01984227
02-11-2000
Dianne M. Beale, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Dianne M. Beale v. Department of Health and Human Services
01984227
February 11, 2000
Dianne M. Beale, )
Complainant, )
)
v. ) Appeal No. 01984227
) Agency No. FDA 028-96
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
)
DECISION
Complainant timely appealed the agency's decision denying her request
that a settlement agreement be enforced. (see 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),
and (see 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and
hereinafter cited as 29 C.F.R. �1614.504(b)), EEOC Order No. 960,
as amended.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Complainant filed a formal EEO complaint wherein she alleged that she was
discriminated against on the bases of her race (black) and sex (female)
when she was denied a promotion to the position of Small and Disadvantaged
Business Utilization Specialist, GS-14; she was unofficially detailed
to OD, Division of Central Services; and she was accused of releasing
classified information to a contractor. The complaint was accepted for
investigation. Subsequent to the investigation, complainant requested
a hearing before an EEOC Administrative Judge.
By letter dated February 26, 1998, agency counsel forwarded to
complainant's counsel an offer to settle the complaint. The offer
provided that complainant would receive a lump sum of $3,000.00; and a
letter stating that the Office of Internal Affairs investigation of her
was "inconclusive," provided that the settlement included a provision
that complainant would be reassigned to the position of Support Services
Supervisor, GS-14, Center for Food Safety and Applied Nutrition Services
Branch. Pursuant to a series of conference calls, on March 5, 1998,
complainant's counsel by letter accepted the agency's offer contained in
the letter dated February 26, 1998, and complainant withdrew her request
for a hearing. The EEOC Administrative Judge remanded the complaint on
March 5, 1998. The agency forwarded a formal settlement agreement to
complainant's counsel but complainant did not sign it. This agreement
stated in relevant part that:
... The parties agree that the terms of the Agreement constitute a full
and complete settlement of all claims which Complainant may have against
the agency, its officers, agents, or employees which are encompassed
by or arise out of the above-referenced complaint, including, but not
limited to, claims for back pay, damages, or attorney fees.
Complainant and the Agency agree that Complainant will be reassigned
to the position of Support Services Supervisor, GS-14, Center for Food
Safety and Applied Nutrition Services Branch.
The Agency hereby agrees to issue a letter to Complainant stating
that the Office of Internal Affairs Investigation of [complainant],
Case No. 96-OIA-971-053 was inconclusive, has been closed, and will not
be reopened.
The Agency hereby agrees to pay Complainant $3,000.00.
By letter dated March 30, 1998, complainant's counsel submitted to
the agency's Director of the Office of Equal Employment and Civil
Rights a claim that the agency had completely failed to implement the
settlement agreement. Complainant requested specific implementation
of the settlement. According to complainant, the specific acts of
noncompliance were that:
1. Complainant does not have a permanent office or a position description
for her new position of Support Services Supervisor, Center for Food
Safety and Applied Nutrition Services Branch. Complainant stated that
she was informed that both items are still in the planning stages.
2. Complainant has not received the promised letter from the agency to
the effect that the Office of Internal Affairs investigation of Case
No. 96-OIA-971-053, was inconclusive, has been closed, and will not
be reopened.
3. Complainant has not received the lump sum check for $3,000.00.
By letter dated April 3, 1998, complainant's counsel submitted to
the agency a request for attorney's fees in the sum of $19, 736.05.
Counsel stated that the settlement agreement was silent on the issue
of attorney's fees because the parties never reached agreement on the
issue. Counsel maintained that since complainant is a prevailing party,
she is entitled to an award of reasonable attorney's fees and costs.
In support of the position that complainant is a prevailing party, her
counsel noted that she was to receive a monetary award in lieu of back
pay and compensatory damages, confirmation that the Office of Internal
Affairs' investigation of her was over, and a beneficial reassignment.
In its final decision dated May 1, 1998, the agency determined that
the settlement agreement has not been breached. The agency stated that
allegations of noncompliance are frivolous. The agency determined
that complainant's demand for an implementation period of less than
one month is unreasonable. According to the agency, no time frame for
implementation of the settlement agreement was specified. With regard
to the issue of attorney's fees, the agency stated that its counsel made
it clear to complainant's counsel that an award of attorney's fees would
not be part of any settlement agreement. The agency determined that it
never agreed to leave the issue of attorney's fees silent. The agency
stated that it included a specific provision in the formal settlement
that would have precluded attorney's fees but that complainant did
not sign the formal agreement. According to the agency, the parties
never had a meeting of the minds with regard to the terms which were
to be contained in the settlement agreement. The agency noted that the
Administrative Judge overruled its objection to a settlement which was
not incorporated into a finalized agreement.
On appeal, complainant contends that the agency has taken an unreasonable
amount of time in complying with the settlement agreement. Complainant
argues that the measures to be taken by the agency were within the
agency's control and therefore they could have been implemented promptly.
In later submissions, complainant acknowledges that she received the
$3,000.00 lump sum, and that she was reassigned with a new position
description. However, complainant claims that she should receive
interest on the $3,000.00 from the date of the final decision to the
date of the agency's check to her. With respect to the attorney's fees
issue, complainant contends that she was the prevailing party in the
settlement agreement in light of what she received under the agreement.
Complainant argues that the agency's lack of objection in its final
decision to the reasonableness of the time expended by her counsel and
the amount of attorney's fees constitutes a concession on these issues.
Further, complainant maintains that the settlement agreement would not
have been achieved without leaving the attorney's fees issue silent.
Complainant states that the EEOC AJ was fully aware that the agreement
did not address the attorney's fees issue. Complainant argues that the
agency's position that she is not entitled to attorney's fees because
there were no provisions for attorney's fees in the settlement is
without merit. According to complainant, the agency's contention that
it never agreed to leave the issue of attorney's fees silent is belied
by its counsel's statement in the settlement offer that the offer will
remain on the table until Thursday, March 5, 1998 at 6 p.m.
In response, the agency asserts that it implemented the settlement in good
faith and in a timely manner. According to the agency, it issued a check
for $3,000.00 to complainant on June 18, 1998. The agency asserts that
the claim for interest on the $3,000.00 lacks merit since payment was made
in a short amount of time and there was no time limit specified in the
agreement. With regard to the Office of Internal Affairs' investigation
of her, the agency maintains that its letter of February 26, 1998,
offered to issue complainant a letter stating that the investigation was
inconclusive rather than complainant's position that she was to receive
a letter stating that the investigation has reached a final conclusion
with no evidence of wrongdoing by her. The agency further asserts that
complainant's reassignment was made in good faith and in a timely manner.
According to the agency, its Division of Employee Relations worked as
quickly as it could to develop a substantial position description which
would sustain complainant's GS-14. With regard to attorney's fees,
the agency asserts that as a result of that part of the settlement
negotiations in which its counsel was allowed to participate subsequent
to February 26, 1998, it believed that the parties had agreed that the
$3,000.00 lump sum award was inclusive of attorney's fees. The agency
points out that its counsel was excluded from the final two telephone
conversations between complainant's counsel and the AJ. The agency
argues that complainant's counsel may have misconstrued its offer since
complainant did not accept the agency's offer until the latter two
telephone conversations and no one was allowed to represent the agency
at that point. The agency maintains that its letter dated February 26,
1998, was only a preliminary offer which would have to be incorporated
into an agreement. In support of this position, the agency notes that
its counsel specifically stated in that letter that the agency's offer
was contingent on a settlement which would include a provision that
complainant be reassigned.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
cited as 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 the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited
as 29 C.F.R. �1614.504(b)) provides that the agency shall resolve the
matter and respond to the complainant, in writing. If the agency has not
responded to the complainant, in writing, or if the complainant is not
satisfied with the agency's attempt to resolve the matter, the complainant
may appeal to the Commission for a determination as to whether the
agency has complied with the terms of the settlement agreement or action.
The complainant may file such an appeal 35 days after he or she has served
the agency with the allegations of noncompliance, but must file an appeal
within 30 days of his or her receipt of an agency's determination.
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 consistently held that settlement
agreements are contracts between complainant and the agency, and 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 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, 381 (5th Cir. 1984).
In the present case, the parties disagree as to whether attorney's fees
were to be a part of the resolution of complainant's case. The agency
contends that attorney's fees were specifically excluded and were not
severed; complainant's attorney argues that the issue was severed for
later determination. The Commission has previously held that a binding
settlement agreement requires a contemporaneous meeting of the minds.
Brown v. Department of Defense (DLA), EEOC Request No. 05940628 (November
3, 1994); Mullen v. Department of the Navy, EEOC Request No. 05890349
(May 18, 1989). Based on our review of this matter in its totality,
we find that there was no meeting of the minds. Complainant contends
that her case would not have been settled if the attorney's fees issue
had not been severed; however, the agency contends that the issue was
not severed. Clearly, a major issue remains in dispute and was not
addressed through the agreement at issue and, therefore, we find that
the settlement agreement is void.
This matter shall be remanded for reinstatement of the complaint from the
point at which processing ceased. In order to reinstate the complaint,
the parties must be returned to the status quo prior to the void
settlement agreement, i.e., all monies and benefits conferred pursuant
to the agreement must be returned.
ORDER
The agency is ORDERED to take the following actions:
Notify complainant that her complaint is being reinstated for further
processing from the point processing ceased, advising complainant that
in conjunction with the reinstatement of her complaint, the parties
must be returned to the status quo prior to the settlement at issue.
Towards that end, the agency should notify complainant that all monies and
benefits conferred pursuant to the agreement at issue must be returned.
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall submit a written request for a hearing to the
appropriate EEOC District Office.
A copy of the agency's notice to complainant and request to the District
Office should be provided to the Compliance Officer as referenced below.
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
February 11, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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
1 On 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.