James H. Low, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01991961 (E.E.O.C. Feb. 15, 2000)

01991961

02-15-2000

James H. Low, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


James H. Low, )

Complainant, )

)

v. ) Appeal No. 01991961

) Agency No. 96-62661-001

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

________________________________)

DECISION

Complainant filed the instant appeal apparently from both of the agency's

November 20, 1998 decisions finding that the agency was not, at that

time, in breach of the settlement agreement entered into by the parties

on December 13, 1996.<1>

The settlement agreement provided in relevant part:

The parties agree that the terms of this settlement agreement . . . will

be kept confidential . . . Allegations that the confidentiality clause

has been breached will be brought before an independent Arbitrator,

selected from the American Arbitrators Association, who is empowered

to fashion a remedy, including rendering this agreement null and void,

upon a finding of breach. . . .

. . . .

. . . the Agency agrees to:

A. Restoration of Leave. All officially documented leave used due to job

related stress as documented by the Department of the Navy payroll office,

which is not covered by Complainant's Worker's Compensation complaint,

will be restored by the Agency. Furthermore, the Agency will "buy back"

the remaining twenty-five (25%) still outstanding under Complainant's

Worker's Compensation claim, file number 01-0329832, CA-7, of which

the Department of the Labor will restore $32,788.19, consistent with

applicable rules and regulations.

. . . .

Reasonable & Customary Attorney's Fees. The Agency agrees to pay

twenty-two thousand and five-hundred ($22,500.00) dollars in legal fees

and two-thousand five-hundred ($2,500.00) dollars in expenses related

to this complaint to Thomas McAndrew, Esq. The Agency believes this

sum satisfies reimbursement of all outstanding, authorized, reasonable

and customary legal fees connected with any and all matters covered

under this agreement. Mr. McAndrew disagrees. . . .

Both parties agree, however, that Thomas McAndrew, Esq. 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. . . .

The Commission previously found that the agency breached the December 13,

1996 settlement agreement. Low v. Department of the Navy, EEOC Appeal

Nos. 01973387 and 01982661 (Oct. 23, 1998). The Commission ordered the

agency to take various actions including:

Issue [complainant] 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;

Restore to [complainant] 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);

. . . .

provide [complainant] with an award of reasonable attorney's fees and

costs for the successful processing of these appeals pursuant to . . . 29

C.F.R. � 1614.501(e).

Low, EEOC Appeal Nos. 01973387 and 01982661.

The agency subsequently issued a decision dated November 20, 1998

detailing its compliance with the settlement agreement. The agency

issued another decision dated November 20, 1998 detailing its compliance

with the attorney's fees and costs issue. Regarding provision 12(A)

the agency found: "In order to effectuate this provision, you must

submit your worker's compensation application for reinstatement of

leave or . . directly restore your leave so that this provision can

be satisfied . . ." Regarding attorney's fees and costs the agency

approved $90,000.00 in attorney's fees, $300.25 in costs, and $3,732.50

"to process counsel's appeal."

Complainant filed the instant appeal on December 30, 1998. Complainant

argues in the instant appeal that: (1) the agency breached provision

12(A) of the agreement by failing to restore the leave complainant is

entitled to under the agreement; (2) complainant is entitled to various

damages (e.g., punitive damages) for not complying with the settlement

agreement; (3) the agency should pay complainant for time complainant

spent defending himself in the instant matter; (4) the agency should

pay fees for complainant's representative, Jack Beliveau, for his time

and costs to prepare responses to the EEOC and to the agency; and (5)

the agency should pay legal fees to Thomas McAndrew as a result of the

agency filing charges against complainant before the American Arbitration

Association.

By letter dated March 26, 1999 the agency informed the Commission that

it had complied with the actions required by the Commission in Low, EEOC

Appeal Nos. 01973387 and 01982661. The Commission deems the March 26,

1999 letter to constitute an agency decision finding that the agency is

now in compliance with the December 13, 1996 settlement agreement.

By letter dated March 23, 1999 the agency found that it had complied with

provision 12(A) by restoring, on February 25, 1999 1,200 hours of leave

for job-related stress as documented by the payroll office and which was

not covered by complainant's workers' compensation complaint. The agency

also found that the agency agreed to reinstate the leave covered by

restoration of leave under complainant's workers' compensation claim

without requiring payment of the 25% of pay that workers' compensation

does not cover. The agency further stated:

It is the Agency's understanding that [complainant] has submitted the

necessary documentation to effect the restoration of leave covered by

his worker's compensation claim, and that the Department of Labor is

processing [complainant's] request.

In the March 23, 1999 letter the agency found that attorney's fees and

costs attributable to the arbitration process are not recoverable.

The agency also found that complainant's requests for complainant's

fees and costs and Jack Beliveau's fees and costs can not be recovered

because neither person is an attorney. The agency also rejected all of

complainant's other claims for damages.

Complainant has not submitted a response to the Commission or the

agency in the instant record concerning the agency's March 23 or 26,

1999 letters.

The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be

codified as and hereinafter cited as 29 C.F.R. � 1614.504(a)) provides

that any settlement agreement knowingly and voluntarily agreed to by the

parties shall be binding on both parties. If the complainant believes

that the agency has failed to comply with the terms of a settlement

agreement, then the complainant shall notify the EEO Director of the

alleged noncompliance "within 30 days of when the complainant knew or

should have known of the alleged noncompliance." 29 C.F.R. � 1614.504(a).

The complainant may request that the terms of the settlement agreement

be specifically implemented or request that the complaint be reinstated

for further processing from the point processing ceased. Id.

Settlement agreements are contracts between the appellant and the agency

and it is the intent of the parties as expressed in the contract, and not

some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th

Cir. 1938). In reviewing settlement agreements to determine if there is

a breach, the Commission is often required to ascertain the intent of the

parties and will generally rely on the plain meaning rule. Wong v. United

States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing

Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,

1991)). This rule states that if the writing appears to be plain and

unambiguous on its face, then its meaning must be determined from the

four corners of the instrument without any resort to extrinsic evidence

of any nature. Id. (citing Montgomery Elevator v. Building Engineering

Service, 730 F.2d 377 (5th Cir. 1984)).

Provision 12(A)

Complainant appears to only be challenging the restoration of leave

portion of this provision (and not the "buy back" portion). By letter

dated February 12, 1999 the agency informed complainant that he was

entitled to restoration of 1,200 hours of leave. The agency provided

complainant with an explanation of how the leave was calculated.

By letter dated March 11, 1999 the agency informed complainant that on

February 25, 1999 the agency restored 1,200 hours of leave to complainant

under the agreement and "bought" the remaining 25% under complainant's

workers' compensation claim.

The Commission finds that complainant has not shown on appeal how the

amount of restored leave as described in the agency's March 23, 1999

letter was insufficient. Specifically, complainant has not shown that

the agency failed to restore any leave which was due to job related

stress "as documented by the Department of the Navy payroll office."

Therefore, we find that complainant has failed to show that the agency

is now in breach of provision 12(A) of the settlement agreement.

Fees and Costs for Complainant and Jack Beliveau

EEOC Regulation 29 C.F.R. � 1614.501(e)(1)(iii) provides:

Attorney's fees are allowable only for the services of members of the

Bar and law clerks, paralegals or law students under the supervision of

members of the Bar, except that no award is allowable for the services

of any employee of the Federal Government.

There is no claim by complainant or indication in the record that either

complainant or Jack Beliveau maintain a status which would allow recovery

of attorney's fees for their services. Therefore, the agency properly

did not reimburse complainant and Jack Beliveau for attorney's fees

and costs.

Attorney's fees for Thomas McAndrew's Services

By letter dated February 28, 1999, after the initial appeal was filed,

complainant informed the agency (emphasis original):

My requested resolution . . . does not include a detail of fees for

Mr. Thomas J. McAndrew, the attorney who represented me before the EEOC

Administrative Judge . . . for the original case and before the American

Arbitration Association (AAA). . . .

Mr. Thomas J. McAndrew has not been my representative since August 1998.

He did not participate in the formulation or perfecting of my current

non-compliance complaint and is not authorized to negotiate or settle

this claim that the agency has assigned to you to resolve.

The Commission finds that complainant has withdrawn in the instant

appeal any request for attorney's fees and costs for services provided

by Thomas McAndrew. Therefore, we need not consider whether the agency

properly denied attorney's fees and costs in connection with services

provided by Thomas McAndrew for representation of complainant before

the American Arbitration Association.

Other Damages

Complainant's request for other damages, such as punitive damages, are not

awardable under the instant settlement agreement because complainant has

not shown that the agency is now in breach of the agreement and because

such damages are not awarded in the agreement.

The Commission finds that complainant has failed to show that the agency

is now in breach of the December 13, 1996 agreement or that complainant

is entitled to any more monies or damages from the agency arising from

a breach of the December 13, 1996 agreement.

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 (S1199)

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 (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 15, 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

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.