Ida H. Wise, Appellant,
v.
Edward J. Derwinski, Secretary, Department of Veterans Affairs, Agency.

Request No. 05920056
Appeal No. 01912873
Agency No. 88-001

GRANTING OF REQUEST TO REOPEN

INTRODUCTION

On October 11, 1991, Ida H. Wise (hereinafter referred to as appellant) initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Ida H. Wise v. Edward J. Derwinski, Secretary, Veterans Administration (sic), EEOC Appeal No. 01912873 (September 10, 1991). EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision. 29 C.F.R. 1613.235(a). A party requesting reopening must submit written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b). Appellant bases her request on 29 C.F.R. 1613.235(b)(2) (the previous decision involved an erroneous interpretation of law or regulation or misapplication of established policy). For the reasons set forth herein, appellant's request is granted.

ISSUE PRESENTED

Whether our previous decision erred in disregarding the issue of appellant's plea for attorney's fees, and erred in affirming the final agency decision that, in rejecting appellant's complaint, was silent on the issue of attorney's fees.

BACKGROUND

Appellant had filed an EEO complaint on March 25, 1987 alleging that certain actions of management constituted discrimination on the basis of race/color, sex, age, and reprisal. For remedial relief appellant had requested, among other things, payment of legal and medical expenses incurred.1 Appellant's reprisal allegations were later rejected as untimely by FAD dated January 23, 1989.

Remaining in the complaint appellant's allegations that in December 1986, the Adjudication Officer followed her to the union officer to ensure that she was taking care of union business even though she had received clearance from her supervisor prior to leaving her worksite, and that the Adjudication Officer yelled at her when she tried to discuss overtime policy. By FAD dated May 15, 1991, the agency rejected these allegations on the grounds that she was no longer aggrieved, and therefore failed to state a claim, citing as authority EEOC Regulation 29 C.F.R. 1613.215(a)(1). The FAD stated that appellant had been reassigned out of the Adjudication Division on June 7, 1989, that the Adjudication Officer had been assigned to another office and a different position since March 9, 1991, and that her immediate supervisor in December 1986 is no longer in that capacity as he has moved to another office. Relying on County of Los Angeles v. Davis, 440 U. S. 625 (1979), the agency found that these interim events made appellant's claim moot.

Appellant appealed the FAD on June 14, 1991. A brief in support of the appeal existed during the pendency of the appeal; it was not, however, part of the record before the Commission and therefore its arguments were not addressed in the Commission's previous decision. The previous decision focused on the questions of whether appellant was no longer aggrieved and whether the Davis standards were satisfied. Finding that interim events completely eradicated the effect of the alleged violation, and that there is no reasonable expectation that the alleged violation will recur, the Commission affirmed the agency's rejection of appellant's complaint.

In her Request to Reopen (RTR), appellant contends that the Commission's previous decision involved an erroneous interpretation of law in its failure to find that appellant was a prevailing party entitled to attorney's fees. Appellant argues that the Commission so held in Ringo v. Department of Transportation, EEOC Appeal No. 01911712 (September 12, 1991), and should apply the Ringo holding to the instant case.

The agency opposes, asserting that the complaint file reveals no evidence that appellant incurred any legal fees prior to her appeal of the May 15, 1991 FAD, and that even if she was represented by an attorney, the agency had no notice of such representation. The agency contends that it cannot be held liable for fees incurred for legal services after the FAD is issued, and argues that the Ringo decision is totally irrelevant. In addition, the agency asserts that appellant made no substantive argument and has satisfied none of the standards for reopening.

ANALYSIS AND FINDINGS

In order to merit the reopening of the Commission's prior decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. 1613.235(b) is met. The Commission has determined that appellant's RTR satisfies the criteria of 29 C.F.R. 1613.235(b)(2) and that our previous decision should be reopened.

On appeal, appellant through her attorney apparently had submitted a brief limited solely to the issue of attorney's fees. Although the brief was not in the record before the Commission when we rendered our previous decision, an agency response to the brief was. The record therefore showed the existence of the brief. The agency response presented an opposition to the brief's argument regarding entitlement to an award of attorney's fees. Since the record suggested, and the brief would have shown, that the issue before the Commission was the award of attorney's fees, it was error to disregard the issue and render a decision on other grounds.

In view of the agency's receipt of the brief, the Commission infers receipt by the Commission as well. We also infer that the receipt was timely. A copy of the brief obtained for the purpose of considering this RTR display the attorney's certificate of service on the agency on July 5, 1991. This was within the 30 day filing time required by EEOC Regulation 29 C.F.R. 1613.233(a) for a brief in support of an appeal.

The argument presented by appellant on appeal was that the agency could not reject a complaint for mootness when it has neither offered nor paid attorney's fees. While acknowledging that interim relief had eradicated the effects of any discrimination in appellant's workplace, appellant contended that she remained aggrieved because she has not been made whole for the attorney's fees and costs she had incurred. She also maintained that she was a prevailing party entitled to an award of fees. In her RTR, she argues that the Commission addressed in identical situation in Ringo v. Department of Transportation, EEOC Appeal No. 01911712 (September 12, 1991), in which the Commission found an entitlement to an award of fees in connection with the complaint and the appeal. Appellant argues that the Commission erred in failing to apply the holding in Ringo to the instant case.

The Commission agrees with appellant that entitlement to fees should have been addressed in our previous decision and in the agency's FAD. As we discuss below, an award of attorney's fees may be appropriate in cases such as this one, where the agency has determined that a complaint is no longer aggrieved.

EEOC Regulation 29 C.F.R. 1613.215(a) provides that an agency shall reject or cancel complaint that fails to state a claim under 1613.212. An agency determination that a complainant has failed to state a claim is appropriate where an appellant is no longer aggrieved, i.e., the appellant's case is moot. A case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome. Powell v. McCormack, 395 U.S. 486, 496 (1969). A controversy is no longer 'live', and the parties have no legally cognizable interest in it, where: (1) there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).

It is well settled that Title VII authorizes the award of reasonable attorney's fees to a prevailing complainant, absent special circumstances. See EEOC Regulation 29 C.F.R. 1613.271(d). See also Newman v. Piggie Park Enterprises, 390 U.S. 400 (1975); Johnson v. Georgia Highway Express, Inc. 488 F.2d 714 (5th Cir. 1974). It is also established that a complainant who settles a discrimination action prior to final judgment and prior to a determination that the opposing party is guilty of discriminatory employment practices may nevertheless be a 'prevailing party,' and thereby entitled to attorney's fees and costs. Miller v. Staats, 706 F.2d 336 (D.C. Cir 1983); Floyd D. Eaglin v. United States Postal Service, EEOC Request No. 05910604 (August 22, 1991); Jansen v. Department of the Navy, EEOC Request No. 095880641 (December 13, 1988).

The Commission has previously considered the proprietary of a fee award in the context of an agency's rejection or cancellation of a complaint.2 In Alfretta Whiting v. ACTION, EEOC Request No. 05900093 (June 27, 1990), the Commission viewed the rejection as improper if appellant was a prevailing party. The Commission reasoned that the failure of the agency to award attorney's fees meant that the effects of the alleged violation had not been 'completely and irrevocably eradicated.' Therefore the Davis standards were not met. In an earlier decision, Carl L. Garcia v. Department of the Army, EEOC Request No. 05890078 (May 26, 1989), the Commission also found that the agency must consider the question of entitlement to attorney's fees when rejecting a complaint. However, rather than finding the entire FAD deficient for failure to rule on the attorney's fees question, the Commission in Garcia upheld the agency's FAD and held that the fees issue should be reserved and separately processed under EEOC Regulation 29 C.F.R. 1613.217(a). The Commission reasoned that the agency's action in providing relief accomplished, in effect, a settlement of the complaint.

The principles of these decisions apply to the case at hand, and require the agency to rule on the question of whether appellant was entitled to attorney's fees. Entitlement is dependent, however, on a determination that appellant is a 'prevailing party.'

If a complainant has succeeded on 'any significant issue in litigation which achieve(d) some of the benefit the parties sought in bringing suit,' the complainant has crossed the threshold of prevailing party status and is entitled to a fee award of some kind. Texas State Teachers v. Garland Indep. School D., 109 S.Ct. 1486, 1493 (1989), quoting with approval Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978). In determining prevailing party status, the Commission has relied on the two-pronged test set forth in Staats, supra. Edward R. Baldwin v. Department of Health and Human Services, EEOC Request No. 05910016 (April 12, 1991). To satisfy the first prong, appellant must have substantially received the relief sought. To satisfy the second, there must be a determination that the complaint was a catalyst motivating the agency to provide the relief. Staats, 706 F.2d at 341.In the instant case, it is not disputed that there has been complete eradication of the effects of the alleged violation, and thus the first prong is satisfied. However, there is no evidence in the record going to the second prong of the test. A remand is necessary so that the agency can rule on the question of whether appellant is a prevailing party.

The agency in its opposition to the RTR has made no arguments regarding appellant's 'prevailing party' status. The agency's opposition to fee entitlement goes primarily to more preliminary requirements which, if not met, would relieve the agency of any duty to address the attorney's fees issue at all. The Agency contends that the agency was not on notice that appellant was represented by an attorney, and that there is no evidence in the complaint file that appellant had incurred any legal fees. Consistent with EEOC Regulation 29 C.F.R 1613.271(d)(1)(iv), attorney's fees are to be paid only for services rendered after a complaint has been filed and after a complainant has notified the agency that he or she is represented by an attorney.3 

Contrary to the agency's contentions, the complaint file shows that the agency was on notice that appellant was represented by an attorney, and further shows some of the legal services performed by the attorney. The agency knew of the representation some time before March 31, 1988, as evidenced by its reference in the March 31, 1988 FAD to 'recent correspondence from your attorney.' Under the above cited Regulation, written submissions to the agency signed by an attorney constitute notice of representation. Furthermore, evidence of legal services performed by the attorney is demonstrated in the agency's FAD of January 23, 1989, which referred to an exchange of correspondence with the attorney, and discussed the information the attorney had provided. We cannot determine from the record the date on which the agency was first notified of representation; this is a question of fact which will have to be answered on remand.

The agency also argues that the Ringo decision is inapposite because the instant case did not involve, at the time of the FAD, any request for attorney's fees. It is not clear what the agency means by the term 'request.' This was not a case in which an event such as a settlement offer, or an agency decision finding discrimination, would put an attorney on notice that it was time to submit a fee request. See EEOC Regulation 29 C.F.R. 1613.271(d)(2) (which requires an attorney to submit a verified statement of fees and costs to the agency within 20 days of receiving an agency decision). This was instead a case in which the agency closed the complaint by the unilateral action of rejection. Therefore no requirement to submit a fee request had arisen at the time the FAD was issued.

We note that in appellant's formal complaint, dated March 25, 1987, legal expenses was included in the statement of relief sought.4  The statement of relief sought was repeated in an internal agency memorandum, issued in advance of the FAD at issue here, that requests consideration of whether the complaint should be rejected under the Davis standards. The memorandum states, with no explanation or discussion, that attorney's fees are not appropriate. While the memorandum sheds no light on the agency's reasons for not addressing the attorney's fees issue, it does illuminate the agency's awareness that appellant had requested legal expenses as part of her relief. Under these circumstances, and where the agency was on notice that appellant is represented by an attorney, the agency had a duty to consider the question of whether appellant is entitled to an award of attorney's fees.

The Commission rejects the agency's additional argument that it is not liable for fees incurred after the FAD is issued. An award of attorney's fees is authorized for work performed in the EEO administrative process. Downing v. United States Postal Service, EEOC Request No. 05870342 (December 11, 1987). This includes work performed on appeal.

The Commission does not hereby rule that the agency's decision must be reversed in its entirety. Appellant has not challenged the finding that interim events have completely eradicated the effects of any discrimination in appellant's workplace. Thus this finding, and the finding that appellant is no longer aggrieved, may be left standing if separated from the issue of attorney's fees. We note that to continue an investigation on the merits of appellant's complaint, where no relief other than attorney's fees would be available if appellant prevailed, would be an inefficient and ineffectual expenditure of resources. The Commission has decided that under these circumstances, the principles of our decision in Carl L. Garcia, supra, are applicable. As in Carl L. Garcia, the agency's actions operated as a settlement of appellant's complaint. The Commission holds that the question of whether appellant is entitled to attorney's fees should be severed from the FAD, and separately processed to decision by the agency. See EEOC Regulation 29 C.F.R. 1613.217(a).

CONCLUSION

After a review of appellant's request to reopen, the previous decision and the entire record, the Commission finds that appellant's request meets the criteria of 29 C.F.R. 1613.235(b), and accordingly, the Commission has decided to reopen its previous decision. The Commission's decision in EEOC Appeal No. 01912873 (September 10, 1991) is MODIFIED, the agency's final decision is VACATED in part, and appellant's complaint is REMANDED for further processing in accordance with this decision and with the Order below. There is no further right of administrative appeal from the decision of the Commission on this request to reopen.

ORDER

The agency is ORDERED to issue a decision pursuant to EEOC Regulation 29 C.F.R. 1613.221(d), concerning only whether the appellant should be awarded attorney's fees. The agency shall issue the decision within sixty (60) calendar days of the date that this decision becomes final, and a copy must be sent to the Compliance Officer, as referenced below. If the decision sets forth a determination that appellant should be awarded attorney's fees, the appellant's attorney shall submit a verified statement of fees and costs within 20 days of receipt of the decision, as provided by 29 C.F.R. 1613.271(d)(2). Pursuant to the Regulation, if the parties cannot subsequently agree on the amount of fees and costs to be awarded, the agency shall issue a decision determining the amount of fees or costs. Any final decision by the agency rejecting or setting the amount of attorney's fees shall include appeal rights to this Commission.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0391)

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.

RIGHT TO FILE A CIVIL ACTION (Q0391)

This decision affirms the agency's final decision in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. With respect to that portion of the agency's decision which the Commission has affirmed, you have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) CALENDAR DAYS of the date that you receive this decision. If you wish to file a civil action on those allegations contained in your complaint which have been remanded to the agency for further processing, you have the right to file such action in an appropriate United States District Court: (1) within thirty (30) calendar days of receipt of notice of final action taken by the agency on your complaint subsequent to this remand; or (2) after one hundred and eighty (180) calendar days of the date you filed your appeal with the Commission, until such time as the agency issues its final decision on your complaint. See Section 717(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., 29 C.F.R. 1613.281(c). You may be required to exhaust the administrative process prior to filing a civil action, depending upon the jurisdiction in which you file. Furthermore, the limitations period for filing a civil action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq. (ADEA) may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 791. You may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the court in the jurisdiction in which your action is 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. '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 (Z0391)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the Commission's decision.

FOR THE COMMISSION:

Frances M. Hart
Executive Officer
Executive Secretariat

April 01, 1992

1. Subsequently, the agency by final agency decisions (FADs) in 1987 and 1988 rejected and cancelled portions of the complaint for reasons of untimeliness and failure to respond to requests for more specific information. Upon appellant's appeal of the FADs, the Commission reversed the agency's decisions and directed the continued processing of appellant's complaint. EEOC Appeal No. 01880817 (March 24, 1988); EEOC Appeal No. 0188247 (August 1, 1988).

2. Although the agency termed its action a 'rejection' of the complaint in its FAD, technically it was a 'cancellation,'  since the Complaint had already been accepted by the agency.

3. The only exception provided by the Regulation is an allowance for reasonable fees for time spent by an attorney in reaching a determination to represent the complainant.

4. This was the nature of the request in the predecessor decision to the Ringo decision relied on by appellant. Kenneth E. Ringo v. Department of Transportation, EEOC Appeal No. 01901583 (April 11,1990).