01970947
05-25-2000
Christopher C. Bell, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Christopher C. Bell v. Department of Labor
01970947
May 25, 2000
Christopher C. Bell, )
Complainant, )
)
v. ) Appeal No. 01970947
)
Alexis M. Herman, )
Secretary, )
Department of Labor, )
Agency. )
______________________________)
DECISION
On November 5, 1996, complainant filed an appeal with this Commission
regarding his contention that the agency violated the terms of a
September 28, 1994 class action settlement agreement. Accordingly,
we find that the appeal is timely (see 29 C.F.R. � 1614.401(d) and 64
Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614. 504(a) and (b))), and is accepted in accordance
with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).<1>
The issue on appeal is whether the agency violated the terms of a class
action settlement agreement.
In 1984, a group of Black employees of the agency's Employment and
Training Administration (ETA) wrote to the agency's Office of Civil
Rights, complaining of racial discrimination. Subsequently, the group
filed a class complaint on December 31, 1985. On September 28, 1994,
the parties entered into a settlement agreement (the agreement) that,
among other things, provided relief for the class in the form of monetary
awards, salary increases, education and training funds and injunctive
relief. The monetary portion of the agreement exceeded four million
dollars, and included: (1) damages for promotions, repromotions and
performance awards that were denied; (2) a million dollar training fund;
(3) salary increases in excess of $300,000.00; and (4) attorney's fees
and expenses.
The pertinent provisions of the agreement are:
III(A)(6). The phrase 'class representatives' means [A-1 and A-2,
two Washington, D.C. attorneys] who have been the attorneys for the
class agents and the class members throughout this litigation.
III(A)(10). The phrase 'administrators' means [B-1 and B-2, two
Washington, D.C. attorneys, who worked at A-1's law firm] whose
responsibilities shall be as defined in the Agreement.
III(B). The Equal Employment Opportunity Commission (EEOC) has
jurisdiction over the parties and the subject matter of this action
in accordance with Title VII and pursuant to 29 C.F.R. Part 1614.
The Department of Labor (DOL), through the Directorate of Civil Rights
for the Department, has jurisdiction over this Agreement continuing
throughout its term.<2>
III(D). The class covered by and eligible for relief under this Agreement
is defined as follows: All African-Americans who are or were employed
in permanent full-time non-clerical positions at or above Grade 9 in
the [ETA] of the U.S. Department of Labor at its National Office in
Washington, D.C. at any time from December 8, 1983 through the effective
date (the liability period) or who were separated or downgraded from
such a position due to the 1981 reduction-in-force . . . .
(Emphasis added).
V(B)(1). Members of the class as defined in the agreement, other than
class agents, may submit their claims to the administrators, under
penalty of perjury, in accordance with the procedures set forth in the
claim form, by December 15, 1994. Claims postmarked after that date
shall not be eligible . . . .
(2). No later than September 30, 1994, the class representative shall
mail a claim form (Exhibit D) to every known class member at his/her
last known address, pursuant to the procedures set forth in the Notice
provision of this agreement and the Schedule of Mailing and Publication
Notice attached at Exhibit C. Claim Forms shall be made available by
the class representatives to other class members at their request.
VII(A). Individual notice of the terms of this agreement, and of
the opportunity to submit a petition, shall be sent by the class
representative by first-class mail to all members of the class who are
employed by DOL as of September 1, 1994, and to any other class member
previously employed by DOL for whom DOL has an address recorded. Addresses
shall be determined from DOL's computer data base. A copy of the notice
is attached as Exhibit A. It shall be mailed no later than September 30,
1994. The addresses shall be made available to the class representative
on two sets of gummed labels no later than September 28, 1994. DOL shall
also deliver to the class representatives an alphabetized list of the
persons for whom address labels were supplied, with social security or DOL
identification numbers for those persons. The notice to the class members
shall include a Claim Form and instructions, attached as Exhibit D.
(B). Notice of the terms of the Agreement, and of the right to submit a
petition, in the form of Exhibit B, shall be published in the newspapers,
and according to the specifications and schedule, set forth in Exhibit C.
(Emphasis added).
(C). The costs of printing, handling and distributing the mailed and
published notices and claims forms to members of the class shall be borne
and paid for directly as incurred, by DOL, apart from the Settlement Fund.
(X). In the event any class agent, member of the class, or class
representative has good reason to believe, at any time during the
term of this agreement, that DOL has not complied with any provision
of the agreement, such person may, through the class representatives,
seek enforcement of the agreement pursuant to 29 C.F.R. �1614. 504. In
the event the class representatives bring an enforcement action that is
successfully resolved by agreement or decision, they shall be eligible
for an award of attorneys fees and costs of bringing said action pursuant
to 29 C.F.R. �1614.501(e).
By letter dated October 21, 1996, complainant, a Black former employee of
the ETA, wrote the administrators in order to inquire about the agreement,
whose existence he had only recently discovered. Complainant indicated
that he was separated from the agency, at the GS-13 level, in 1981,
pursuant to the reduction-in-force. By letter dated October 29, 1996, B-1
informed complainant that class members learned of the agreement either
by word of mouth, newspaper articles and/or personal mail. She also
informed him that the agency had not provided his name to them, but that
there had been extensive published notification within the tri-state
area of Washington, D.C., Virginia and Maryland. B-1 stated that:
The published notice of the settlement ran three consecutive weeks in the
general news section of the Thursday/Friday editions of 13 Washington
metropolitan newspapers; The Washington Post carried it each Friday
and Sunday for three consecutive weeks.<3>
B-1 provided complainant with a list of the newspapers that carried
the published notice along with the dates that it appeared. Finally,
B-1 indicated that: (1) claims submitted after December 15, 1994, were
not eligible; (2) the settlement fund had already been allocated among
all eligible claimants and no additional money remained in the fund; and
(3) the five year term of the agreement pertained to injunctive relief,
not to its monetary provisions or the time period for submitting claims.
On November 5, 1996, complainant filed this appeal with the
Commission. According to complainant, the agency, by not submitting
his name to the administrators, violated paragraph VII(A) of the
agreement. Complainant also questioned the manner in which the settlement
fund was administered in light of B-1's assertion that there were no
funds remaining in the settlement fund. We also note that complainant,
in a November 25, 1996 letter to the Commission, also argued, in
pertinent part, that the parties' newspaper notification efforts were
"spurious," because The Washington Post, his primary newspaper, only
published four notices of the agreement. Two of these notices, he argued,
appeared over the Columbus Day weekend, a federal holiday period. Finally,
while indicating that he applied for employment with the agency in April
1994, complainant argued that notwithstanding the published notices,
the agency had an obligation to provide his address to the administrators.
B-1, in a letter to the agency dated December 5, 1996, informed the
agency of complainant's concerns and requested that the agency make
him whole. B-1 also indicated that "[w]e are prepared to receive and
process a claim from him, and compute what his share of the settlement
fund would have been, if ETA will commit, as it should, to pay that
amount. The alternative is for us to support his claim against ETA
before the EEOC."
Settlement agreements are contracts between the complainant and the
agency to which ordinary rules of contract construction apply. 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 any resort to
extrinsic evidence of any nature. See Montgomery Elevator v. Building
Engineering Services, 730 F.2d 377 (5th Cir. 1984).
The plain and unambiguous meaning of the agreement was that the agency
would provide, to the class representative, two sets of gummed
labels containing the addresses of "[a]ll members of the class who
[were] employed by DOL as of September 1, 1994, and to any other
class member previously employed by DOL for whom DOL has an address
recorded." In addition, the agency was required to deliver to the
class representatives an alphabetized list of the persons for whom
address labels were supplied. The agency has never argued that it did
not have a record of complainant's address in September 1994; therefore,
we must find that it violated paragraph VII(A) of the agreement by not
submitting complainant's address to the class representatives.
On appeal, the agency maintained that complainant had no standing to
bring this action because the agreement did not permit "[late appearing
claimants]." We are not persuaded by the agency's argument. Based on
the record before us, we find it reasonable to conclude that complainant
would have submitted a timely claim had the agency provided his address to
the class representatives in accordance with the agreement. Without any
explanation from the agency regarding its noncompliance, this Commission
is unwilling to foreclose complainant's right to submit a claim.
The Commission has concluded that the agency did not fully comply with
the above-referenced portion of the agreement. Accordingly, we REMAND
this matter for implementation in accordance with the Order below.
ORDER
1). The agency, within thirty (30) calendar days of the date this
decision becomes final, is ORDERED to contact the complainant and the
class administrator and arrange for complainant to submit a claim to
the administrators. After the administrators process complainant's
claim and compute what his share of the settlement fund would have been
had he submitted a timely claim prior to December 15, 1994, the agency,
within sixty (60) calendar days, shall then issue a check (with interest,
if applicable) to complainant for that amount.
2). If, however, the administrators are now unable or unwilling to
assist in the processing of complainant's claim, the agency shall accept
a claim directly from complainant, process said claim, and, within
sixty (60) calendar days of the date the agency determines the amount
it believes to be due, issue a check (with interest, if applicable) to
complainant for what his share of the settlement fund would have been.
The complainant shall cooperate in the agency's efforts to compute the
amount owed and shall provide all relevant information requested by
the agency. A copy of the agency's actions, accomplishing the above,
must be sent to the Compliance Officer as referenced below.
3). If there is a dispute regarding the exact amount owed by the agency,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant may then file a
petition for enforcement or clarification of the amounts 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."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
_05-25-00________ __________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________ _________________________________
DATE
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov
2The term of the agreement is five years after its effective date.
The effective date was later determined to be October 31, 1994, the 31st
day after notices was mailed to the class members.
3According to B-1, "[w]e received requests for a mailed copy of the
notice from individuals who were made aware of the settlement through
these published notices."