0720090004
03-18-2009
Belinda R. Dahlman, Complainant, v. Nancy Nord, Acting Chairman, Consumer Product Safety Commission, Agency.
Belinda R. Dahlman,
Complainant,
v.
Nancy Nord,
Acting Chairman,
Consumer Product Safety Commission,
Agency.
Appeal No. 0720090004
Hearing No. 531-2007-00239X
Agency Nos. CPSC-EEO-07-003 & CPSC-EEO-07-005
DECISION
Simultaneously with its October 16, 2008 final order, the agency filed
a timely appeal which the Equal Employment Opportunity Commission (EEOC
or Commission) accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal,
the agency requests that the Commission affirm its partial implementation
of an EEOC Administrative Judge's (AJ) decision awarding attorney fees
and costs pursuant to a April 30, 2008 settlement agreement resolving
claims under Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Equal Pay Act of 1963,
as amended, 29 U.S.C. � 206(d) et seq. Additionally, on November 25,
2008, complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 19, 2008, finding that it
was in compliance with the terms of the same 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. Both appeals are being adjudicated in this
decision.
Complainant filed two complaints which were separately investigated.
The first, CPSC-EEO-07-003, alleged in relevant part a violation of the
Equal Pay Act (sex discrimination) when complainant, as a Compliance
Officer, GS-1801-12, was paid at a rate less than male employees for
allegedly substantially equal work from January 2006 onward. The second,
CPSC-EEO-07-005, alleged that the agency violated the Rehabilitation
Act by disclosing confidential medical information to agency employees
not entitled to have it. Following separate investigations, complainant
requested hearings before an EEOC AJ. An AJ consolidated the complaints.
Following the first day of a hearing, on April 30, 2008, the parties
settled the above two claims. Settlement terms included giving
complainant "priority consideration" to the position of Compliance
Officer, GS-1801-7/12, which was defined as being selected for the
position and reassigned thereto; being promoted to GS-13 following a
fully successful appraisal; retroactive step increases; back pay; and
training to agency employees on proper handling of medical information
under the Rehabilitation Act. The settlement agreement term at issue
was that the agency would:
pay reasonable attorney fees and costs, as determined by the EEOC AJ
assigned to this matter, pursuant to the regulations set forth in 29
C.F.R. � 1614.501(e). The Agency will pay the attorney fees and costs
directly to complainant's representatives within 60 days after the
decision on fees is issued by the AJ.
It is uncontested that the parties intended fees and costs to be awarded
for both the claims at issue in this case, and that 29 C.F.R. � 1614.504
was cited only as a method of calculation. Nevertheless, prior to the
AJ's ruling, the agency filed a brief arguing that complainant was not
entitled to fees for the Equal Pay Act claim. It cited to EEOC Equal
Employment Management Directive for 29 C.F.R. Part 1614 (EEO-MD-11),
at 11-1 (November 9, 1999), which provides that while a complainant
who prevails on claims of discrimination alleging a discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and the Rehabilitation Act are presumptively
entitled to attorney fees and costs, a complainant who prevails under
Equal Pay Act are not entitled to attorney fees at the administrative
level.
The AJ's decision awarded attorney fees and costs arising from the legal
work performed in connection with both claims. The AJ wrote that he was
involved in all major settlement discussions, and the parties intended
that fees cover the attorney's work on all claims raised in the case.
The AJ wrote that he suggested the reference to 29 C.F.R. � 1614.501(e)
as a framework to calculate fees, and that the agency acknowledged it
was not until after it signed the settlement agreement that it learned
that MD-110 did not authorize them under the Equal Pay Act.
The AJ's decision ruled that neither contract law nor the Commission
prevents the agency from agreeing to attorney fees to settle any
complaint. The decision found that the agency may have reasonably
traded off fees for other items, noting that if complainant prevailed
at a hearing, she may have been awarded more back pay; liquidated
damages, and compensatory damages for the Rehabilitation Act claim.
The decision noted that if complainant went to federal court, the court
could award attorney fees under the Equal Pay Act, so payment of fees
at the administrative level could deter complainant from pursuing her
claim in federal court, a more expensive forum. The decision awarded
$62,369.50 in attorney's fees and costs of $773.39. The AJ's decision
gave appeal rights to this Commission.
The agency issued a final order dated October 16, 2008, implementing
the AJ's attorney's fees decision, in part. The final order provided
attorney's fees of $8,537 for the Rehabilitation Act claim, and total
costs of $773.39. It rejected the AJ's additional provision of $53,832.50
in attorney's fees as disallowed because it determined that these fees
represented work on the Equal Pay Act claim. Meanwhile, on November
10, 2008, complainant sent a notice of breach to the EEO director.
It was based on the AJ issuing a decision on September 11, 2008,
awarding $62,369.50 in attorney fees, and full payment not being made.
The agency issued a FAD finding no breach. It reasoned, in relevant
part, that the AJ's decision on attorney fees gave appeal rights, which
it properly exercised.
On appeal, the agency reiterates arguments made below, and makes some
additional argument. It argues that the settlement agreement provides
for the payment of attorney fees pursuant to 29 C.F.R. � 1614.501(e).
Relying on the plain meaning rule for interpreting settlements, the
agency argues this means complainant is not entitled to fees for the
Equal Pay Act claim at the administrative level. It argues that whether
it knew when it agreed to pay reasonable attorney fees that 29 C.F.R. �
1614.501(e) precluded fees under the Equal Pay Act is irrelevant.
The agency also argues that underlying EEO-MD-110 and 29 C.F.R. �
1614.501(e) is the principle that the government is immune from payment
of fees which have not been expressly authorized by Congress. Citing
Yancheng v. Baolong Biochemical Products Co., Ltd. v. United States,
406 F.3d 1377, 1382-83 (Fed. Cir. 2005), the agency argues that it is
well established that in the absence of express congressional consent to
a monetary award from the government, the United States and its agencies
are immune from recovery, and that a waiver of sovereign immunity must
be unequivocally expressed in statutory authority and not implied.
On appeal, complainant argues that the AJ properly awarded the full amount
of attorney's fees for the reasons in the AJ's decision. Complainant
argues that the agency's argument on sovereign immunity is inapposite
because it voluntarily waived immunity in the settlement agreement.
She argues that a fair reading of the language of the settlement agreement
shows that the parties intended that once the AJ issued a decision on
fees, the agency must pay the amount decided by the AJ within the 60 days
provided in the agreement. She argues that although the AJ included a
statement of appeal rights in his decision, there is no provision in the
settlement agreement permitting the agency to file an appeal if it does
not agree with the AJ's decision on fees. She argues that the AJ was
without authority to give appeal rights under the settlement agreement.
As an initial matter, we agree with complainant that the AJ should not
have given appeal rights to the Commission from the decision on fees.
In this instance, the AJ's authority to determine fees was based solely on
the provisions of the settlement agreement and not the 29 C.F.R. Part 1614
adjudicatory process. However, the agency cannot be faulted for exercising
its appeal rights provided by the AJ's decision even if provided in error.
Therefore, we do not find the agency's decision to delay payment of the
remaining attorney's fees pending the instant appeal to be, in and of
itself, a breach of the settlement agreement.
However, we find that the AJ properly awarded attorney fees for the work
done on both claims for the reason in the AJ's decision, i.e., the AJ was
authorized to do so by the agency in the settlement agreement it signed.
Given that it is uncontested that the language of the settlement agreement
was intended to include attorney fees for legal work performed on both
claims, we decline to interpret the language to the contrary. The agency
argues that under the doctrine of sovereign immunity, it is immune from
the recovery of attorney fees for work done on the Equal Pay Act claim.
We decline to address this argument, limiting our analysis solely to
one of contract interpretation.1
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).
In this case, we conclude that the agency agreed, on the face of
the settlement agreement, to pay complainant attorney fees in an
amount determined by the AJ. Accordingly, the agency is bound by that
agreement and we are remanding the matter back to the agency for specific
performance of the agreement pursuant to the Order below.
ORDER
To the extent it has not done so already, the agency shall pay attorney
fees and costs directly to complainant's representatives in the total
amount of $62,369.50 in fees and $773.39 in costs. The agency shall
complete this action within 30 calendar days after this decision becomes
final.
A copy of documentation evidencing payment must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 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 (S0408)
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. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 18, 2009
__________________
Date
1 We do note that the case law cited by the agency did not involve
waiver of sovereign immunity under a settlement agreement. Courts have
ruled differently in settlement cases. See e.g., Jordan v. Fusari,
496 F.2d. 646, 651 (2nd Cir. 1974) (state found to have waived its 11th
Amendment sovereign immunity defense, pursuant to a settlement agreement,
that it was not required to pay unemployment compensation to a class of
complainants).
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0720090004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720090004