05a50271
11-15-2005
Veronica Washington, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Veronica Washington v. Department of the Treasury
05A50271
11-15-05
.
Veronica Washington,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Request No. 05A50271
Appeal No. 07A40044
Agency Nos. TD-98-3189, TD-99-3014 and TD-99-3077
Hearing No. 100-A2-7333X
GRANT
Both Veronica Washington (complainant) and the Department of the Treasury
(agency) timely requested that the Commission reconsider aspects of
the decision in Veronica Washington v. Department of the Treasury, EEOC
Appeal No. 07A40044 (October 26, 2004). 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(b).
After reconsidering the previous decision and the entire record, the
Commission finds that complainant's request meets the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to grant
the request in part. Accordingly, the previous decision will be Modified
as indicated below. The agency's request is denied.
ISSUES PRESENTED
1. Whether the previous decision erred by not finding that the agency's
appeal was untimely.
2. Whether the previous decision erred by disallowing the EEOC
Administrative Judge's award of compensatory damages.
3. Whether the previous decision erred by upholding the EEOC
Administrative Judge's findings of no discrimination.
4. Whether the previous decision erred by upholding the EEOC
Administrative Judge's determination that complainant was not entitled to
attorney fees with regard to his determination that the agency committed
a per se violation of the Commission's regulations.
BACKGROUND
In three complaints, complainant maintained that the agency discriminated
against her because of her race (Black) and sex (female) and in reprisal
for having engaged in previous EEO activity with regard to multiple
performance evaluations of her work. Following a four-day hearing, an
EEOC Administrative Judge (AJ) found that: (1) the record supported the
conclusion that complainant's supervisor did not discriminate against
her as alleged; and (2) her supervisor's actions were motivated by her
performance rather than her race, sex, or in retaliation for engaging
in prior EEO activity. According to the AJ, the agency articulated
legitimate and nondiscriminatory reasons for complainant's poor ratings,
i.e., her poor performance. The agency cited such matters as her workload
management, her use of incorrect auditing procedures, the fact that she
misapplied tax law, her insufficient analyses, the matter in which she
disposed of records, and her failure to identify certain issues.
On his own motion, however, the AJ found that the agency committed a
per se violation of the Commission's regulations because of a memorandum
issued by complainant's supervisor that required complainant to notify
him if she had EEO or union business away from her duty station. The AJ
found that the use of this memorandum constituted an unlawful interference
with the EEO process because it �[h]as the effect of chilling ones right
to unfettered and anonymous EEO counselor contact.� As relief, the AJ
provided complainant $1,000.00 in non-pecuniary compensatory damages
and ordered two hours of EEO training for her supervisor. The AJ,
finding that complainant was not a prevailing party, refused to provide
attorney's fees and costs.
On appeal, complainant, among other things, sought a larger compensatory
damage award and attorney's fees, argued that the findings of no
discrimination were not supported by substantial evidence in the record,
and maintained that she was prejudiced by the AJ's decision to, after
four days of testimony, end the hearing. The agency, among other things,
argued that although it agreed with the majority of the AJ's decision,
it disagreed with the per se discrimination finding.
The previous decision affirmed the AJ's finding of a per se violation,
and upheld his findings of no discrimination. With regard to the AJ's
decisions concerning the relief that complainant was entitled to, the
previous decision found that the AJ erred in awarding compensatory damages
because the supervisor's actions were not intentional and therefore
compensatory damages were not warranted. The previous decision did not
alter the AJ's determination regarding attorney fees.
In its request to reconsider the prior decision, the agency reiterated the
same contentions that it raised on appeal, i.e., the AJ did not have the
jurisdiction to consider the per se violation because it was not raised
by complainant during counseling. The agency also maintained that the
ruling would have a substantial impact on its official time procedures.
Assuming that the Commission affirmed the per se violation, the agency
requested that it reconsider the portions of the decision that directed
it to consider discipline and that it post a notice that did not specify
that the violation which took place was an unintentional per se violation.
In complainant's request to reconsider, she argued that (1) the agency's
appeal was filed in an untimely manner; (2) the AJ erred in not finding
discrimination with regard to the evaluations that she received; (3)
the previous decision erred in finding that she was not entitled to
compensatory damages and in upholding the AJ's determination that she
was not entitled to attorney fees.
ANALYSIS
The Commission finds that complainant's request for reconsideration does
meet the regulatory criterion of 29 C.F.R. � 1614.405(b)(1). Pursuant to
29 C.F.R. � 1614.110(a), if an agency decides not to fully implement the
decision of an administrative judge then it must first issue a final
order and then simultaneously file an appeal with the Commission in
accordance with 29 C.F.R. � 1614.402(a). A copy of the appeal must be
appended to the final order. The Commission's Management Directive 110
(EEO MD-110), November 9, 1999, provides that if the agency fails to
issue a final order and file an appeal with the issuance of the order,
the Administrative Judge's decision will be deemed ratified by the agency
upon the expiration of the agency's 40-day period for accepting or not
accepting the Administrative Judge's decision. EEO MD-110, 9-7, note 4.
A review of the record indicates that the agency received the AJ's
decision on October 27, 2003. On December 4, 2003, the agency issued its
final order indicating that it would not implement the AJ's decision.
The agency also indicated that it would be filing an appeal with the
Commission. The Commission, we note, was not listed as a recipient of
the agency's final order. On December 18, 2003, the Commission received,
by fax, a copy of the agency's December 4, 2003 final order, a copy of
a Notice of Appeal form, dated December 6, 2003, two declarations from
agency employees C-1 and C-2 and tracking documentation from Federal
Express indicating that two packages were shipped from Washington,
D.C. to Massachusetts on December 4 and delivered on December 5.
In his declaration, C-1 indicated that, in his capacity as the agency's
Assistant Director for Complaint Operations, he signed the agency's final
order on December 4, but inadvertently wrote December 6th, 2003 on the
Notice of Appeal form. According to C-1, the entire package was mailed
to complainant and her attorney on December 4, 2003, by Federal Express.
C-1 also indicated that, the next day, its appeal was mailed to the
Commission by regular mail. C-2, the Out take Automation Assistant,
corroborated the facts set forth in C-1's declaration.
On January 14, 2004, the Commission received the agency's brief in
an envelope that was postmarked December 17, 2003. Although the brief
was dated December 17, 2003, the accompanying cover letter, also dated
December 17, 2003, indicated that the brief was filed on December 4,
2003. Based on the record before us, we find that the agency filed its
appeal in an untimely manner. The agency received the AJ's decision on
October 27, 2003; therefore, its appeal should have been filed on or
before Monday, December 8, 2003.<1> Here, the agency's final order and
Notice of Appeal were not filed with the Commission until December 18.
We find no persuasive evidence that would establish that the agency
filed an appeal with the Commission in accordance with 29 C.F.R. �
1614.402 and 29 C.F.R. � 1614.110(a). Since the agency's appeal was
untimely, we find that it failed to take final action during the 40-day
period set forth at 29 C.F.R. � 1614.110(a). Accordingly, the AJ's
decision became the final action of the agency on December 8, 2003.
Gay v. Department of the Navy, EEOC Appeal No. 07A20089 (October 9,
2003); McCue v. United States Postal Service, EEOC Appeal No. 01A13411
(August 8, 2002). Because the agency failed to take action during the
mandated time period, it should not have been permitted to challenge
any aspect of the AJ's decision. Gay, supra. Therefore, the previous
decision erred in addressing the appropriateness of the amount awarded
in compensatory damages. Accordingly, the Commission will direct the
agency to provide relief consistent with the AJ's decision. Moreover,
for the reasons stated above, we deny the agency's request to reconsider.
With regard to complainant's contention that the previous decision
erred by upholding the AJ's finding of no discrimination with regard to
the evaluation of her performance, we find that she has not established
that the previous decision involved a clearly erroneous interpretation of
material fact or law. We discern no basis for disturbing the AJ's finding
of no discrimination as to these issues. After a four day hearing,
the AJ found that the record supported the conclusion that complainant's
evaluations were based on her poor performance. These findings of fact
are supported by substantial evidence in the record. The matters raised
by complainant are expressions of her disagreement with the AJ's factual
findings and credibility determinations. Our regulations, however,
require that the AJ's findings of fact be upheld if, like here, there
is substantial evidence in the record to support said findings.
Finally, with regard to complainant's contention that she was entitled
to reimbursement for attorney's fees with regard to the finding of a
per se violation of the Commission's regulations. We find that she has
not established that the previous decision involved a clearly erroneous
interpretation of material fact or law. By federal regulation, the agency
is required to award attorney's fees for the successful processing of an
EEO complaint that alleged discrimination under Title VII of the Civil
Rights Act and the Rehabilitation Act. EEOC Regulation 29 C.F.R. �
1614.501(e)(1)(ii). In order to obtain an award of attorney's fees, a
complainant must be considered a prevailing party. See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
Chapter 11. In determining the degree of success, the Commission will
consider all relief obtained in light of the complainant's goals, and,
if a complainant achieved only limited success, s/he should recover
fees that are reasonable in relation to the results obtained. Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983). Finally, the attorney requesting
the fee award has the burden of proving, by specific evidence, his or
her entitlement to the requested amount of attorney's fees and costs.
Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1983).
In the present case, we agree with the AJ that complainant should not
be considered a prevailing party, for purposes of awarding attorney
fees. The AJ's determination that complainant was not entitled to
attorney fees was based on the fact that she did not prevail on any
significant issue that she raised in her complaint. Therefore, because
she failed to receive any benefit in filing her complaint, the AJ found
that she was not a prevailing party. The AJ also took in account that
the violation in this case was a technical violation of the Commission's
regulations that did not dissuade complainant from seeking EEO counseling.
Notwithstanding the claim of complainant's attorney that he developed the
issue through cross-examination and alerted the AJ to the issue in his
post-hearing memorandum, we find that, in light of complainant's goals
and her level of success, she is not a prevailing party. Like the AJ,
we distinguish this situation from one where the per se violation was
the primary focus of an employee's complaint, not, as in the present
case, an argument raised by complainant after the hearing in order to
demonstrate the alleged discriminatory animus of her supervisor when he
issued her performance evaluations.
CONCLUSION
After reconsidering the previous decision and the entire record, the
Commission will grant complainant's request. The agency's request,
however, is denied. The decision in EEOC Appeal No. 07A40044, as
Modified by this decision, remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request.
ORDER (D0900)
The agency is ordered to take the following remedial action:
A. Within sixty (60) days of the date this decision becomes final,
the agency shall provide complainant's supervisor with two hours of EEO
training regarding the action found to be discriminatory herein.
B. The agency shall issue a check to complainant in the amount of
$1000.00 in payment for non-pecuniary compensatory damages
C. The agency shall consider appropriate disciplinary action against
the supervisor and report its decision. 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. The Commission does not
consider training to be a disciplinary action.
D. 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, including
evidence that the corrective action has been implemented. Copies of
all submissions to the Commission shall be served on complainant and
her representative.
POSTING ORDER (G0900)
The agency is ordered to post at its Springfield, MA, facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (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 ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 this
decision becoming final. 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (P0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____11-15-05______________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________________________ which
found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privilege of
employment.
The Department of the Treasury (Internal Revenue Service), Springfield,
MA, supports and will comply with such Federal law and will not
take action against individuals because they have exercised their
rights under the law. The Commission found that the agency engaged in
discrimination based on reprisal when it issued a memorandum regarding
appointments with an EEO counselor, and it has remedied the employee
affected by the Commission's finding of reprisal discrimination by
ordering supervisory training and posting this notice. The Department
of the Treasury (Internal Revenue Service), Springfield, MA, will
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all federal
equal employment laws and will not subject employees to discrimination
in reprisal for prior EEO activity.
The Department of the Treasury (Internal Revenue Service), Springfield,
MA, will not in any manner restrain, interfere, coerce, or retaliate
against any individual who exercises his or her right to oppose practices
made unlawful by, or who participated in proceedings pursuant to,
Federal equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1The 40th day was Saturday, December 6, 2003; therefore, the agency
had until December 8, 2003 to file its appeal in a timely matter.
29 C.F.R. � 1614.604(d).