• Wednesday, July 18, 2012

    TSA awards attorney fees of $100,000 by EEOC Claim

    attorney fees

    Garrett T. Donaldson,

    Complainant,



    v.



    Janet Napolitano,

    Secretary,

    Department of Homeland Security,

    Agency.



    Appeal No. 0720090032



    Hearing No. 480-2007-00210X



    Agency No. HS-05-TSA-002118



    DECISION



    INTRODUCTION



    With its December 23, 2008 final order, the agency filed a timely
    appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a).
    On appeal, the agency requests that the Commission affirm its rejection
    of the amount of an award of attorney's fees, by an EEOC Administrative
    Judge's (AJ), following 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.  Subsequently, complainant filed a cross appeal.  For the
    following reasons, the Commission MODIFIES the agency's final order.



    ISSUES PRESENTED



    The issues presented are: (1) whether the AJ erred in determining the
    amount of attorney's fees and other costs awarded to complainant, and (2)
    whether the AJ erred in determining complainant's "make whole" relief.



    BACKGROUND



    During the relevant period, complainant worked as a Federal Air Marshall
    at the Las Vegas Office of the agency.  In a formal EEO complaint dated
    March 7, 2005, complainant alleged that the agency discriminated against
    him based on race (African-American) and reprisal for prior EEO activity
    when:

    (1) in October 2004, he was not selected for the position of Assistant
    to the Special Agent in Charge (ATSAC) in Las Vegas, advertised under
    Vacancy Announcement TSA-04-3298;

    (2) on October 10, 2004, he was not selected for a temporary
    duty assignment to U.S. Immigration and Customs Enforcement (ICE)
    headquarters;

    (3) on October 10, 2004, he was not selected for a temporary duty
    assignment to Mission Operation Control Center;

    (4) in October 2004, he was not selected for a collateral duty EEO
    Special Emphasis Program Manager position,

    (5) in November 2004, he was not selected for an assignment to the Joint
    Terrorism Task Force (JTTF) in Phoenix, Arizona; and

    (6) on March 9, 2006, he was not selected for the position of Acting
    Assistant to the Special Agent in Charge.



    The agency conducted an investigation of complainant's claims. At the
    conclusion of its investigation, the agency informed complainant of
    his right to request a hearing before an EEOC AJ or an immediate final
    agency decision.  Complainant requested a hearing.



    Hearing Stage



    Following a hearing on complainant's claims, the AJ issued a decision
    finding that the non-selection in claim (5), concerning the assignment
    to the Joint Terrorism Task Force, was "tainted by discriminatory and
    retaliatory animus."  The AJ concluded that complainant established a
    nexus between the action in claim (5) and his 2004 prior EEO activity,
    and that complainant's qualifications were plainly superior to those
    of the candidate selected.  Further, the AJ concluded that there
    was evidence of past racial and retaliatory animus by complainant's
    second-level supervisor who served as Acting Special Agent in Charge
    (S1).  Also, the AJ questioned the credibility of S1's testimony at the
    hearing.  Conversely, the AJ found that complainant failed to establish
    discrimination as to the actions alleged in claims (1) - (4) and (6).



    As relief for the finding in claim (5), the AJ ordered the agency to place
    complainant in a collateral or special assignment, or a development or
    leadership training opportunity equivalent to the position denied; pay
    $15,000.00 in non-pecuniary compensatory damages;1 and pay attorney's
    fees in the amount of $114,827.82 and costs in the amount of $7,498.01
    for professional services rendered between March 1, 2005 and September
    10, 2008.



    As to attorney's fees, the AJ stated that it was the agency's burden
    to show, because complainant was employed in Las Vegas, that it was
    unreasonable for him to retain a Washington, D.C. attorney.  The AJ
    concluded that the agency failed to do so, noting that the agency
    did not object to the location of complainant's counsel beforehand,
    complainant's application and initial hiring were handled by agency
    officials based in DC, and agency counsel was permanently located in
    Washington.  Therefore, the AJ found it appropriate to apply reasonable
    hourly rates in Washington, D.C., based on the "Laffey matrix," which
    he calculated ranged between $215.00 and $440.00 per hour over the span
    of complainant's case (between 2005 and 2008).



    Further, the AJ found that application of the attorney's most current rate
    ($440.00) to the total hours claimed was appropriate in consideration of
    a delay in payment and that complainant realized significant achievement
    in this case on a complex matter.  The AJ found that, in the main, the
    number of claimed hours expended were necessary, the billing statement
    sufficiently specific with explanations of how services related to
    the case, and that there was no double-billing for instances when an
    associate's or colleague's work product was reviewed.



    The AJ noted that he made reductions for instances of "block billing,"
    which made it impossible to determine precise services; some travel
    time; time to "locate" documents and handling of  different cases; and
    time to determine whether to accept the case.  He stated that the above
    deductions resulted in fees of $153,103.75, to which he applied a further
    reduction of a 25% across-the-board for a total of $114,827.82.  The AJ
    determined that the claims upon which complainant failed to succeed were
    "inextricably" related to his prevailing claim, and that there was not
    a mathematical formula to reduce attorney's fees by ascribing a value
    to each claim.2



    Final Order and Agency's Contentions on Appeal



    In a final order dated December 23, 2008, the agency accepted the AJ's
    finding of discrimination with regard to claim (5), as well as the order
    for equitable relief and the $15,000 awarded in non-pecuniary compensatory
    damages.  However, the agency rejected the amount of attorney's fees
    awarded by the AJ, and filed the instant appeal.  On appeal, the agency
    asked that the Commission reduce the AJ's award of attorney's fees from
    $114,827.82 to $10,422.50.  The agency stated that this lesser amount
    reflects an appropriate hourly rate and complainant's modest degree
    of success in prevailing on one claim only.  Specifically, the agency
    stated that the AJ erred by allowing complainant to use the prevailing
    rate for Federal District Courts in Washington, D.C. ($440.00 per hour)
    rather than Las Vegas, Nevada (between $250.00 and $300.00 per hour),
    which is where the claim arose and hearing was held, and placing the
    burden on the agency to demonstrate the appropriate hourly rate rather
    than on complainant.



    Further, the agency stated that the AJ should have reduced the number
    of hours by 84% because complainant was successful on only one of seven
    claims.  In addition, the agency stated that associates should receive
    a different hourly rate than partners and duplicative billing for the
    same work by two different people should be avoided.  As to costs, the
    agency stated that a reduction of six-sevenths is reasonable because of
    success on one claim and that the costs could be distinguished for the
    different claims.  Then, the agency requested an additional reduction
    of $18,367.50, stating that the billing statement was excessive and
    redundant.  The agency stated that the case was overstaffed for an
    attorney with the experience of complainant's attorney; and that the AJ
    should have allowed two hours only for pre-complaint determinations and
    for discussion with a colleague.  Summarily, the agency stated that the
    AJ should have awarded $275.00 per hour for 298.5 hours and then reduced
    by six-sevenths for a total of $10,422.50.



    Complainant's Cross Appeal



    Complainant filed a cross appeal, stating that the AJ improperly refused
    to consider two briefs regarding full relief and improperly reduced the
    attorney's fee award by 25%.  He asked this Commission to vacate/modify
    the AJ's award for full equitable relief, and attorney's fees and costs.
    The complainant stated that he sought $187,797.75 in attorney's fees and
    $7,736.27 in related expenses for legal services through November 17,
    2008.  Complainant stated; "it was [his attorney's] specific experience
    with regard to federal employment practices as they relate to federal
    law enforcement officers [and] his recognized expertise in the field of
    federal civil service law generally and employment discrimination practice
    in federal employment" that caused him to retain his legal practice.
    Complainant added that he had to hire an attorney from a Federal region
    rather than Las Vegas and that the agency failed to show that his
    selection was unreasonable.  Complainant stated that the agency does
    not want to pay for review by attorneys other than his primary counsel,
    or for peer or supervisory review within the law practice.



    Further, complainant stated that the agency does not want to compensate
    for four trips his legal counsel made to Las Vegas; including travel
    for depositions, mediation sessions, and the administrative hearing or
    for time it referred to as "non-productive" during travel.  Finally,
    complainant stated that all of his claims are "inextricably linked" so
    it is impossible to separate attorney's fees based on his success on the
    one claim, and that his attorney already made appropriate adjustments.
    Complainant's lead counsel stated, during appeal, that his and his
    associate's hourly rates have since increased.



    Finally, complainant argued that the AJ erred with regard to the
    make-whole relief awarded for the discrimination found in claim (5)
    by ordering the parties to "work together and agree" on a developmental
    special or collateral assignment functionally equivalent to the Joint
    Terrorism Task Force assignment without setting any deadline for the
    parties to reach agreement.  Complainant asserts that when the parties
    did not reach agreement, he submitted a petition to the AJ that proposed
    acceptable equitable remedies.  However, although the agency did not file
    an opposing brief, the AJ refused to consider the petition and issued no
    order finalizing the developmental assignment complainant was entitled
    to as make-whole relief.







    ANALYSIS AND FINDINGS



    Attorney's Fees and Costs



    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,
    et al. 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. Dep't of Transportation, EEOC
    Request No. 05970101 (February 4, 1999) (citing Hensley v. Eckerhart,
    461 U.S. 427, 433 (1983)).



    The fee award is ordinarily determined by multiplying a reasonable
    number of hours expended on the case by a reasonable hourly rate, also
    known as a "lodestar." See 29 C.F.R. § 1614.501(e)(2)(ii)(B); Bernard
    v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998).
    In determining the number of hours expended the Commission recognizes
    that the attorney "is not required to record in great detail the manner
    in which each minute of his time was expended." Bernard, supra.  However,
    the attorney does have the burden of identifying the subject matters which
    he spent his time by submitting sufficiently detailed and contemporaneous
    time records to ensure that the time spent was accurately recorded.  Id.



    Further, a reasonable fee award may be assessed in light of factors such
    as: (1) the time required (versus time expended) to complete the legal
    work; (2) novelty or difficulty of the issues; (3) the requisite skill
    to properly handle the case; (4) the degree to which counsel is precluded
    from taking other cases; (5) the relief sought and results obtained; and
    (6) the nature and length of the attorney-client relationship. See Cerny
    v. Dep't of the Army, EEOC Request No. 05930899 (October 19, 1994).



    Standard of Review



    The First Circuit in Coutin v. Young & Rubicam, 124 F.3d 331, 337
    (1st Cir. 1997), a case cited by EEOC Management Directive (MD)-110,
    provides guidance as to the appellate standard of review for an AJ's
    determination of attorney's fees:



    We review fee awards deferentially, according substantial respect to the
    trial court's informed discretion. See Brewster v. Dukakis, 3 F.3d 488,
    492 (1st Cir. 1993). We will disturb such an award only for mistake of law
    or abuse of discretion. See United States v. Metropolitan Dist. Comm'n,
    847 F.2d 12, 14 (1st Cir. 1988). In this regard, an abuse of discretion
    occurs "when a material factor deserving significant weight is ignored,
    when an improper factor is relied upon, or when all proper and no improper
    factors are assessed, but the court makes a serious mistake in weighing
    them." Foster v. Mydas Assocs., Inc., 943 F.2d 139, 143 (1st Cir. 1991)
    [internal quotation marks and citations omitted].



    124 F.3d at 336. Therefore, in this appeal, the Commission will therefore
    determine if the AJ made a mistake as a matter of law or abused his
    discretion.



    Determination of Reasonable Hourly Rate



    The reasonable hourly rate is generally determined by the prevailing
    market rate in the relevant legal community for similar services by
    lawyers of reasonably comparable skill, experience and reputation.
    Blum v. Stenson, 465 U.S. 886 (1984).  The AJ in this case relied on
    the Washington D.C. prevailing market rates to determine the reasonable
    hourly rate for complainant's attorneys, a Washington law firm.  Using the
    "Laffey Matrix", a formula relied upon by federal courts to establish
    the range of hourly rates for attorneys practicing in the Washington,
    D.C. area, the AJ found reasonable hourly rates between $215.00 and
    $440.00 for the time period incorporating this case.  The AJ approved
    an hourly rate of $440.00 in this case, applied to the entire period
    of the claim in lieu of applying changing historical rates in order to
    compensate complainant's attorneys for the delay in payment.



    On appeal, the agency argues that complainant should not be awarded
    more than the prevailing rates for attorneys in the Las Vegas area
    (between $250.00 and $300.00), where the action arose and was litigated.
    Therefore, the agency asserted that an hourly rate of $275.00 should be
    applied.



    The Commission has found that if a party does not find counsel
    readily available in his/her locality with whatever degree of skill may
    reasonably be required, it is reasonable that the party go elsewhere to
    find an attorney even if it results in the payment of a higher hourly
    rate than the prevailing market in the location where the action arose.
    See Southerland v. U. S. Postal Service, EEOC Appeal No. 01A05403 (October
    16, 2002).  The burden is on the agency to show that complainant's
    decision to retain out-of-town counsel was unreasonable.  Id.



    In this case, we find that the AJ did not abuse his discretion when
    he determined that the agency failed to establish that complainant's
    use of an out-of-state attorney was unreasonable.  We note that the
    AJ based this decision on defensible criteria, including: the fact
    that the agency never lodged an objection during the proceedings to
    the location of complainant's counsel; some of the actions at issue
    were handled by Washington-based agency officials; some of the agency
    officials called to testify had Washington duty stations; and agency
    counsel was permanently located in the Washington metropolitan area.
    Accordingly, we affirm the AJ's approval of an hourly rate based on the
    prevailing market rates in the Washington, D.C. area.  In addition, we
    find no abuse of discretion has been established by the agency in the
    AJ's decision to apply the "delay of payment" standard to the entire
    litigation period.  See Missouri v. Jenkins, 491 U.S. 274 (1989). As
    such, we conclude that it was reasonable for the AJ to apply an hourly
    rate of $440.00 to complainant's entire attorney fee request.







    Determination of Hours Reasonably Expended, Including AJ's 25%

    Reduction in the Lodestar in Light of the Results Obtained



    Complainant is only entitled to an award for time reasonably expended. It
    does not always follow that the amount of time actually expended is
    the amount of time reasonably expended.  Donald v. Dep't of Labor, EEOC
    Request No. 01943425 (August 31, 1995).  Rather, "billing judgment" is an
    important component in fee setting, and hours that would not be properly
    billed to a private client are also not properly billed to the agency
    pursuant to a successful EEO claim. Id.  "Counsel for the prevailing
    party should make a good faith effort to exclude from a fee request
    hours that are excessive, redundant or otherwise unnecessary." Hensley,
    461 U.S. at 433.



    "[R]esults obtained" is an important factor in determining an award of
    attorney's fees.  Hensley, 461 U.S. at 434.  Considerations include
    whether complainant failed to "prevail on claims that were unrelated
    to the claims on which he succeeded . . . [and whether complainant]
    achieve[d] a level of success that makes the hours reasonably expended
    a satisfactory basis for making a fee award."  Id.  The latter considers
    whether the claims "involve[d] the same facts and legal theories."  Id.
    On appeal, the agency has asked that the Commission reduce the AJ's award
    of attorney's fees from $114,827.82 to $10,422.50.  The agency stated that
    this lesser amount reflects an appropriate hourly rate and complainant's
    modest degree of success in prevailing on one claim only.  As already
    noted above, the agency stated that the AJ should have reduced the number
    of hours claimed by counsel by 84%, rather than 25%, because complainant
    was successful on only one of seven claims. The agency requested an
    additional reduction of $18,367.50, stating that the billing statement was
    excessive and redundant, asserting that the case was overstaffed for an
    attorney with the experience of complainant's attorney; and that the AJ
    should have allowed two hours only for pre-complaint determinations and
    for discussion with a colleague.  Summarily, the agency stated that the
    AJ should have awarded $275.00 per hour for 298.5 hours further reduced
    by sixth-sevenths.



    In response, complainant contends that his successful claim was
    so "closely intertwined" with his unsuccessful claims so as to be
    unfractionable.  He further asserts that all the 481.4 hours claimed for
    services between March 1, 2005 and September 10, 2008, were reasonable.



    The Commission, after careful review of the arguments on appeal, concludes
    that the agency has failed to meet its burden of establishing that the
    AJ abused his discretion in determining that, in the main, the number of
    hours claimed reflect work and time which was reasonable and necessary,
    the billing statement contained sufficient specificity to make such
    a determination, and double billing for the services of associates
    or colleagues did not usually occur.  On the other hand, the AJ also
    appropriately reduced the fee petition by $6,102.00 for multiple billing
    of attorney conference time, as well as a reduction of an additional
    four hours, or $1,760.00, for specific time claimed he found excessive.



    The AJ also noted that the agency was correct in its assertion that
    complainant's fee recovery should be limited to the amount reasonable
    in light of the limited results obtained.  Therefore, the AJ applied
    a 25% across-the-board reduction to reflect the fact that complainant
    did not prevail on all claims in his complaint.  Before the AJ and on
    appeal, the agency asserts that the AJ should have reduced the total fee
    entitlement by six-sevenths to reflect that complainant only prevailed
    on one of seven claims in his complaint.  Complainant has responded that
    no reduction should be taken as his claims were so interwoven that they
    were unfractionable.



    The Commission has approved the method of addressing the appropriate
    amount of attorney's fees by taking a percentage across-the-board
    reduction of compensable time billed, particularly when a complainant
    is not completely successful. See Blinick v. Dep't of Housing and Urban
    Development, EEOC Appeal No. 07A20079 (February 3, 2004)(citing McGinnis
    v. Dep't of Defense, EEOC Request No. 05920150 (July 15, 1992)).
    In this case, we conclude that neither the agency nor complainant
    have established that the AJ abused his discretion in taking a 25%
    across-the-board reduction in fees to reflect the limited success
    complainant had in this case.  The AJ agreed with complainant that the
    claims on which he failed were "inextricably" related to the claim on
    which he prevailed.  In support, the AJ noted that all seven claims
    were bound by a continuum of events, a common core of facts, and were
    presented jointly because they involved overlapping issues, witnesses
    and discovery.  Moreover, the AJ noted that evidence on some of the
    unsuccessful claims served as relevant background evidence directly
    relating to complainant's successfully litigated claim and served to
    establish the essential nexus to his prior, protected activity.  Based on
    our review of the record and consideration of the arguments presented
    on appeal, we cannot conclude that the AJ abused his discretion in this
    matter when he declined to adopt the agency's arbitrary mathematical
    formula because all the matters were joined by a common core of facts,
    and instead reduced the fees across-the-board by 25% to reflect that
    complainant did not prevail on all claims raised in his complaint.



    We also find that corresponding costs are consistent with reasonable
    legal representation in this case, so the AJ's award of $7,498.01 is
    undisturbed.  See generally MD-110, Chapter 11, V(A).



    As complainant prevailed at the appellate state, he is now also entitled
    to attorney's fees for work performed at this stage.  EEO Management
    Directive 110 (MD-110), Chapter 11, VI(A)(3) (November 9, 1999).
    See Order below.



    Make-Whole Relief



    As already noted, the AJ determined that complainant should be made
    whole for the discrimination and unlawful retaliation he suffered when
    he was not selected for assignment to the Joint Terrorism Task Force.
    Therefore, the AJ ordered the agency to:



    appoint complainant to a special or collateral assignment, or [provide]
    him with a development or leadership training opportunity, functionally
    equivalent to the JTTF [Joint Terrorism Task Force] position which he
    was wrongfully denied, considering the current stage of complainant's
    career and the fact that complainant was appointed to the Phoenix JTTF
    after he instituted this action.  The agency and complainant will work
    together and agree in determining the specific position or opportunity
    to satisfy this criteria.



    In his cross-appeal, complainant indicates that the implementation of
    this order by the AJ was never resolved between the parties, and because
    the AJ did not impose a deadline for its resolution, make-whole relief
    remains an outstanding issue.



    The Commission agrees that this issue should have been resolved below.
    Therefore, we will remand that matter back to the agency to conduct
    time-limited negotiations with complainant and his representative to
    resolve this issue, followed by the issuance of an agency final decision
    with appeal rights to the Commission.



    CONCLUSION



    Based on the above, we MODIFY the final agency decision and REMAND the
    matter to the agency for remedial action consistent with this decision
    and the Order below.



    ORDER



    (1) Within forty-five (45) days of the date this decision becomes final,
    the agency shall pay complainant $114,827.82 in attorney's fees and
    $7,498.01 in related costs as ordered by the AJ.



    (2) The agency shall also pay attorney's fees for the appellate stage
    consistent with the statement entitled the same below and complainant
    shall cooperate with the agency's efforts.



    (3)  Within sixty (60) days of the date this decision becomes final, the
    agency shall conduct negotiations with complainant and his representative
    to resolve the agency's compliance with the AJ's order of make-whole
    relief for complainant as discussed in the body of this decision.  If the
    parties reach an agreement within the 60-day period, that agreement
    shall be reduced to writing and executed as full and final resolution
    of this make-whole issue.  If the parties do not reach an agreement,
    the agency shall promptly issue a final decision on the matter with
    appropriate appeal rights to this Commission.



    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.

                             

    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 (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



    December 24, 2009



    __________________

    Date







    1 Regarding compensatory damages, the AJ stated that complainant offered
    limited evidence of damages of any nature other than an assertion that
    the sidetracking of his career physically and emotionally exhausted him.
    The AJ stated that he based $15,000.00 on amounts awarded in similar
    cases.



    2  The AJ noted that he did not consider a subsequent November 18, 2008
    petition from complainant because he found it untimely filed, the agency
    had already responded to his prior petition, it contained different
    information, and it increased the fees and costs request to $195,534.02.





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    2

    0720090032









    U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

     Office of Federal Operations

    P.O. Box 77960

    Washington, DC 20013







    11

    0720090032
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