B-235902, May 22, 1990, 69 Comp.Gen. 469

B-235902, May 22, 1990, 69 Comp.Gen. 469

CIVILIAN PERSONNEL - Compensation - Retroactive compensation - Adverse personnel actions - Attorney fees - Eligibility Although there is no authority to pay attorney fees in connection with an administrative settlement of a complaint of age discrimination, a federal agency may pay the full claim for attorney fees related to settlement of an employee's age and sex discrimination complaints where the agency concedes that the employee would have prevailed in the same manner on just the sex discrimination complaint.

Violet M. Dawes-- Attorney fees in settlement of sex and age discrimination complains:

The issue in this decision concerns a claim for attorney fees incident to settlement of an employee's complaints of discrimination based on age and sex. For the reasons set forth below, we hold that the agency may pay the entire claim for attorney fees where the agency concedes that if the employee had pursued only the sex discrimination complaint, the agency would have settled the case in the same manner.

BACKGROUND

The Goddard Space Flight Center, National Aeronautics and Space Administration (NASA), questions whether it may pay the remaining one half of a claim for attorney fees in an informal settlement of sex and age discrimination complaints filed by Ms. Violet M. Dawes, a NASA employee. /1/

In October 1985, Ms. Dawes filed complaints of discrimination against NASA based on age under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Sec. 633a (1982), and sex under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq. (1982). In April 1989, the agency, following negotiations with Ms. Dawes's attorney, entered into a settlement agreement which involved retroactive promotions for Ms. Dawes and backpay plus interest. /2/

The parties also stated in the settlement agreement that there was "no objective manner" in which to allocate attorney fees to either ground of the complaints (age and sex discrimination) and that of the total attorney fees claimed in connection with these complaints, $4,511.57, the agency would pay one-half and submit the question to our Office whether the remaining fees may be paid. /3/

Ms. Dawes's attorney argues that since her claims of age and sex discrimination arose out of a "common core of facts," she is entitled to payment of the full amount of her attorney fees. Her attorney distinguishes our decision in Albert D. Parker, 64 Comp.Gen. 349 (1985), denying attorney fees in an informal settlement of an age discrimination complaint on the basis that the claim in Parker related solely to age discrimination.

OPINION

In view of the statutory authority granted to the Equal Employment Opportunity Commission (EEOC), our Office does not render decisions on the merits of, or conduct investigations into, allegations of discrimination in employment in other agencies of the government. See 29 U.S.C. Sec. 633a (1982); 62 Comp.Gen. 239 (1983). However, based upon our authority to determine the legality of expenditures of appropriated funds, we may determine the legality of awards agreed to by agencies in informal settlements of discrimination complaints. 62 Comp.Gen. 239, supra.

With regard to the payment of attorney fees in connection with age discrimination cases, we note that the courts have specifically held that attorney fees are not payable in the administrative settlement of such cases. See Kennedy v. Whitehurst, 690 F.2d 951 (D.C. Cir. 1982); Palmer v. General Services Administration, 787 F.2d 300 (8th Cir. 1986). The court in Kennedy reviewed the legislative history of the Age Discrimination in Employment Act and explained that the differences in enforcement schemes between Title VII of the Civil Rights Act and the Age Discrimination Act make clear that only Title VII permits award of attorney fees at the administrative level. As noted above, we held in Albert D. Parker, supra, that attorney fees could not be paid in age discrimination cases which were settled administratively.

Ms. Dawes's attorney argues that Parker, supra, is distinguishable from this case because that decision addressed a settlement of a claim based entirely on age discrimination, whereas this case involves mixed allegations of discrimination based on sex and age. Citing to an EEOC decision involving allegations of discrimination based on sex and age, the attorney argues for payment of the full amount of attorney fees in this case. /4/

We agree that the entire claim for attorney fees may be paid in this case, if otherwise allowable. We have been informally advised by an agency official that if Ms. Dawes had pursued only the sex discrimination charge, she would have prevailed in the same manner as agreed to by the agency in administrative settlement of her complaint.

We also note that the courts have not denied payment of attorney fees for time spent on other unsuccessful claims or legal theories if the claims or theories were intertwined and not "truly fractionable." /5/ Accordingly, the agency may pay the remaining one-half of the attorney fees claimed.

/1/ This request for an advance decision was submitted by Charles Tulip, Jr., Comptroller, Goddard Space Flight Center, National Aeronautics and Space Administration. Comments were submitted by Ms. Dawes's attorney, Edward H. Passman.

/2/ There is no authority for the payment of interest in this case. There has been no finding of an "unjustified or unwarranted" personnel action under the Back Pay Act, 5 U.S.C. Sec. 5596 (1982), and the Equal Opportunity Employment Commission (EEOC) has stated there is no authority for the payment of interest on backpay to federal employees who prevail in discrimination claims. 54 Fed.Reg. 45,747,45,751 (to be docified at 29 C.F.R. Sec. 1614.501(e)) (1989).

/3/ Discrimination based on sex is one ground of the complaint for which attorney's fees are authorized under Title VII. 29 C.F.R. Sec. 1613.271(d) (1988).

/4/ Beatrice Haddock v. Department of the Air Force, EEOC No. 01830822, June 30, 1983.

/5/ Hensley v. Eckerhart, 461 U.S. 424 (1983); Copeland v. Marshall, 641 F.2d 880, 891-92 n.18 (D.C. Cir. 1980) (en banc).