0520170351
09-07-2017
Truman B.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Truman B.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Request No. 0520170351
Appeal No. 0120140418
Hearing No. 570-2011-00668X
Agency No. ARMYER10OCT04858
DECISION ON REQUEST FOR RECONSIDERATION
On May 15, 2017, the Agency timely requested reconsideration with the Equal Employment Opportunity Commission (EEOC or Commission) of the decision in EEOC Appeal No. 0120140418 (April 10, 2017) (previous decision). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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).
In our previous decision, we found that Complainant did not show he was discriminated against when he was not selected for the position of Supervisory General Engineer, GS-13, at the Joint Base Myer-Henderson Hall, Directorate of Public Works, Operations and Maintenance Division in Fort Myer, Virginia, after he was told he was unofficially selected for the position; and when the Agency did not inform him the position was re-advertised.
While we found no discrimination in our previous decision, we sanctioned the Agency for not completing the investigation within 180 calendar days after Complainant filed his complaint and for its failure to comply with the order of an EEOC Administrative Judge (AJ), after Complainant withdrew his request for a hearing, to issue a final Agency decision within 60 days. As sanction, we ordered the Agency to: (1) post a notice at its Equal Employment Opportunity Compliance and Complaints Review office, located in Fort Belvoir, Virginia regarding its failure to comply with our regulatory timeframes and the AJ's Order; (2) provide training to its EEO personnel who failed to comply with our regulatory timeframes and the AJ's Order; (3) consider taking disciplinary action against these EEO personnel; and (4) pay Complainant's attorney's fees for filing the appeal in this case.
In its request for reconsideration, the Agency does not contest sanctions (1), (2) and (3). It argues, however, that in the absence of a finding of discrimination, it lacks legal authority to pay attorney fees. The Agency's arguments regarding sovereign immunity, and hence the potential violation of the Anti-Deficiency Act if it pays sanctions of attorney fees, were thoroughly and squarely addressed in Mirabal v. Department of the Army, EEOC Appeal No. 0720120007 (Nov. 9, 2012), req. to reconsider denied, EEOC Request No. 0520130236 (Mar. 27, 2014). The EEOC rejected these arguments, and ordered that the Agency pay the sanction of attorney fees. See also, Waller v. Department of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), req. to reconsider denied, EEOC Request No. 0520070687 (February 26, 2009).
We need not reiterate the EEOC's legal reasoning in Mirabal here. The EEOC has authority to award attorney fees and costs as a sanction. The Agency did not contest the propriety of the sanction, rather it only argued it did not have authority to pay the sanction.
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. 0120140418 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
Unless otherwise indicated, to the extent it has not already done so, the Agency is ordered to complete the following remedial actions within one hundred and twenty (120) days of the date of this decision:
1. The Agency shall post a notice in accordance with the paragraph below.
2. The Agency shall provide training to the EEO management officials regarding their responsibilities concerning case processing.
3. The Agency shall consider taking appropriate disciplinary action against the responsible EEO management officials. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the Compliance Officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation of their departure date(s).
4. As a sanction, the Agency shall provide Complainant attorney's fees for filing this appeal in accordance with the procedures set forth below in Paragraph H.2
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.
POSTING ORDER (G0914)3
The Agency is ordered to post at its Equal Employment Opportunity Compliance and Complaints Review Office, located in Fort Belvoir, Virginia, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
September 7, 2017
__________________
Date
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 This includes work done opposing the Agency's request for reconsideration.
3 The Agency need only comply with this order to the extent it has not already done so.
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