01A14685
09-12-2002
Dennis D. Fallwell, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Dennis D. Fallwell v. Department of Agriculture
01A14685
September 12, 2002
.
Dennis D. Fallwell,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A14685
Agency No. 990166
DECISION
Complainant filed an appeal dated July 20, 2001, with the Commission
alleging noncompliance with the terms of a settlement agreement which the
parties entered into in March 2001. The Commission accepts the appeal
pursuant to the provisions of 29 C.F.R. � 1614.504(b). The settlement
agreement was executed by complainant on March 8, 2001, and by the
agency's State Executive Director on March 12, 2001. It provided,
in pertinent part, that the agency would:
Pay complainant the lump-sum amount of $2,500.00 within 30 days.
Provide one-time training focused about [sic] effective communication
or leadership training to a certain agency official.
On April 30, 2001, complainant wrote a letter to the agency's Office
of Civil Rights (OCR) at the agency's Washington, D.C. Headquarters
location, alleging that the agency had not complied with the terms of the
settlement agreement. Complainant asserted that he had neither received
the lump sum amount of $2,500.00 nor received any verification that the
agency official had been provided communication or leadership training.
In a form letter sent in July 2001,<1> the OCR inexplicably informed
complainant that his complaint had been closed because a settlement
agreement had been reached and instructed complainant to bring any claims
of noncompliance to the OCR. Complainant thereafter filed the instant
appeal with the Commission.
In a letter to the Commission dated September 4, 2002, in response to the
Commission's repeated requests for a copy of the file and the agency's
determination regarding the alleged noncompliance, the agency stated
that it �ha[d] not issued a decision on [complainant's] allegation� and
thanked the Commission for its �patience.� No further response has been
received from the agency.
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.
If a complainant believes that the agency has not complied with the terms
of a settlement agreement, the complainant shall so notify the agency's
EEO Director, in writing, of the alleged noncompliance. If the agency
does not respond, or the complainant is unsatisfied with the response,
the complainant may appeal to the Commission. 29 C.F.R. � 1614.504(b).
The Commission finds that complainant has complied with these provisions.
The Commission finds that the settlement agreement is plain and
unambiguous on its face. See Hyon v. United States Postal Service,
EEOC Request No. 05910787 (December 2, 1991); Montgomery Elevator
Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
The agency has not even asserted, let alone produced evidence to the
effect, that it complied with the plain terms of the settlement agreement.
Accordingly, it is the decision of the Commission to remand this
matter to the agency for processing in accordance with the Order below.
Should the agency not comply with the Commission's Order, complainant may
file a Petition for Enforcement with the Commission's Compliance Officer,
as set forth below in �Implementation of the Commission's Decision.�
In addition, inasmuch as the agency does not dispute that the settlement
agreement obliged it to pay complainant the sum of $2,500.00 within 30
days of March 12, 2001, and in light of the agency's failure to take
any action to determine whether it had done so for some 17 months after
complainant brought this matter to OCR's attention (as established by
the letter from the agency to the Commission, discussed supra, dated
September 4, 2002), the Commission finds that complainant is entitled
to an award of interest on the sum of $2,500.00, commencing April 12,
2001 until the date the agency issues a check in the applicable amount.
See April v. Department of Agriculture, EEOC Appeal No. 01963775 (June 9,
1997) (the Commission awarded interest on proven compensatory damages
where the complainant timely submitted the claim, but the agency took
no action on the claim for some 20 months).
Consequently, this matter is hereby REMANDED to the agency for processing
in accordance with the ORDER below.
ORDER
Within 45 days after this decision becomes final, the agency shall:
To the extent that it has not already done so, issue a check to
complainant in the amount of $2,500.00, with interest, commencing as
of April 12, 2001, or provide clear evidence that it has already so
compensated complainant;
Provide clear evidence that the relevant agency official has received
training in accordance with the settlement agreement; and
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 full implementation of the terms of the settlement agreement,
as specified herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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 (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
September 12, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
1 The Commission notes that the letter is not dated. However, there is
a facsimile date at the bottom of the letter with a date of July 14, 2001.