01A54034
11-07-2006
Paul J. Brounstein, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Paul J. Brounstein,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 012005540341
Agency No. SAM-01-04
DECISION
Complainant filed a timely appeal with this Commission from a May 20,
2005 letter of determination, wherein the agency found that it was in
compliance with the terms of a February 22, 2005 settlement agreement.
On February 22, 2005, the parties resolved complainant's complaint by
entering into a settlement agreement, which provided that the agency
would, in pertinent part:
7(d) Pay complainant reasonable, out of pocket, medical expenses not
to exceed $2,000, subject to the provision of supporting documentation.2
By letter to the agency dated April 13, 2005, complainant, through his
attorney, claimed breach of provision 7(d). Specifically, complainant
claimed that the agency did not pay him $2,000.00 in out of pocket
medical expenses. Complainant asserted that he provided adequate
documentation to the agency to support his claim of reimbursement, but
that the agency demanded that he submit evidence regarding which portion
of medical bills were actually paid out of complainant's own funds.
The record reflects the following chronological progression of the
breach claim. On February 1, 2005, complainant sent a letter to an
agency representative with an attachment of eleven invoices for medical
treatment. One invoice was submitted for Cranio-Sacral Therapy from an
"Embodyment Coach" (PL) in the amount of $590.00. The remaining ten
invoices were submitted from a physician (GG) in the amount of $1,790.00,
for a total of $2,560.00.
On February 3, 2005, the agency sent a letter to complainant's attorney
stating that the agency did not consider the eleven submitted invoices as
adequate supporting documentation, because the invoices did not indicate
which portion complainant paid from his own funds. The agency stated
"if, for example, some of the medical bills were not covered in part,
or at all by insurance, and complainant had to pay all or portion of
certain bills, then the agency would reimburse him for the amount he
had to pay."
On February 9, 2005, complainant forwarded to an EEOC Administrative
Judge (AJ), who had presided over the underlying complaint that was
resolved through the instant agreement, the same eleven invoices he had
previously submitted to the agency on February 1, 2005. In his letter
to the AJ, complainant claimed he had personally paid the invoices but
that he had no documentation to proffer beyond the invoices themselves.
On February 9, 2005, the agency responded to complainant's letter to
the AJ. Therein, the agency notified complainant that if he had paid
for the medical bills, then "it should be a small matter for him to
furnish proof of payment, such as receipts, credit cards statements,
cancelled checks or insurance statements showing the portion of his
bills for which he was responsible."
Further, the record reflects that on February 10, 2005, complainant's
attorney sent a letter to the AJ. Therein, the attorney stated that
she was advised by complainant that the medical invoices he sent to
the agency were his receipts in which he "paid cash for the medical
services rendered, and he has no other documentation [emphasis added]."
The attorney further stated that she spoke with the agency's EEO office
and was told that it was not an agency policy to require receipts as
opposed to invoices to support reimbursement of medical expenses.
On February 17, 2005, complainant's attorney sent a letter to the
agency with an attachment from complainant's medical providers stating
that complainant personally paid the medical bills. On February 23,
2005, the agency sent a letter to complainant's attorney in which it
gave complainant's attorney various examples of the type of supporting
documentation that would be acceptable, i.e., receipts, credit card
statements, cancelled checks or insurance statements showing the amount
of bills which complainant had paid from his own funds. On February
25, 2005, the agency sent a follow up letter to complainant's attorney
wherein it requested that he stop corresponding further on the issue
unless complainant was submitting receipts or statements from his
physicians providing the amounts he had paid. On April 12, 2005, the
agency notified complainant that it had deposited a total of $10,000.00
for attorney's fees in his attorney's bank account but indicated that
it would not reimburse the $2,000.00 in medical expenses.
In its May 20, 2005 final decision, the agency determined that complainant
did not notify the agency within 30 days of the alleged breach, as
required by 29 C.F.R. � 1614.504(a), and that complainant's breach claim
was not raised in a timely manner. The agency stated that by February
25, 2005, complainant should have known, after many exchanges between
the agency and his attorney, that the agency was not going to pay the
$2,000.00 in medical expenses unless complainant provided receipts
or other relevant supporting documentation to justify his claim for
out-of-pocket medical expenses. Further, the agency found that there
was no breach of provision 7(d)settlement agreement.
On appeal, complainant, through his attorney, contends that he timely
raised the issue of the agency's purported noncompliance with provision
7(d). Complainant states that after submitting supporting documentation
supporting his claim for reimbursement for medical expenses on February 1,
2005, he did not reasonably suspect breach until April 12, 2005, when he
received notification from the agency that the $10,000.00 reimbursement of
attorney's fees had been deposited in his attorney's account, but not the
$2,000.00 reimbursement of medical expenses. Complainant stated that he
then timely filed his notice of breach with the agency on April 13, 2005.
Complainant states that in its February 25, 2005 letter, the agency made
no mention that it would not pay his out-of pocket medical expenses.
Specifically, complainant argues that the agency's letter ". . . is
open-ended and invites - albeit rudely - [complainant] to submit further
documentation in support of his claim." Complainant states that there
was nothing in the agreement requiring him "to submit "receipts" instead
of "invoices" or anything else to support the claim for reimbursement
of $2,000 in medical expenses other than 'supporting documentation.'"
Furthermore, complainant submitted a copy of PL's statement indicating
that complainant paid $590.00 "by cash" for four Cranio-Sacral Therapy
treatment sessions for severe back pain from April 2004 to May 2004.
Complainant also submitted a statement from Dr. GG, indicating that
he had provided complainant and his attorney "receipts for cash [that
complainant] paid me for professional services rendered."
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Timeliness of breach claim
We find that complainant's breach claim is timely. EEOC Regulation 29
C.F.R. � 1614.504(a) provides, in pertinent part, "[i]f the complainant
believes that the agency has failed to comply with the terms of a
settlement agreement..., the complainant shall notify the EEO Director
of the alleged noncompliance within 30 days of when the complainant knew
or should have known of the alleged noncompliance."
In the instant case, we are persuaded by the arguments of complainant,
referenced above, and conclude that complainant timely raised his breach
claim when he contacted the agency representative by letter on April
13, 2005..
Provision (7)(d)
Provision 7(d) provides that the agency would pay complainant
"...reasonable, out of pocket, medical expenses not to exceed $2,000,
subject to the provision of supporting documentation." The record
contains a copy of statements from PL and Dr. GG, reflecting that
complainant paid a total $2,560.000 in cash for medical services,
as referenced above
We note that while the agency argued that complainant was required to
furnish proof of payment regarding which portion of medical bills were
actually paid out of his own funds (i.e. receipts, credit card statements,
cancelled checks or insurance statements), we find the statements from
complainant's two physicians indicating that complainant paid $2,560.00
in cash to be sufficient. The Commission notes, however, that provision
7(d) provides that the agency would pay complainant reasonable, out of
pocket medical expenses not to exceed $2,000.00, subject to the provision
of supporting documentation. Therefore, the Commission determines that
complainant is only entitled reimbursement of $2,000.00, even though it
appears that complainant's out of pocket expenses exceeded that figure.
The appropriate remedy is to order the agency to comply with provision
7(d) of the agreement by paying complainant $2,000.00.
Accordingly, the agency's finding of no breach of provision 7(d) of the
February 22, 2005 settlement agreement is REVERSED and this matter is
REMANDED to the agency for further processing in accordance with the
ORDER below.
ORDER
Within thirty (30) calendar days of the date of this decision becomes
final, the agency shall implement provision 7(d) of the settlement
agreement. Specifically, the agency is ordered to pay complainant
$2,000.00 pursuant to provision 7(d) of the settlement agreement. The
agency shall notify complainant that provision 7(d) is being implemented.
A copy of the agency's notice to complainant must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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)(Supp. V 1993). 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must 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 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 (R0900)
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.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 7, 2006
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The settlement agreement also provides for the agency to continue
complainant's retention bonus contribution at the current rate through
the last pay period ending April 30, 2005; provide a favorable letter
from complainant's former Deputy Director concerning his work and
contributions as an employee; and pay attorney's fees and costs as
evidence by supporting documentation, not to exceed the sum of $10,000.00.
These provisions are not at issue in the instant appeal.
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01A54034
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01200554034
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01A54034