BOBBY L. BRAGG, APPELLANT,
v.
JOHN H. DALTON, SECRETARY, DEPARTMENT OF THE NAVY, AGENCY.

Appeal No. 01945699
Agency No. DON 90-67399-002
Hearing No. 340-92-3598X

Appellant initiated an appeal to the Equal Employment Opportunity Commission (EEOC) from a final decision of the agency concerning his complaint of unlawful employment discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e etseq. This appeal is accepted by the Commission pursuant to the provisions of EEOC Order No. 960.

ISSUE PRESENTED

The issue presented is whether, under the facts of this matter, the agency properly denied an award of attorney's fees.

BACKGROUND

From 1985 until 1989, appellant was employed by the agency as the Director of the Combat Center Club System. In 1989, the agency underwent a mandated consolidation which merged the Exchange, Club System, Special Services, and the Morale Administrative Support Division (all Nonappropriated Funds Instrumentalities) into one entity, the Morale, Welfare and Recreation Directorate ("MWR"). Appellant was appointed head of the Food and Hospitality Branch of the MWR. Thereafter, agency officials became aware that the MWR was scheduled to lose its appropriated funds and would have to become profit making. In January 1990, a reorganization was proposed which would eliminate the need for a separate Food and Hospitality Branch. The agency maintained that, as a result of appellant's poor management, the Food and Hospitality Branch was operating at a loss. The record reveals that the clubs, under appellant's leadership, were experiencing large operating losses and the Branch had an overall operating loss exceeding $250,000. Soon thereafter, the MWR underwent a second reorganization which abolished appellant's position and distributed the functions of the Food and Hospitality Branch among the remaining MWR Branches. On January 22, 1990, appellant was notified of the reorganization and was reassigned to the position of Clubs Officer.

Appellant filed a formal complaint of discrimination on April 21, 1990, alleging that the agency discriminated against him on the bases of his race (Black), color (black) and sex (male) when: (a) he was required to work in a hostile environment of harassment, intimidation, exclusion and indifference; (b) he was subjected to repeated interference in and circumvention of his managerial authority and operational policies; (c) he was denied warranted staff additions; (d) he was denied maintenance support which directly impacted his ability to generate revenues; (e) he was abruptly removed from his position without significant notice; (f) his position was awarded to a White person without the documented qualifications which had been required of appellant; and (g) he was denied a position description, performance appraisals, regularly scheduled performance reviews or counseling regarding his work performance.

The agency investigated the complaint and on October 10, 1991, issued a proposed disposition1 which found no discrimination with respect to allegations a through f, but which found discrimination with respect to allegation g. On October 22, 1991, appellant requested a hearing before an EEOC Administrative Judge ("AJ"). Prior to the hearing, the "AJ properly determined that the agency had made an irrevocable finding of discrimination with respect to allegation g and that the only allegations properly before her for decision were allegations a through f." Bragg v. Department of the Navy, EEOC Appeal No. 01931215 (June 22, 1994) at 5; Bragg v. Department of the Navy, EEOC Appeal No. 01931940 (June 28, 1994) at 2. The AJ issued a recommended decision finding no discrimination with respect to allegations a through f.

In a final decision issued on December 7, 1992, the agency adopted the AJ's findings of no discrimination with respect to allegations a through f. The agency found that it had discriminated against appellant with respect to allegation g. As relief, the agency ordered that appellant be given a written position description and appraisals for the rating periods ending January 31, 1988, 1989 and 1990. Appellant timely appealed that final agency decision, arguing that the AJ and the agency erred in finding no discrimination with respect to allegations a through f, and that he was entitled to compensatory damages with respect to allegation g. In its decision on that appeal, the Commission found that appellant had not been subjected to discrimination with respect to allegations a through f, and that he was not entitled to compensatory damages with respect to allegation g, since the discrimination occurred prior to the effective date of the Civil Rights Act of 1991. Bragg v. Department of the Navy, EEOC Appeal No. 01931215 (June 22, 1994). Neither party sought reconsideration of this Commission decision.

Meanwhile, on January 8, 1993, appellant submitted a claim for attorney's fees for the amount of $15,241.00. An agency official initially determined that appellant was entitled to $4,000 in attorney's fees. Thereafter, however, the agency determined that it should not make a finding regarding attorney's fees until it determined whether appellant was entitled to cash awards based on the appraisals. The agency stated that since appellant was no longer employed by the agency, providing him with appraisals for the years 1988, 1989, and 1990, would not provide him with a significant benefit for which he should receive a significant amount of attorney's fees. The agency reasoned that if his remedy for the discrimination included a cash reward, his entitlement to attorney's fees would be greater. Appellant responded on February 4, 1993, by requesting that the agency award him the entire amount of attorney's fees requested in the petition. By letter dated February 9, 1993, the agency stated that it would not make a determination regarding attorney's fees until it determined whether appellant was entitled to any cash awards based on the appraisals. Appellant considered this letter a rejection of his request for attorney's fees and filed an appeal with this Commission on March 5, 1993.

        In its decision on that appeal, the Commission stated that:

Our review of the record reveals that, at the time of the agency's response to appellant's appeal, it had completed appellant's performance appraisals and was making a determination regarding the appropriate amount of attorney's fees. It is our determination that since the agency has agreed that appellant is entitled to some amount in attorney's fees, the Commission will remand the issue of attorney's fees to the agency for a prompt determination regarding the appropriate amount of attorney's fees.

Appellant submitted a revised fee request at the time of his appeal. Appellant is advised that, inasmuch as allegation g was not considered during the actual administrative hearing, all attorney's fees claimed subsequent to the pre-hearing conference that were not devoted to recovering attorney's fees are not recoverable.

Bragg v. Department of the Navy, EEOC Appeal No. 01931940 (June 28, 1994) ("Bragg II"). Neither party sought reconsideration of this Commission decision.

The record reflects that, on July 8, 1993, the agency issued the appraisals sought by appellant. The appraisals did not entitle appellant to any cash awards. (Appellant's counsel states that appellant decided not to pursue a complaint challenging the appraisals.)

On August 9, 1994, after its receipt of Bragg II, the agency issued its final decision on appellant's request for attorney's fees. In its decision, the agency noted that appellant's EEO complaint included seven allegations of discrimination and stated that "[p]rimary among these were [his] claims of a racially hostile work environment and removal from his position as manager" for which appellant "primarily sought reinstatement to his former position."The agency further stated that while its proposed disposition had found discrimination with respect to allegation g because appellant "did not have either a valid position description and performance evaluation . . . and the agency was unable to explain why this was so," such documents were "eventually provide[d]" to him.2 Citing Federal Personnel Manual Chapter 430, ¶ 1,5,3 the agency found that these documents "were outdated when issued" and therefore "did not provide any substantive relief personal to [appellant]." Citing Farrar v. Hobby, 113 S. Ct. 566, 575 (1992), for the proposition that where "the victory is essentially only a pyrrhic one, . . . the only reasonable [attorney's] fee is usually no fee at all," the agency found that appellant was not entitled to an award of attorney's fees.

Appellant, through his counsel, timely appeals the agency's decision with respect to attorney's fees. Appellant notes that 29 C.F.R. §1614.501(e) provides that "[a] finding of discrimination raises a presumption of entitlement to an award of attorney's fees," and that discrimination was found with respect to allegation g. Inasmuch as appellant is a prevailing party, his counsel contends that he "could pursue reimbursement for all time spent in processing the complaint," but concedes that "reduction is a more reasonable approach."Counsel argues that a partial victory may impact the amount of fees but does not entirely negate a fee award. Counsel disputes the agency's characterization of the finding of discrimination as a 'pyrrhic victory,' noting that prior to the effective date of the Civil Rights Act of 1991, compensatory damages were not an available remedy and, consequently, many findings of discrimination could not result in receipt of monetary damages. Counsel states that an "argument that fees are dictated by damages would require that fees be denied in all such pre-Act cases."Counsel further objects to the agency's change in position on the award of fees; argues that such a change constitutes "defiance of the order issued" by the Commission in Bragg II; and seeks clarification of Bragg II's reference to a prehearing conference since two such conferences took place, the first in June 1992 and the second in August 1992. Counsel does not seek a specific amount of fees, but requests "fees reasonably set by the [Commission]."

 In its comments on the appeal, the agency notes that because the AJ and the Commission found that appellant was neither subjected to a hostile work environment nor discriminatorily reassigned, he was not restored to his former position. Therefore, the agency reasons that appellant "was never in a position to benefit from obtaining the position description" and, because no entitlement to a cash award was found, he "did not obtain any personal benefit by receipt of the performance evaluations."While conceding that appellant is a prevailing party, the agency argues that the award of attorney's fees is a two part analysis, with only the first step being the determination of whether the complainant is a prevailing party. If so, the second step is the determination as to what fees are reasonable. Relying on Farrar, as well as the Commission's decision in Lopez,4 the agency argues that appellant "technically" prevailed, but failed to achieve any personal tangible benefit and, therefore, "the only reasonable fee is [] no fee at all."

ANALYSIS AND FINDINGS

An agency shall award attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. 29 C.F.R. §1614.501(e)(1)(i). The burden of establishing entitlement to attorney's fees, including documentation demonstrating hours expended and appropriate fees charged, is upon the complaint. It is normally determined by multiplying the number of hours reasonably expended on the case by a reasonable hourly rate, which result is called the "lodestar" figure. A prevailing party for the purposes of attorney's fees is one who succeeds on any significant issue in litigation which achieves some of the benefit the party sought in bringing the suit. Hensley v. Eckerhart, 461 U.S. 424 (1983).

Appellant's counsel claims that appellant is entitled to attorney's fees because he was a "prevailing party" in this case. The Commission has long held that attorney's fees may only be awarded to "prevailing parties," and the Commission has adopted the standard set forth in Hensley for determining when a party has prevailed for purposes of entitlement to attorney's fees. Complainants will be considered prevailing parties if they succeed on any significant issue in litigation which achieves some of the benefit sought in bringing suit. Id., at 433.The Supreme Court has elaborated on the definition of prevailing party in four cases. In Hewitt v. Helms,5 the Court required the plaintiff to receive at least some relief on the merits of the claim before he could be said to prevail. Id., at 760.In Rhodes v. Stewart,6 the Court reversed an award of attorney's fees premised solely on a declaratory judgment where one of the plaintiffs had died and the other was no longer in the custody of prison officials who violated the plaintiffs' First and Fourteenth Amendment rights. Id., at 2. In Texas State Teachers Assn. v. Garland Independent School Dist.,7 the Court held that to be considered a prevailing party, the plaintiff must show a "material alteration of the legal relationship of the parties."Id., at 792-793.Finally and most recently, in Farrar, supra, the Court pronounced that to qualify as a prevailing party, the plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought. Id., at 573.

In Farrar, the Court stated that, "In short, a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff."Id., at 573.The Court specifically stated that the magnitude of the relief obtained is not dispositive in determining whether or not the parties "prevailed" for fee award purposes. Id. In this manner the court emphasized that the alteration of the legal relationship between the parties is of paramount importance. The Court found the plaintiffs to be prevailing parties in this case because the plaintiffs were entitled to enforce a judgment against the defendant, resulting in a material alteration of the legal relationship between the parties.

Nonetheless, in Farrar, the Court awarded no attorney's fees. In this regard, the Commission notes that the Court applied a two-part analysis in determining entitlement to attorney's fees. The Court stated that, "Once civil rights litigation materially alters the legal relationship between the parties, 'the degree of the plaintiff's overall success goes to the reasonableness' of a fee award." Id., at 574, citing Garland, at 793. The Court found that because an award of nominal damages highlighted the plaintiffs' failure to prove an essential element of their claim for monetary damages, the only reasonable fee was no fee at all. Id. at 575.The Court thus applied the test cited in Hensley for determining the reasonableness of the award, "the degree of success obtained," to conclude that the plaintiffs were entitled to no fees.

In Farrar, the plaintiffs sought $17 million in damages for conspiracy to deprive them of their civil rights; while the jury found a deprivation of civil rights, it found no proximate cause and an award of only $1.00 was ultimately granted. In her concurring opinion in Farrar, Justice O'Connor reiterated the view that the technical nature of the victory goes not to the prevailing party inquiry, but to the determination of what constitutes a reasonable fee. She suggested that there are three factors to be considered in determining whether a victory is deminimis, i.e., technical. The three factors are: (1) the difference between the judgment recovered and the recovery sought; (2) the significance of the legal issue on which the plaintiff prevailed; and (3) the public purpose served by the litigation. Farrar, at 578-579.These three factors were applied in a recent Seventh Circuit case where the court noted that the first factor is the most important of the three, and the second factor is the least weighty. Cartwright v. Stamper, 7 F.3d 106 (7thi Cir. 1993). In its discussion of the public purpose factor, the court in Cartwright held that the more important the right at stake and the more egregious the violation, the more likely it is that a public purpose is served. Id., at 110.In Cartwright, after consideration of all three factors, the court held that the victory was de minimis, and therefore awarded no fees.

 Applying this analysis to the unique set of facts presented in this case, the Commission finds that appellant is a prevailing party. As noted above, in Farrar, the Court stressed that a judgment which materially alters the legal relationship between the parties is the touchstone for prevailing party status. It is clear in this case that a finding of discrimination was made by the agency. Bragg II, supra. Moreover, the Commission notes that this finding of discrimination materially altered the legal relationship between the parties. Because of this finding, the agency was required to prepare and issue a position description and appraisals. Even the agency concedes that appellant is a prevailing party.

Having concluded that appellant is a prevailing party, the inquiry turns to the second prong of the analysis, determining the reasonableness of the fee award. Similar to the court in Cartwright, the Commission applies the three factors set forth in Justice O'Connor's concurring opinion in Farrar to assess the reasonableness of a fee award in this case. See Lopez, supra; Thomas v. Department of State, EEOC Appeal No. 01932717 (June 10, 1994).

Under the first factor, an examination of the judgment recovered and the recovery sought is made. The Commission agrees with the agency that appellant in this case primarily sought reinstatement to his prior position and a work environment free of discriminatory harassment as well as other appropriate relief, including compensatory damages.8 Given that this factor is weighted most heavily, the difference between the judgment recovered and the recovery sought appears to weigh in favor of classifying the success in this case as deminimis. However, appellant did specifically seek to compel the agency to issue his position description and appraisals. While appellant also sought reinstatement, he nonetheless achieved all permissible relief with respect to allegation g. This is a significant difference between appellant and the plaintiffs in Farrar, who failed to prove an essential element of their claim for relief.

The second factor involves the significance of the legal issue on which appellant prevailed. Appellant correctly points out that a finding was made that the agency violated Title VII by denying him a position description and appraisals. This factor therefore suggests that the success in this case was more than deminimis; however, this factor is least weighty in classifying the victory.

Finally, the third factor considers the public purpose served. As noted by Justice O'Connor, "success might be considered material if it also accomplished some public goal other than occupying the time and energy of counsel, court, and client."Farrar, at 578.The Commission finds that this case served a public purpose. In this regard, any violation of Title VII detracts from the goal of eradicating discrimination from the workforce, and therefore should be considered serious.

Accordingly, the Commission is not persuaded under the specific facts of this matter that no award of attorney's fees is required under a Farrar analysis. Under the agency's arguments, in any case where compensatory damages were unavailable, a complainant would be essentially foreclosed from seeking legal representation with respect to allegations which do not concern backpay or similar monetary relief.9 Therefore, the Commission finds that this matter is one that requires a reduction of fees rather than an award of no fees at all. Accordingly, the Commission next addresses the amount of attorney's fees to be awarded.

As stated previously, fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. §1614.501(e)(2)(ii)(B); Blum v. Stenson, 465 U.S. 886 (1984); Hensley, supra. Reasonable hourly rates are set based upon the "prevailing market rate in the relevant community."Blum, at 895.Counsel requesting fee awards must use reasonable billing judgment, that is, they must recognize that hours not properly billed to a private client are also not appropriately requested from an agency following a successful EEO claim.

Further, a reasonable fee award may be assessed in light of the following factors: 1) the time required (versus time expended) to complete the legal work; 2) the 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 on other cases; 5) the customary fee by comparable attorneys in the community; 6) whether the fee is fixed or contingent; 7) time pressure involved; 8) the relief sought and results obtained; 9) the experience, reputation, and ability of the attorney; 10) the undesirability of the case; 11) the nature and length of the attorney-client relationship; and 12) awards in similar cases. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

The instant case particularly concerns the eighth factor, i.e. the relief sought and results obtained. The Commission first notes that attorney's fees cannot be recovered for work on unsuccessful claims. Hensley at 433.The courts have held that the party requesting attorney's fees and costs should exclude time expended on "truly fractionable" claims or issues on which they did not prevail. See National Association of Concerned Veterans (NACV) V. Secretary of Defense. 675 F.2d 1319, 1337, n. 13 (D.C. Cir. 1982). The Hensley court also noted that where the plaintiff has failed to prevail on a claim that is distinct in all respects from the successful claims, the billable hours expended on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Hensley, 461 U.S. at 433.The attorney requesting the fee has the burden of proving, by specific evidence, entitlement to the requested award. The applicant need not record in great detail how "each minute of [the attorney's] time was expended."Id. at 437 n. 12.However, the attorney does have the burden of identifying the subject matter on which she spent her time, which can be documented by submitting sufficiently detailed contemporaneous time records.

The Commission's file in Bragg II contains the material submitted by appellant's counsel in support of her fee request. This material includes an affidavit regarding her hourly rate ($150) and a statement regarding the number of hours expended by counsel with respect to the entire case (126 hours). In addition, counsel included a statement of the number of hours exclusively dedicated to allegation g (17.5 hours). The Commission finds this record adequate to address the issue of the amount of attorney's fees to be awarded.

The Commission first notes that the agency never contested the reasonableness of counsel's hourly rate, and the Commission finds it a reasonable rate for attorneys in counsel's geographic area and with her experience. Turning to the hours expended, counsel claims that the following hours "were exclusively dedicated to the issue of performance appraisals:"

7/31/92 - 8/9/92
Brief preparation on issue
12 hours
8/10/92
Conversation with client
2 hours
12/15/92
Met with client to discuss final agency decision
1.5 hours
1/7/92
Preparation of fees statement
2 hours
The Commission notes that counsel is a former EEOC Administrative Judge and that allegation g did not raise particularly complex or novel questions of fact or law. Accordingly, the Commission finds excessive the claim of 12 hours for legal research into and the briefing of the issue of whether the agency was bound by the finding of discrimination as to allegation g in its proposed disposition. The Commission finds that 5 hours should have been adequate. The Commission is similarly unpersuaded that this issue alone required a 2 hour conversation on August 10, 1992, or that 1.5 hours were required on December 15, 1992, to discuss the final agency's finding of discrimination on allegation g. The Commission finds that a total of 1 hour for both conversations should have been adequate. With respect to preparation of the fee request, the Commission has previously allowed claims for time expended on the submission of a fee request. See Cole v. United States Postal Service, EEOC Request No. 05910450 (August 5, 1991). Given that counsel prepared a statement which reviewed both the number of hours expended on her entire representation and the number of hours which particularly concerned allegation g, the Commission finds that the 2 hours claimed is reasonable. Thus, of those hours specifically addressed by counsel, the Commission finds 8 hours to be appropriate.

Counsel also included an itemization of 108.5 hours (excluding the hours discussed above) expended on appellant's complaint as a whole. While those hours were not exclusively expended with respect to allegation g, the Commission notes that allegation g was still a factor to be considered by counsel while determining whether to accept representation of appellant and while working on such matters as the review of the Report of Investigation, the proposed disposition, etc. Taking the foregoing into account, and eschewing a mechanical or purely mathematical valuation assessment,10 the Commission believes that an award of 15 hours is appropriate.

 Finally, counsel states that the following hours were expended in connection with her attempts to obtain a fee award:

2/2/93
Discussed fees issue with client
1 hour
2/4/93
Prepared response to agency's proposal
1 hour
2/9/93
Telephone conversation with agency
.5 hour
2/17/93
Review agency denial and discuss with client
1 hour
2/19/93
Response letter to agency
.5 hour
4/4/93
Research and submit appeal brief (Bragg II)
8 hours

The Commission finds that the totals of 12 hours expended by counsel with respect to her attempt to obtain a fee award were reasonable.

The Commission therefore approves an award of attorney's fees in the amount of $5250 (35 hours at an hourly rate of $150).

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons, it is the decision of the Commission to REVERSE the final agency decision in this matter with regard to attorney's fees. For the reasons stated above, the Commission finds that appellant's attorney should be awarded fees from the agency for $5250 (35 hours at an hourly rate of $150). Accordingly, the agency shall comply with the following Order.

ORDER

The agency shall compute and issue a check to appellant's attorney for $5250 (35 hours at a rate of $150 per hour) within fifteen (15) days of the date this decision becomes final. The agency shall also submit a report of compliance, as provided below. The report shall include supporting documentation to verify that the action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410.

ATTORNEY'S FEES (H1092)

If appellant 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 this appeal. 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.

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDARDAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHINTWENTY (20) CALENDARDAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and 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 filed on the date it is received by the Commission.

Failure to file with the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and any supporting documentation must be submitted with your request for reconsideration. The Commission will consider request for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. §1614.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092)

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 etseq.; 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:

Ronnie Blumenthal
Director
Office of Federal Operations
March 07, 1996

1. See 29 C.F.R. §1613.217(c).

2. See n. 9, infra.

3. This chapter states that "[a] performance appraisal is in effect until it is replaced by another performance appraisal."The Commission notes that the record does not establish that appellant was in fact issued a later appraisal and, given the agency's failure to issue the three appraisals in issue, the Commission will not assume such issuance. See, also, n. 9.

4. Lopez v. United States Air Force, EEOC Petition No. 03930021 (April 7, 1994).

5. 482 U.S. 755 (1987).

6. 488 U.S. 1 (1988).

7. 489 U.S. 782 (1989).

8. At the time appellant was pursuing his complaint, the Supreme Court had not yet determined that compensatory damages could not be awarded in cases where the discrimination predated the effective date of the Civil Rights Act of 1991.

9. The Commission notes that the Report of Investigation, which found discriminatory denial of a position description and appraisals, was issued in early 1991 and the proposed disposition finding discrimination was issued in October 1991. The agency delayed for nearly two years before issuing the position description and appraisals. The agency has not shown that appellant could not have used this material to his benefit (e.g. in job applications) had they been promptly issued in 1991. The Commission finds disturbing the agency's argument that the material was of no benefit to appellant when issued in July 1993; appellant is not the party accountable for the delay.

10. See Cerney v. Department of the Army, EEOC Request No. 05930899 (October 19, 1994).