01982661
10-23-1998
James H. Low, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
James H. Low v. Department of the Navy
01982661
October 23, 1998
James H. Low, )
Appellant, )
)
)
v. ) Appeal Nos. 01973387,
) 01982661
) Agency No. 96-62661-001
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
___________________________________)
DECISION
INTRODUCTION
James H. Low (appellant), by and through his attorney, initiated
several appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) alleging the Department of the Navy (agency) had violated
the provisions of a written agreement which had settled his complaints
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> The
Commission hereby accepts these appeals in accordance with EEOC Order
No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement entered into by the parties.
BACKGROUND
The record establishes that this matter arose when appellant (Caucasian
male) filed a number of EEO complaints with the agency alleging his
female supervisor had engaged in an ongoing pattern of discrimination
against him. Appellant was represented in these matters by an attorney.
The attorney has asserted that he commenced work on appellant's
case on October 17, 1995. Shortly thereafter, the attorney started
an investigation, including discovery, into appellant's claim, and
presented the agency with a written settlement proposal in May 1996.
At that time, the agency did not reply or counteroffer.
Thereafter, appellant requested a hearing on his complaints, and his
attorney continued to engage in discovery and hearing preparation.
It appears that several disputes occurred during this period with the
agency concerning appellant's requests for official time to prepare for
the hearing. The hearing was held on August 15 and 16, and September
4, 5 and 6, 1996, before an EEOC administrative judge (AJ), and was
scheduled to recommence on December 11, 1996. During the break in
the hearing, the parties entered into settlement negotiations, meeting
both in person and over the telephone. It appears that an agreement
was tentatively reached on November 4, 1996, pending documentation of
appellant's attorney's claim for reasonable attorney's fees.
Shortly thereafter, counsel submitted to the agency a detailed billing
statement of his work on the case through November 4, 1996, in the amount
of $104,487.25. Upon receipt of this statement, on November 21, 1996,
the agency issued a "final offer", which appellant asserts differed
materially from the previously negotiated agreement, especially with
regard to the provision of attorney's fees. At this point, it appears
that settlement negotiations broke down and the parties continued
to prepare for the continuation of the hearing, which recommenced on
December 11, 1996.
However, on December 12, 1996, settlement discussions started again,
and on December 13, 1996, the parties executed a written settlement
agreement. The agreement provided, in pertinent part, that, in exchange
for withdrawing his complaints, the agency agreed to: (A) restore all
officially documented leave used due to job-related stress which had
not been reimbursed by workers' compensation, as well as "buy back"
certain leave outstanding in appellant's workers' compensation claim;
(B) reimburse appellant for $600 of out-of-pocket medical expenses;
(C) reimburse appellant for the five and ten-day suspensions; (D)
expunge the five and ten-day suspensions from appellant's personnel
records; (E) raise appellant's performance rating to an "Outstanding"
and give him a $500 award with interest; (F) restore appellant to a
GS-12 position with a new position description; (G) grant appellant
long-term, work-related training opportunities (paid for by the agency up
to $10,000) from January 1, 1997 through December 31, 1997, with the first
six months devoted solely to training, rather than work, responsibilities;
(H) reimburse appellant for the professional fees incurred for an expert
witness in an amount not to exceed $1,850; (I) pay appellant $25,000
in compensatory damages; and (J) pay appellant's counsel $25,000 in fees
and costs for his representation of appellant in this matter.
EEOC Appeal No. 01973387
In addition to the provision for payment of $25,000 in attorney's fees
and costs, the settlement agreement between appellant and the agency
provided that counsel:
. . . may submit his legal fee billing statement to the Department of
the Navy for a decision as to whether his claimed attorney's fees are
reasonable and customary under the applicable rules, regulations and
case law.
. . . Moreover, [counsel] may then exercise his right to appeal the
Department of the Navy's decision to the EEOC.
On January 10, 1997, counsel, pursuant to the above-described provision
of the settlement agreement, submitted to the agency an application for
attorney's fees and costs in the amount of $132,402.75. In support of
his application, counsel presented an affidavit and verified statement
of the fees and costs (including a 22-page itemization of the services
provided), as well as the affidavit of another attorney who assisted
in the preparation of the application. The record on appeal does not
contain this application, including the billing statement. Therefore,
while the record does reflect that counsel was requesting an hourly
rate of $225 for himself and $60 per hour for his paralegal, there is no
record of the number of hours requested and what service were performed
during those hours.
The only response by the agency to this application for attorney's fees
and costs is a letter dated February 13, 1997, in which the agency's
representative stated:
. . . I have received your complete billing statement for the remaining
outstanding legal fees you believe you are entitled to be paid. I am
assuming that this is [for] my packet, for the settlement agreement
states that you will appeal the Agency's decision regarding your legal
fees to the EEOC.
The agency never issued a further decision ruling on counsel's entitlement
to attorney's fees and costs beyond the $25,000 provided for in the
settlement agreement. On March 6, 1998, the agency issued appellant
a check for $25,000 for his attorney's fees and costs. In EEOC Appeal
No. 01973387, appellant asserts that the agency violated the terms of
the settlement agreement by failing to make a decision on counsel's
application for additional attorney's fees and costs in accordance with
applicable rules, regulations and case law.
EEOC Appeal No. 01982661
In EEOC Appeal No. 01982661, appellant claimed the agency was further
violating the terms of the settlement agreement by failing to implement
any of its terms. The agency responded to this appeal with a motion to
dismiss on the grounds that the matter was pending before an arbitrator.
As background, the record indicates that the settlement agreement
expressly provided that the parties would keep its terms confidential,
except as necessary to ensure implementation or as required by law.
The agreement stated that allegations that the confidentiality clause
had been breached would be brought before an independent arbitrator
selected from the American Arbitration Association, to fashion a
appropriate remedy, including the voiding of the agreement. In late
January 1997, the agency took the position that appellant had breached the
confidentiality clause and ceased its implementation of all provisions of
the settlement agreement until the matter could be heard by an arbitrator.
By letter dated February 27, 1997, appellant notified the agency that he
considered them in breach of the settlement agreement. In April 1997,
the agency responded by filing a complaint with the American Arbitration
Association asserting the agreement should be voided because appellant
had allegedly breached the confidentiality clause.
During the processing of this appeal, the Commission received notice
that, on December 22, 1997, the agency voluntarily withdrew its
pending arbitration complaint, and committed itself to implementing
all outstanding terms of the settlement agreement within ninety days.
In a letter dated April 1, 1998, appellant informed the Commission that
the agency was in partial compliance with the terms of the settlement
agreement. The parties now appear to agree that by March 1998, the
agency had issued appellant a check for $28,050.53, which represented
payment for $25,000 in compensatory damages, $600 in medical costs,
a $500 performance award with an additional $100.53 in interest, and
$1,850 in payment for appellant's expert witness. As already noted,
the agency also issued appellant a second check at the same time in the
amount of $25,000 for his attorney's fees and costs. In addition, the
parties agree that the agency rescinded the suspensions and expunged them
from appellant's record, changed appellant's performance rating to an
"Outstanding", and relieved him of his work responsibilities for eight
months to pursue training opportunities.
However, appellant continues to contend that the agency has failed to
implement other terms of the settlement agreement. First, with regard to
the training, appellant asserts the agency failed to approve all but one
of his training courses for payment, despite setting aside $10,000 for his
training, and has not yet paid the $900 fee for the one approved course.
Second, appellant claims the agency has not yet properly restored his
leave used due to job-related stress, including implementation of the
"buy back" provision. Third, appellant states he has not received
any backpay as result of the cancellation of his transfer to a GS-9
position and his restoration to the GS-12 level. Finally, appellant
asserts that agency has not paid his full attorney's fees and costs in
the amount of $132,402.75. On appeal, appellant has requested that the
Commission order the agency to immediately comply with all terms of the
settlement agreement. Beyond filing its motion to dismiss, the agency
has not responded to appellant's appeal.
ANALYSIS AND FINDINGS
EEOC regulation 29 C.F.R. � 1614.504(a) provides that any settlement
knowingly and voluntarily agreed to by the agency and an EEO complainant
shall be binding on both parties. The Commission has jurisdiction to
adjudicate allegations by the complainant that the agency has failed
to comply with such a settlement agreement. 29 C.F.R. �1614.504(b).
EEOC regulations clearly permit a complainant to file an appeal with
the Commission 35 days after he or she has served the agency with
allegations of noncompliance, even if the agency has not yet rendered a
final decision on those allegations. 29 C.F.R. �1614.504(b). The appeals
in the instant matter comply with this regulation.<2>
In interpreting settlement agreements, the Commission has applied the
contract principle known as the "plain meaning rule", which holds that
where a writing is unambiguous on its face, its meaning is determined
from the four corners of the instrument without resort to extrinsic
evidence. Smith v. Defense Logistics Agency, EEOC Appeal No. 01913570
(December 2, 1991); see also Montgomery Elevator Co. v. Building
Engineering Service, 730 F.2d 377 (5th Cir. 1984).
Attorney's Fees - EEOC Appeal No. 01973387
The settlement agreement's provisions for payment of appellant's
attorney's fees and costs are clear. The agreement provided that the
agency would pay $22,500 in attorney's fees (100 hours x $225/hour)
and $2,500 in costs. As of March 1998, the agency was in compliance
with this provision. However, the agreement went on to provide that
appellant's counsel could submit an application to the agency for any
fees incurred above the $25,000. That application was to be processed
by the agency pursuant to applicable rules, regulations and case law
governing attorney's fee claims. The agreement further provided a right
of appeal to this Commission.
The record is clear that appellant's counsel filed a timely application
for additional attorney's fees. It is also clear that the agency never
processed that application or rendered a decision on the reasonableness of
it as required by the settlement agreement. The Commission's regulations
at 29 C.F.R. �1614.501(e)(2)(ii)(A) require the agency to issue a
decision determining the amount of attorney's fees within 30 days of
receipt of a verified statement from counsel of the requested fees.
The agency has conceded that it received the fee application, but
declined to determine what amount, if any, should be paid to counsel.
The agency has provided no explanation in the record for its failure
to comply with the terms of the settlement agreement which required it
to issue a decision on counsel's claim for additional fees. Therefore,
the Commission finds the agency in noncompliance with the terms of the
settlement agreement, and will order the agency to immediately issue
any additional payment to appellant for attorney's fee and costs to be
determined by multiplying the number of hours reasonably expended on
these matters by a reasonable hourly rate. See Hensley v. Eckerhart,
461 U.S. 424 (1983); 29 C.F.R. �1614.501(e).
Other Terms of the Settlement Agreement - EEOC Appeal No. 01982661
The record also contains no evidence that the agency has, as required by
the terms of the settlement agreement, restored to appellant the leave
he used "due to job related stress as documented by the Department of the
Navy payroll office, which is not covered by [his] Worker's Compensation
complaint." There also is no record that appellant has received a backpay
award for any salary reduction that occurred prior to the restoration
of his GS-12 grade level or for any loss of pay resulting from the five
and ten-day suspensions which were revoked. Finally, appellant has not
been reimbursed for $900 spent on training pre-approved by the agency
pursuant to the settlement agreement. In addition, appellant asserts
the agency refused to approve other training courses despite language in
the settlement agreement which set aside $10,000 to pay for appellant's
participation in "work-related education and/or training programs."
The agency has offered no explanation for its failure to comply with
these terms of the settlement agreement. Therefore, the Commission
finds the agency in breach of that agreement and will order the agency
to immediately comply with all outstanding obligations.
CONCLUSION
Accordingly, after careful review of the record and for the reasons stated
above, the Commission has determined that the agency has breached the
December 13, 1996 settlement agreement between the parties. To correct
this breach, the agency shall immediately comply with the terms of that
agreement in accordance with the following Order.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall:
(1) issue appellant a final agency decision and appropriate payment
on his claim for attorney's fees and costs above the $25,000 already
provided by the agency based on the information submitted in January
1997 in counsel's fee application;
(2) restore to appellant all officially documented leave he used due to
job-related stress as documented by the Department of the Navy payroll
office, which was not covered by his workers' compensation complaint,
and "buy back" the remaining 25% still outstanding under his workers'
compensation claim (#01-0329832, CA-7);
(3) issue appellant a check representing backpay, plus interest, for
any salary reduction that occurred prior to the restoration of his
GS-12 grade level or for any loss of pay resulting from the five and
ten-day suspensions which were revoked;
(4) issue a final agency decision explaining in detail the calculations
made to implement paragraphs (2) and (3) of this Order;
(5) issue appellant a check for $900, plus interest, as reimbursement
for the cost of training pre-approved by the agency;
(6) provide appellant the opportunity to seek reimbursement (up to
$9,100) for any other work-related education and/or training programs
he participated in during the eight-month period he was on long-term
training status, and provide appellant with a written justification
for any denial of reimbursement; and
(7) provide appellant with an award of reasonable attorney's fees
and costs for the successful processing of these appeals pursuant to,
and within the timeframes detailed in, 29 C.F.R. �1614.501(e).
A copy of all documentation effectuating this Order, as well as any
final decisions or written explanations provided pursuant to this Order,
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
Oct 23, 1998
__________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 These appeals have been docketed as EEOC Appeal Nos. 01973387 and
01982661. For clarity, the Commission has decided to consolidate the two
appeals for a single decision because they both raise claims that the
agency violated the provisions of the same settlement agreement.
2 The Commission notes that the agency's motion to dismiss
appellant's appeals has been mooted by the agency's December 1997
withdrawal of its arbitration complaint. Therefore, there is no longer
any need to rule on this motion.