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value

HOW TO FIGURE OUT "VALUE" OF YOUR EEOC CLAIM
STEP 1. CHOOSE WHAT YOU THINK YOUR CASE IS WORTH
Note: Federal Employees limited to $300,000.00 per discrimination
eeoc cases worth $10,000 eeoc cases worth $20,000 eeoc cases worth $30,000
eeoc cases worth $40,000 eeoc cases worth $50,000 eeoc cases worth $60,000
eeoc cases worth $70,000 eeoc cases worth $80,000 eeoc cases worth $90,000
eeoc cases worth $100,000 eeoc cases worth $200,000 eeoc cases worth $300,000
note: most eeoc cases are dismissed, and result in $0 award

discrimination

Initially, we point out that non-pecuniary compensatory damages are designed to remedy a harm and not to punish the agency for its discriminatory actions.

Valuing

STEP 2. HOW TO GET THE MOST $$$ VALUE IN YOUR CASE
1. SAVE YOUR RECIEPTS
2. OBTAIN YOUR OWN MEDICAL REPORTS
3. KEEP A DIARY OF PAIN/SUFFERING/SUICIDE ATTEMPTS
4. KEEP RECORDS OF:

PRESCRIPTIONS
OTC DRUGS/SUPPLIES/ASPIRIN
PSYCHOTHERAPY VISITS
DOCTOR VISITS
HOSPITAL VISITS
MASSAGE TREATMENTS
ACUPUNCTURE EXPENSES
CHIROPRACTIC EXPENSES
PHYSICAL THERAPY EXPENSES
SPIRITUAL ADVISER VISITS
RELIGIOUS ADVISER VISITS
TRAVEL TO/FROM PER MILE
POSTAGE/STAMPS
JOB HUNTING EXPENSES
MOVING EXPENSES
OTHER QUANTIFIABLE
OUT-OF-POCKET EXPENSES
note: If you win your eeoc case you have a limited time to produce evidence
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Robson
Union Member AFGE Local 1234

Wednesday, July 18, 2012

$100,000 in attorneys fee awarded by EEOC


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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Martin Luther King Jr.

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