01A20336
01-21-2003
William L. Thomas, Complainant, v. Lawrence Small, Secretary, Smithsonian Institution, Agency Appeal No. 01A20336 Agency No. 96-01-101295
William L. Thomas v. Smithsonian Institute
01A20336
January 21, 2003
.
William L. Thomas,
Complainant,
v.
Lawrence Small,
Secretary,
Smithsonian Institution,
Agency
Appeal No. 01A20336
Agency No. 96-01-101295
DECISION
INTRODUCTION
Complainant timely initiated an appeal from an agency's decision
letter, dated September 18, 2001, concerning his request for interest
on additional attorney's fees awarded by the Commission.
BACKGROUND
On October 12, 1995, complainant filed a formal EEO complaint wherein
he alleged that he was subjected to discrimination on the bases of
race (Caucasian), sex (male), age (over 40) and physical disability
(degenerative arthritis and lower extremity thrombophlebitis). The
parties subsequently entered into settlement negotiations and reached an
oral agreement on February 15, 1996, which included a provision that the
agency would pay reasonable attorney's fees in the amount of $10,000.00.
When notified that the agency would not execute the settlement agreement
complainant sought enforcement by the Commission.<1> In Thomas I, the
Commission ordered the agency to comply in full with the terms of the
oral agreement which included the $10,000.00 attorney fee. Thereafter,
the agency initiated a request for reconsideration.<2> In Thomas
II, the Commission ordered the agency to pay the $10,000.00 attorney
fee, plus interest, and also pay reasonable attorney fees incurred
in pursuit of the enforcement of the settlement agreement including,
but not limited to, complainant's appeal and response to the agency's
request for reconsideration.
Thereafter, on December 8, 2000, complainant filed an application for
attorney's fees in the amount of $43,781.00, in addition to the $10,000.00
attorney fee. The agency denied this amount and paid fees in the amount
of $27,314.67 ( the original $10,000.00, plus interest of $2,314.67,
and $15,000.00 for attorney fees in Thomas II). Complainant appealed.
The Commission determined that complainant was entitled to $40,609 in
attorney's fees for work done on complainant's initial appeal.<3> The
Commission also ordered that the agency shall pay reasonable attorney's
fees incurred in pursuit of Thomas III. Thereafter complainant filed
a Petition for Enforcement. <4> In the Decision on the Petition, the
Commission ordered the agency to pay reasonable attorney fees in the
amount of $2,312.00 for work done during the year 2000 and since the
issuance of Thomas II. This amount was paid on October 15, 2001.
Thereafter, in a Reconsideration of Previous Decision, issued to correct
Thomas III, the Commission ordered the payment of attorney fees in the
amount $40,609.00 incurred in pursuit of the appeal and in response to
the agency's request for reconsideration.<5> The Commission also ordered
attorney fees in connection with the appeal of Thomas V. This amount was
agreed upon by the parties to be $3,500.00. This meant that $44,109.00
($40, 609.00 and $3,500.00) was due complainant in addition to the
original amount of $10,000.00, plus interest of $2,314.67, for a total
of $56,423.67. On August 21, 2001, the agency paid $29,109.00, and on
December 1, 2000, the agency paid $27, 314.67, for a total of $56,423.67.
Complainant requests that the agency pay interest, in the amount of
6% from the date of the decisions in this matter, on the amount of
$25,609.00 ($29, 109.00 less $3,500.00) which complainant submits
represents additional fees awarded by the Commission.<6>
The agency determined that interest was not due because the Commission's
decisions only awarded interest on the attorney fee of $10,000.00,
and did not otherwise award interest. Further, the agency submits
that it timely responded to every one of complainant's fee requests,
and that any delay was caused by the agency's dispute as to the amount
owed pending resolution by the Commission. Also, the agency submits
that it paid all attorney fees due within the time frames established
by the Commission's decisions and applicable regulations.
CONTENTIONS ON APPEAL
Complainant contends that the agency took almost one year to fully and
finally comply with his requests for attorney's fees and that interest
is due on the delayed amounts. The agency contends that interest is
not owed because the Commission only ordered interest on the $10,000.00
attorney fee, which was paid, and not on the other fees awarded by the
Commission. Further, complainant did not seek timely reconsideration of
the Commission's alleged failure to award interest on additional fees,
and an award of attorney's would not be appropriate in this case.
ANALYSIS AND FINDINGS
The amount of attorney's fees may be adjusted in order to compensate the
attorney for the loss in value of money resulting from delay in payment
by the agency. See Missouri v. Jenkins, 491 U.S. 274, 282-83 (1989);
Pennsylvania v. Delaware Valley Citizens' Council, 483 U.S. 711, 716
(1987); Cole v. United States Postal Service, EEOC Petition No. 04950009
(February 19, 1997).
In Cole, id., the issue was whether the agency was obligated to award
post-judgment interest on attorney's fees to petitioner where there was a
three-year delay between the Commission's order to pay attorney's fees and
the actual payment of those fees by the agency. The matter arose out of
a settlement agreement which provided that petitioner was owed reasonable
attorney's fees, but the parties disagreed as to the appropriate amount.
In the Cole case, on August 5, 1991, the Commission ordered payment of
attorney's fees to petitioner in the amount of $18,825. On October 3,
1994, the agency issued petitioner's attorney a check for $18,825.
Cole's attorney submitted a petition arguing that the agency failed
to pay interest on the attorney's fee award, and that the interest in
question accrued since the date of the settlement agreement in 1986.
The Commission disagreed as to the beginning date of the interest.
Under the terms of the settlement agreement, the amount of attorney's
fees to be paid had not been resolved and the amount was not resolved
until August 5, 1991, the day the Commission ordered the agency to pay
the sum of $18,825. However, the agency did not actually pay the award
until October 3, 1994. By that time, more than three years had passed
since the Commission's decision authorizing the award had been issued.
The Commission found that the agency's three-year delay in payment
resulted in interest accruing during that time frame. The Commission
entered an order directing the agency to pay petitioner's attorney
for the interest resulting from its three-year delay from the date
of the Commission's decision. The issue in Cole was delay in payment
after determination of the amount due. Here, complainant is claiming
that the agency delayed in paying the requested amounts of attorney's
fees by seeking from the Commission a request for reconsideration.
Complainant does not argue that payments were delayed once the amounts
were determined by the Commission.
In Shrader v. Department of Agriculture, EEOC Appeal Nos. 01964602 and
01970488(November 25, 1998), there was a lapse of 16 months between
the date that the fee petition was filed and the date of the agency's
final decision on fees. As a result of the delay, complainant requested
interest on attorney fees accruing approximately 30 days after the fee
petition was filed and concluding on the date attorney fees and costs
were paid in full. The Commission found that the agency did not delay
in paying attorney fees once a specific sum was awarded.
In the case herein, the agency, within appropriate time periods, paid
the awards after the Commission's decisions determined the amounts in
controversy. Consequently, the complainant is not entitled to interest
on the attorney's fees.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 21, 2003
Date
1 Thomas v. Smithsonian Institution, EEOC Appeal No. 01965078 (May
16, 1997). (Thomas I).
2 Thomas v. Smithsonian Institution, EEOC Request No. 05970889 (September
25, 2000). (Thomas II).
3 Thomas v. Smithsonian Institution, EEOC Appeal No. 01A12636 (June
20, 2001). (Thomas III).
4 Thomas v. Smithsonian Institution, EEOC Petition No. 04A10010 (August
17, 2001). (Thomas IV).
5 Thomas v. Smithsonian Institution, EEOC Request No. 05A10969 (August
17, 2001). (Thomas V).
6 Complainant calculated this amount to be approximately $1,551.90 for
one year.