitted to relevant agency personnel]
. . . .
Complainant's Appeal Brief (Oct. 17, 2001), at 2-3.
FINDINGS AND ANALYSIS
The AJ never definitively disposed of the EEO complaint at issue.
Instead, the AJ apparently assumed that the grievance settlement
rendered such a disposition unnecessary (without saying why or how),
and remanded the case to the agency for a determination on attorney's
fees. This was wrong. The AJ should have explicitly ascertained
the effect the grievance settlement had on the EEO complaint first
(e.g., should have decided the case on its merits, or ruled on whether
the grievance settlement had rendered the complaint moot and/or had
effected a settlement of the complaint itself<4>). The AJ's remand
to the agency for a �prevailing party� determination inquiry, without
a preceding procedural or substantive disposition of the complaint,
was therefore premature and inappropriate. Cf. 29 C.F.R. � 1614.109(i)
[emphasis added] (delineating an EEOC administrative judge's obligation
to �issue a decision on the complaint� and to �order appropriate remedies
and relief where discrimination is found�).
The agency, perhaps recognizing this deficiency in the AJ's order,
concluded in its FAD that the complaint had in fact been rendered moot by
the grievance settlement. We agree with this determination. Under our
case law, a complaint can only be considered moot if (1) it can be said
with assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); see
also Ramsey v. United States Postal Service, EEOC Appeal No. 01A14292
(Jan. 10, 2002). When such circumstances exist, no relief is available
and no need for a determination of the rights of the parties is presented.
In the past, we have ruled that if a grievance settlement completely
eliminated any possibility that discrimination would recur � and if
a complainant had received appropriate relief and had not requested
compensatory damages � any related EEO complaint should be declared moot.
See Spicer v. Department of the Treasury (Internal Revenue Service),
EEOC Request No. 05980472 (Sept. 3, 1999). Here, complainant has conceded
that she has been made whole by the settlement grievance in every respect
except for her legal expenses. Moreover, there is no evidence anywhere
in the record that she ever formally or informally requested compensatory
damages (either in her grievance, at the EEO counseling stage, in her
formal complaint, or on appeal).<5> Thus, we believe that her EEO
complaint was in fact mooted by the grievance settlement. The only
remaining question therefore, is whether complainant is nevertheless
entitled to attorney's fees because she did receive certain forms of
relief from the agency. We thus turn to that precise question now.
Cf. Troie v. United States Postal Service (Northeast Region), EEOC
Request No. 05930866 (Sept. 22, 1994) (stating that it would be error to
dismiss a complaint as moot without first addressing the complainant's
entitlement to attorney's fees).
�In 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, unless special circumstances render such an
award unjust.� Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO MD-110�) [emphasis omitted],
at 11-1. Complainant here did file a complaint alleging violations of
Title VII and the Rehabilitation Act,<6> and we must thus discern whether
she �prevailed� on these claims and is therefore entitled to attorney's
fees with respect to them.
It is clear from the record that the relief complainant received flowed
directly from her grievance efforts � not from filing the EEO complaint.
Moreover, complainant's attorney apparently did little or nothing to
effect the settlement of this grievance � and her grievance itself did not
raise allegations of unlawful employment discrimination in any event.<7>
Complainant does not dispute these facts.
Instead, she appears to be arguing on appeal merely that because she
was �forced� to hire an attorney to defend herself against �spurious�
agency actions, she should be awarded attorney's fees. She seems to
be saying that she should not be denied such fees simply because the
grievance was settled before the EEO complaint could be resolved,
and that because the grievance was settled in her favor the issue
of attorney's fees must be also. That is not how the fee shifting
provisions of Title VII and/or the Rehabilitation Act work, though.
Under the law, we cannot award attorney's fees just because an agency
agreed to settle a grievance which spawned an EEO complaint, as well.
To the contrary, for a grievant or EEO complainant to be eligible for fees
here, she has to show how she �prevailed� on a claim of discrimination,
specifically (and, of course, that her attorney helped her do so).
Cf. Gurwitz v. Department of Health and Human Services, EEOC Request
Nos. 05910421 et al. (Sept. 27, 1991). Since complainant has not made
this showing here, she cannot prevail on the fee issue either.<8> See,
e.g., Spriggs v. United States Postal Service, EEOC Request No. 05930939
(Dec. 10, 1993) (denying attorney's fees since �the parties entered [into
a] settlement agreement as the result of the grievance process� and not
the EEO process, since the complainant's union representative, not his
EEO attorney, signed the agreement on the complainant's behalf, since
the settlement made no mention of complainant's discrimination claims
or his participation in the EEO process, and since the complainant's
�EEO complaint [could thus] not be said to have been the catalyst that
motivated the agency to provide the requested relief�); and Carney
v. United States Postal Service, EEOC Appeal No. 01923229 (Sept. 24,
1992) (similarly holding that while a complainant claimed that �the
issues in her grievance[] were �inextricably linked' to the issues in
the EEO complaint, she did not show that the EEO action on which the
attorney worked motivated the agency to provide the back pay through the
grievance settlement or that it was a necessary factor to obtain the back
pay,� and that a complainant �did not present any argument or evidence
to show that any particular work done by her attorney contributed to
her receipt of the back pay settlement through the grievance process�).
CONCLUSION
Accordingly, because the complaint is moot and complainant is not a
�prevailing party� with respect to any claim of discrimination, the FAD
in question is hereby affirmed.<9>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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. � 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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 (S0900)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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.; and 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 complainant's 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 entitled
�Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 20, 2002
__________________
Date
1Complainant apparently was placed in such
status by her supervisor for the �potential loss of [agency] funds� (due
to complainant's alleged falsification of time recording, unauthorized
use of restricted information, and failure to give a fair day's work
for a fair day's pay).
2The Rehabilitation Act was amended in 1992 to apply the standards
in the Americans with Disabilities Act (�the ADA�) to complaints of
discrimination by federal employees or applicants for federal employment.
3According to the agency, this grievance raised violations of Article
16 of the relevant collective bargaining agreement only; it did not pose
violations of Article 2 (which covers discrimination and civil rights).
4Cf. Troie v. United States Postal Service (Northeast Region), EEOC
Request No. (Sept. 22, 1994), citing Garcia v. Department of the Army,
EEOC Request No. 05890078 (May 26, 1989) and Wise v. Department of
Veterans Affairs, EEOC Request No. 05920056 (Apr. 1, 1992) ( holding that
if an agency provides relief to resolve a union grievance, the provision
of such relief could constitute a constructive settlement of a related
EEO complaint, as well).
5We acknowledge that �a complainant need not use legal terms of art, such
as �compensatory damages,' but may merely use words or phrases to put
the agency on notice that a relevant pecuniary or non-pecuniary loss has
been incurred.� Henderson v. United States Postal Service, EEOC Request
No. 05980316 (Jul. 9, 1999). However, the closest complainant came to
requesting compensatory damages was asking generally that she be �made
whole� (without ever detailing any specific pecuniary or non-pecuniary
losses suffered). And, as already noted, she later claimed that she had,
in fact, been made whole. Compare Complainant's Formal EEO Complaint
(Sept. 23, 1997), at 1 (in which complainant requested �back pay [and]
benefits,� �credit[ed] sick leave [and] annual leave,� �seniority,�
�training for [the allegedly responsible agency official],� removal of
�all documents . . . from [her personnel] file,� �attorney fees [and]
costs,� and �to be made whole in all other respects�) with Complainant's
Appeal Brief (Oct. 17, 2001), at 2 (where she conceded that �she was
made whole with regard to back pay, seniority, and benefits,� but �was
not made whole with regard to the monies expended on attorney's fees to
defend this process through the EEO process�).
6Complainant's complaint also alleged violations under the ADEA, but
a party who prevails on a claim brought under this specific statute
may not be awarded attorney's fees via the administrative EEO process.
See EEO MD-110, at 11-1 (explaining that �[c]omplainants prevailing on
claims under the Age Discrimination in Employment Act of 1967, as amended,
and the Equal Pay Act of 1963, as amended, are not entitled to attorney's
fees at the administrative level�).
7See note 3, above.
8In her appeal brief, complainant contends that she �should not be
punished for taking advantage of her rights . . . in pursuing this
action on two fronts,� and that the agency �did not have solid grounds to
discipline [her] in this matter.� Complainant's Appeal Brief (Oct. 17,
2001), at 2. We are not punishing complainant for availing herself
of both the grievance and EEO processes, of course. We are simply
recognizing that a complainant-friendly outcome in the former forum
does not necessarily compel or convey �prevailing party� status in the
latter one.
9In affirming the FAD's ultimate outcome, we do not necessarily
endorse all of its reasoning. For example, the agency claimed that,
�considering that the grievance process is not a proceeding under
the mandate of [T]itle VII . . . [c]omplainant's representative is not
entitled to attorney fees.� Final Agency Decision (Jul. 30, 2001), at 3.
This proposition was squarely rejected in Gurwitz v. Department of Health
and Human Services, EEOC Request Nos. 05910421 et al. (Sept. 27, 1991)
(where we ruled that a complainant who prevails in a grievance which
raised allegations of prohibited discrimination could indeed be entitled
to attorney's fees, since such a grievance should in fact be considered
a Title VII proceeding).