U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
* * * SAMUEL R.1 COMPLAINANT,
v.
MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE (CAPITAL METRO AREA), AGENCY.
Appeal No. 0120123028
Agency No. 1K234003909
December 4, 2015
 
DECISION
 
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated May 29, 2012, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. For the following reasons, the final agency decision (FAD) is REMANDED for the Agency to award Complainant attorney’s fees and costs.
  
BACKGROUND
 
Complainant and the Agency entered into a settlement agreement on July 26, 2011. The settlement agreement provided in part that:
 
“The USPS agrees that Complainant will be placed in an Administrative Leave status for the period from December 11, 2009 through December 30, 2009. Any leave used by Complainant during that period will be restored to Complainant.” Complainant’s Appeal, Settlement Agreement, Ex. 1, Provision 3.
 
By letter to the Agency dated October 4, 2011, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that it specifically implement its terms by restoring his leave. The Agency found no breach and Complainant appealed to the Commission, which remanded the case back to the Agency in a decision issued in EEOC Appeal No. 0120120589 (March 21, 2012). The decision ordered the Agency to supplement the record with evidence clearly showing that it complied with the provision of the settlement agreement which agreed to restore Complainant’s leave. Id. The Agency conducted the investigation and issued a FAD on May 29, 2012 stating that it was in full compliance with the settlement agreement because all of Complainant’s leave had been restored. Complainant’s Appeal, Ex. 17. Complainant pointed out that the Agency did not restore all of his leave until pay period May 5, 2012 through May 18, 2012, which was after Complainant alleged breach to the Agency, and after the March 21, 2012 Commission decision. See Complainant’s Appeal. Complainant sent a Verified Statement of Costs and Attorney’s Fees to the Agency for time spent by his attorney securing compliance with the settlement agreement, but the Agency did not respond. See Complainant’s Appeal. Complainant filed the instant appeal for attorney’s fees and costs incurred in securing compliance.
  
CONTENTIONS ON APPEAL
 
Complainant contends that the Agency should be required to pay attorney’s fees and costs incurred in securing compliance. A Verified Statement of Attorney’s Fees and Costs reflects a total of $ 2,154.55. Complainant’s Appeal, Ex. 8. In support of the appeal for attorney’s fees and costs, Complainant points out that the leave the Agency agreed to restore in the July 26, 2011 settlement agreement, was not restored until pay period 11 of 2012 (May 5, 2012 through May 11, 2012). See Complainant’s Appeal.
 
The Agency does not make any contentions on appeal.
  
ANALYSIS
 
Attorney’s fees are available for successful compliance efforts when such efforts are necessary. Peralta v. Dept. of Agriculture, EEOC Appeal No. 01961850 (May 5, 1997). The Commission has awarded attorney’s fees and costs in connection with securing compliance with a settlement agreement. See e.g., Peralta, EEOC Appeal No. 01961850 (awarding attorney’s fees and costs where attorney’s actions, including filing of an appeal, helped secure compliance with a settlement agreement); ONeal v. U.S. Postal Serv., 0120062891 (April 18, 2008) (awarding attorney’s fees and costs where there was no finding of breach but attorney’s efforts secured compliance).
 
While the Agency restored some leave to Complainant prior to his allegation of breach in October 2011, it appears that the final 39 hours of annual leave was not restored until May 2012. Complainant’s Appeal, Ex. 6. A notation on the pay statement for pay period May 5, 2012 through May 11, 2012 indicates, “The 39.00 annual leave did not restore and will be adjusted manually in PP 11/2012.” EEOC Compliance No. 0620120598, Compliance Agency Report, Ex. 6. Further, as Complainant points out, this was ten months after the Agency entered into the settlement agreement with Complainant.
 
In addition to filing an appeal for breach of the settlement agreement, Complainant’s attorney took other steps to ensure that the Agency complied with the agreement. For example, Complainant’s attorney submitted a petition for enforcement of the Commission’s prior decision when the Agency did not timely comply with the order to issue a new decision concerning the breach allegation. Complainant’s Appeal, Ex. 8; see also, EEOC Compliance No. 0620120598, Petition for Enforcement. The Agency did not issue a new decision until May 29, 2012, beyond 30 days from the date that the March 21, 2012 Commission decision became final. Further, on appeal, the Agency does not contest the fact that it cured the breach only after Complainant’s compliance efforts. See e.g., O’Neal, 0120062891 (awarding attorney’s fees and costs where agency did not dispute on appeal that it complied with a settlement agreement after a complainant’s breach allegation); Peralta, 01961850 (awarding attorney’s fees for compliance efforts even though prior Commission decision did not include a finding of breach but remanded case for further development of the record).
 
Therefore, even though Complainant was awarded attorney’s fees and costs for work done up to the point of the settlement agreement, Complainant is also entitled to attorney’s fees and costs for his efforts in securing compliance with the settlement agreement, including time spent for the present appeal.
  
CONCLUSION
 
The Agency’s FAD, finding that it was not in breach of the settlement agreement because it ultimately complied by restoring Complainant’s leave is AFFIRMED. However, the complaint is REMANDED for the Agency to determine attorney’s fees for Complainant’s efforts in securing compliance since it did not respond to the initial fee request.
  
ORDER
 
Within one hundred and twenty (120) days of the date this decision becomes final, the Agency is ordered to award Complainant reasonable attorney’s fees and costs associated with compliance, and for the instant appeal.
 
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.
  
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
 
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 (M0815)
 
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), at Chap. 9 § VII.B (Aug. 5, 2015). 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 (R0610)
 
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.
  
ATTORNEY’S FEES (H0610)
 
If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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.
  
RIGHT TO REQUEST COUNSEL (Z0815)
 
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
 
 
FOR THE COMMISSION:
 
Carlton M. Hadden
Director
Office of Federal Operations
Footnotes

1

This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website.