05970352
08-11-1999
Lee F. Allen, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Lee F. Allen v. Department of the Interior
05970352
August 11, 1999
Lee F. Allen, )
Appellant, )
)
v. ) Request No. 05970352
) Appeal No. 01960074
Bruce Babbitt, ) Agency No. LLM-93-061
Secretary, )
Department of the Interior, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On January 3, 1997, appellant timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Lee
F. Allen v. Bruce Babbitt, Secretary, Department of the Interior, EEOC
Appeal No. 01960074 (December 9, 1996). EEOC Regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the previous decision is of such exceptional nature as to have
substantial precedential implications, 29 C.F.R. �1614.407(c)(3). For
the reasons below, the Commission grants appellant's request.
ISSUES PRESENTED
Whether the agency breached a settlement agreement when its representative
signed the agreement approximately six weeks after appellant signed it.
Whether the agency substantially complied with provisions (1), (2), and
(3) of the settlement agreement, which was not executed until October
1993.
Whether appellant is a prevailing party entitled to attorneys fees.
Whether appellant properly raised allegations concerning reprisal in
connection with provision (5) of the above-referenced agreement.
BACKGROUND
Appellant filed a complaint in which he alleged that his supervisor
and other management officials discriminated against him on the bases
of race (black), sex, and reprisal by: not supporting him in his
efforts to recruit minorities and women in accordance with his job
description; inadequately compensating him; not providing him with a
performance appraisal in October 1992; not providing adequate training
and developmental assignments; not timely processing his requests for
personnel actions; and continuously harassing him. Shortly thereafter,
the parties entered into a settlement agreement which, in essence,
provided that:
By October 1, 1993, appellant would receive a retroactive promotion,
with back pay computed in accordance with 5 C.F.R. � 550.805, to the
permanent position of project coordinator, GS-0301-14; that in his
new position, he would report to the assistant director for support
services; that his new duty station would be Denver, Colorado; and that
he would perform the full range of duties pertaining to the planning,
development, and evaluation of Higher Education and Training (HEAT)
programs for colleges/universities with curricula compatible with the
Bureau's ecosystem, workforce diversity, planning, and other change-based
policies.
By October 1, 1993, appellant and his new supervisor would develop
a mutually agreed upon Individual Development Plan (IDP) which would
include but not necessarily be limited to training and/or developmental
assignments designed to enhance appellant's competitiveness for higher
graded positions for which he might apply and be fully qualified for.
By October 1, 1993, appellant's performance improvement and position
review for FY 1992 would be amended and he would receive a "Level V"
(outstanding) rating, and appropriate monetary awards and/or other
recognition.
The agency would pay reasonable attorney fees incurred by appellant
in connection with the processing of his complaints upon submission of
appropriate documentation in accordance with 29 C.F.R. � 1614.501(e).
The agency would not take reprisal against appellant, either directly
or indirectly, as a result of his having filed a complaint, or having
engaged in an activity or conduct protected by Title VII of the Civil
Rights Act of 1964, as amended, or by any other statute or regulation.
Appellant subsequently alleged that the agency breached all but provision
(4) of the settlement agreement. The previous decision affirmed the
agency's final decision finding no breach of provisions (2), (3), and
(5). Regarding provision (1), it ordered the agency to determine whether
appellant was given the opportunity to perform the tasks specified in
that clause. In his request for reconsideration, appellant appears to be
arguing that the previous decision constitutes an erroneous interpretation
of material fact.
ANALYSIS AND FINDINGS
Settlement Breach
At the outset, we note, as did the previous decision, that the settlement
agreement was signed by appellant on August 23, 1993, but was not
signed by the two agency representatives until October 21 and 22, 1993.
Provisions (1), (2), and (3) of the settlement agreement specified that
the terms contained therein were to be implemented by October 1, 1993.
The previous decision found that the parties inadvertently failed to
revise the implementation date of these terms. It determined, based on
the fact that appellant signed the agreement six weeks before the October
1, 1993 implementation date, that the proper implementation date was to
be six weeks after October 22, 1993, i.e., December 1, 1993. It stated
its rationale for doing so:
"Given the Commission's policy of encouraging voluntary settlement of EEO
complaints, the Commission attempts to interpret settlement agreements
in such a manner as to render them valid and enforceable."
EEOC Appeal No. 01960074, pp. 4-5.
In his request for reconsideration, appellant argues that the agency
had ample time to sign the agreement so that it could be implemented
by October 1, 1993, and that giving the agency until December 1, 1993,
to implement provisions (1), (2), and (3) was improper. We agree.
Settlement agreements are contracts between a complainant and the agency
and it is the intent of the parties as expressed in the contract,
and not some unexpressed intention, that controls the contract's
construction. Eggleston v. Department of Veterans Affairs, EEOC
Request No. 05900795 (August 23, 1990). Where a settlement agreement
is unambiguous on its face, its meaning is determined from the four
corners of the instrument without resort to extrinsic evidence.
Klein v. Department of Housing and Urban Development, EEOC Request
No. 05940033 (June 30, 1994); Brown v. Department of Commerce, EEOC
Request No. 05921059 (June 24, 1993).
In this case, provisions (1), (2), and (3) of the settlement agreement
clearly and unambiguously state that the terms specified therein were
to be carried out by October 1, 1993. Consequently, the agency was
technically in breach of the agreement when its representatives signed
it on October 21 and October 22, 1993. A party cannot avoid a contract
on the grounds of a unilateral mistake that resulted from the party's
inattention or negligence. Highlands Insurance Co. v. Allstate Insurance
Co., 688 F.2d 398, 401 (5th Cir. 1982). In this case, the agency offered
no explanation for why its representatives waited six weeks before signing
the agreement. We therefore find, contrary to the previous decision,
that the agency did, in fact, breach the agreement. .
Remedy
If the Commission determines that the agency is not in compliance with
the terms of a settlement agreement, it may order specific performance or
reinstatement of the complaint at the point at which processing ceased.
29 C.F.R. � 1614.504(c). Given that the agency has already implemented
a substantial portion of the settlement agreement, we find that specific
performance is the appropriate remedy in this case.
Provision (1)
Appellant argues in his request for reconsideration that the position
into which he was placed did not allow him to perform any of the job
functions related to the HEAT programs. The previous decision found the
record inadequate on this issue and remanded for further investigation.
In response to the Commission's order, the agency faxed a compliance
report on April 11, 1997. The compliance report contains a memorandum
from the assistant human resources director to the equal opportunity
director dated April 1, 1997. The report indicated appellant took
part in the development of the description for the project coordinator
position, and that the management officials who prepared the position
description incorporated appellant's comments and input therein.
The compliance report also contains performance plans covering fiscal
years 1993 through 1997. These plans list appellant's position as project
coordinator, GS-14, in the Bureau of Land Management's Denver office.
The 1993-94 plan indicates that appellant served on a detail with the
Bureau of Reclamation's equal opportunity office. In that capacity,
he guided the development of female and minority recruitment activities
for both bureaus. He developed guidance for staff as they collected data
from schools and other organizations regarding recruitment of minorities
and women.
Despite the foregoing, we find that the agency did not fully comply with
this part of the settlement agreement. Provision (1) also specified that
appellant was to be awarded back pay by October 1, 1993. The record
indicates that he was placed in his position, retroactive to October
4, 1992. The agency therefore owed him back pay for the period between
October 4, 1992, and October 1, 1993. Appellant argued in both his
appeal and his request for reconsideration that he did not receive back
pay from the agency until April 1994, seven months after the date on
which the award was due. The agency has not presented any documents
or statements which establish that it paid appellant on time, or which
otherwise contradict appellant's assertion. Appellant argues that, as
a result of the agency's delay in payment, he was deprived of the use of
his money, and was entitled to interest. In this, appellant is correct.
Relief awarded must be sufficient to make the complainant whole in
accordance with the remedial relief provisions of Title VII. See
generally Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976);
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975); Wrigley v.
United States Postal Service, EEOC Petition No. 04950005 (February 15,
1996). Interest accrues because of a delay in payment of a financial
obligation that results in a loss in value of that obligation. 42
U.S.C. � 2000e-16(d). An interest award is therefore necessary to
fully compensate appellant for the loss of his money. Such awards
have several components, depending on the particular circumstances of
the case.
The initial component is the interest that accumulates on the obligation
itself. In this case, for example, it was determined that appellant was
owed back pay between October 4, 1992 and October 1, 1993. Interest
accrued on this obligation and would have been payable had appellant
negotiated for it in the settlement agreement. The settlement agreement
is silent on the matter of interest on back pay. Moreover, appellant
did not request interest on the underlying obligation in his appeal or
on request for reconsideration. Interest on the back pay obligation that
accrued between October 1992 and October 1993 is therefore not at issue.
The record establishes, however, that the agency was supposed to award
appellant back pay by October 1, 1993, but did not actually do so
until April 1994. This seven-month delay resulted in the accumulation
of additional interest. The agency is therefore liable for any interest
that accrued between October 1, 1993, and April 1994. April v. Department
of Agriculture, EEOC Appeal No. 01963775 (June 5, 1997); Cole v. United
States Postal Service, EEOC Petition No. 04950009 (February 19, 1997).
The agency is also liable for any interest that accrued on the unpaid
interest balance since April 1994. This interest, known as post-judgment
interest-on-interest, has been accumulating on the unpaid interest balance
since the payment of the back pay award. To make appellant whole, the
agency would have to award appellant this interest-on-interest as well
as the base amount of interest referred to in the preceding paragraph.
See Air Separation, Inc. v. Lloyds of London, 45 F.3d 288, 290 (9th
Cir. 1995); Quesinberry v. Life Ins. Co. of North America, 987 F.2d
1017, 1031 (4th Cir. 1993); United States v. Hannon, 728 F.2d 142, 145
(2d Cir. 1984).
Provision (2)
In his request for reconsideration, appellant argues that the IDP was
two years late and unrelated to the settlement agreement. The record
indicates that the IDP was signed on September 15, 1995, long after the
October 1, 1993 implementation date set forth in the settlement agreement.
He also argues that the length of time it took to implement that IDP
adversely impacted him by denying him key training to prepare him for
higher graded positions, which, he maintains, delayed opportunities
for further career advancement. The agency acknowledged its two-year
delay in implementing the IDP. Appellant has not, however, presented
any evidence to support his assertion that his career was adversely
affected by that delay.
On page (5) of his request for reconsideration, appellant states that
he had been subjected to stress resulting from the agency's delay in
implementing the IDP. He requests that the Commission reconsider the
previous decision as to the appropriate remedial action that he is
entitled to for the agency's breach of provision (2) of the settlement
agreement. Based on our reading of this argument, we find that appellant
is implicitly requesting compensatory damages arising out of the agency's
breach of the settlement agreement. Our regulations are clear in this
regard. As we noted above, the only two remedies available for breach
of a settlement agreement are specific performance of the terms of the
agreement or reinstatement of the complaint at the point processing
ceased. 29 C.F.R. � 1614.504(c). Compensatory damages are not an
available remedy upon a finding of breach. Kessler v. United States
Postal Service, EEOC Request No. 05970446 (February 26, 1999); Martin
v. Department of Defense, EEOC Request No. 05940745 (August 24, 1995).
Given the fact that the agency has implemented the IDP and appellant has
not demonstrated any specific monetary loss as a result of the delay, we
find that no further relief is available with respect to this provision.
Provision (3)
This provision required, in part, that appellant be given a monetary
award in recognition for outstanding performance. In his request for
reconsideration, appellant argues that the agency's four-month delay in
issuing his award caused him to suffer financial and emotional hardship
because of his uncertainty as to whether he would get his money. The
record establishes that appellant received a cash award of $886, effective
in December 1993. The exact date on which appellant received the award
has not been clearly identified in the record. Appellant appears to
be arguing that there was a four-month delay between August 1993, when
he signed the agreement, and December 1993, when he received the award.
Provision (3), however, provided that the award was supposed to have been
made by October 1, 1993, not in August 1993. The agency was obligated to
pay the award by October 1, 1993, and consequently, the delay in payment
of the award was only two to three months, rather than four months.
The agency is nevertheless liable for any interest that accrued as
a result of its delay in paying the award, including interest on the
unpaid interest that has been accruing since the date of payment in
December 1993. See discussion of provision (1), supra.
Prevailing Party Status
Appellant did not raise provision (4), which dealt with payment of
attorney's fees, either on appeal or on request for reconsideration.
Nevertheless, to the extent that he is a prevailing party, he would be
entitled to additional attorney's fees for work done in connection with
his appeal and request for reconsideration. To be considered a prevailing
party, appellant would have had to have achieved some of the benefits
that he sought in bringing the action. Troie v. United States Postal
Service, EEOC Request No. 05930866 (September 22, 1994). In this case,
appellant won additional interest payments that he might not have received
if he did not bring this action for breach of the settlement agreement.
One who obtains the benefits he sought by alleging breach of a settlement
agreement is a prevailing party. Martin, EEOC Request No. 05940745,
supra; Eaglin v. United States Postal Service, EEOC Request No. 05910604
(August 22, 1991). We therefore find that appellant is a prevailing
party entitled to additional attorney's fees incurred in the prosecution
of his claim for interest in connection with his breach-of-settlement
allegation, through the request-for-reconsideration stage of the process.
Breach of Nonretaliation Clause
Provision (5) stated that the agency would not take reprisal against
appellant, either directly or indirectly, as a result of [appellant's]
having engaged in an activity or conduct protected by Title VII of
the Civil Rights Act of 1964. Appellant maintains in his request for
reconsideration that the agency committed further acts of reprisal against
him, in violation of provision (5). Allegations that subsequent acts of
discrimination violate a settlement agreement are to be processed as new
and separate complaints rather than breach-of-settlement allegations.
29 C.F.R. � 1614.504(c); Warren v. Department of the Army, EEOC Request
No. 05960552 (April 10, 1997). This was clearly pointed out to appellant
in the previous decision. Yet appellant's request for reconsideration
does not address this crucial point. We will therefore call appellant's
attention to the last sentence of the final paragraph on page (6) of the
previous decision: "if appellant believes that he has been subjected to
. . . retaliation for prior EEO activity, then he should contact an EEO
counselor to initiate the EEO process."
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds appellant's
request does meet the criteria of 29 C.F.R. �1614.407(c), and it is the
decision of the Commission to grant appellant's request. The decision
of the Commission in Appeal No. 01960074 is modified. The agency's
final decision that there had been no breach of the settlement
agreement executed on October 22, 1993 is reversed. The agency is
directed to comply with our order below. There is no further right of
administrative appeal from a decision of the Commission on a request
for reconsideration.
ORDER (D1092)
The agency shall determine the appropriate amount of interest due
appellant pursuant to 29 C.F.R. �1614.501, no later than sixty (60)
calendar days after the date that the agency receives this decision.
The award of interest shall include the following:
The interest that accumulated between October 1, 1993, and the date in
April, 1994, that appellant actually received back pay awarded pursuant
to provision (1) of the settlement agreement;
The interest-on-interest that will have accumulated between the date
in April 1994, that appellant actually received payment and the date
that the agency pays appellant the base amount of interest identified
in clause (1) of this order;
The interest on the $886 monetary award that appellant received in
December 1993 pursuant to provision (3), that accumulated between October
1, 1993, and the date in December 1993 that appellant actually received
the award; and
The interest-on-interest, if any, that will have accumulated between
the date in December, 1993, that appellant actually received his award
and the date that the agency pays appellant the base amount of interest
identified in clause (3) of this order.
The appellant shall cooperate in the agency's efforts to compute the
amount of interest due, and shall provide all relevant information
requested by the agency. If there is a dispute regarding the exact
amount of interest, the agency shall issue a check to the appellant
for the undisputed amount within sixty (60) calendar days of the date
that it determines the amount it believes to be due. The appellant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
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 of the
agency's calculation of interest due appellant, including evidence that
the corrective action has been implemented.
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 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 (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.
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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. 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 (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 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 the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
August 11, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat