05970925
08-02-2000
Jerauld C. Parks, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Jerauld C. Parks v. Department of the Army
05970925
08-02-00
.
Jerauld C. Parks,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Request No. 05970925
Appeal No. 01966293
Agency No. CATA: BXJC
DECISION
INTRODUCTION
On July 16, 1997, Jerauld C. Parks (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Jerauld C. Parks v. Togo D. West,
Jr., Secretary, Department of the Army, EEOC Appeal No. 01966293
(June 25, 1997). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous decision where the
party demonstrates that: (1) the previous decision involved a clearly
erroneous interpretation of material fact or law; or (2) the decision
will have a substantial impact on the policies, practices or operation
of the agency. 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.405(b)).<1>
ISSUE PRESENTED
The issue presented is whether the previous decision properly determined
the remedy for the agency's breach of the settlement agreement.
BACKGROUND
As set out in the previous decision, complainant and the agency entered
into a settlement agreement (SA) dated May 22, 1994, that provided at
Paragraph 3 that:
(a) the aggrieved's Official Personnel File [(OPF)] will include
appropriate documentation IAW Civilian Personnel Office guidelines to
show the 15 May 1993 to 6 December 1993 detail to the position of Family
Advocacy Program Director;
(b) the aggrieved will receive back wages for difference between a
GS-8/02 and a GS-9/01 from 15 May 1993 to 6 December 1993; and
(c) the 415th Base Support Battalion will submit documentation to the
appropriate offices within 30 days from the signing of this agreement
by both parties [June 6, 1994].
As of October 1995, complainant had not received any money or notice of
implementation, and he contacted the agency.<2> At that time, the agency
informed complainant that it was in compliance with portions of the SA
and promised to complete implementation.<3> By letter dated April 19,
1996, complainant notified the agency that it was in breach of the SA,
in that, he had not received payment or documentation. On June 17,
1996, the agency inquired whether complainant sought reinstatement of
his complaint or implementation of the SA; complainant stated that
he desired reinstatement of his complaint. Meanwhile, the agency
completed implementation of the SA in June 1996 and on July 31, 1996,
issued its final agency decision (FAD), finding that it had not breached
the settlement agreement. The agency stated that the paperwork for the
personnel actions had been misplaced and further delayed due to a major
reorganization, numerous activity consolidations, and other downsizing
activity in Europe.
On appeal, complainant sought reinstatement of his complaint. The
previous decision found that, while a breach of the SA had occurred, the
agency cured the breach since the required documentation had been placed
in complainant's OPF and he had been paid back wages. In affirming the
agency's FAD, the previous decision stated that, although complainant had
requested reinstatement of his complaint, because the SA had been fully
implemented, equitable considerations required denial of complainant's
request.
Complainant has filed a request for reconsideration, seeking reinstatement
of his complaint and arguing that he was harmed by the agency's delay
in implementation of the SA. Complainant also complains that he was
not awarded attorney's fees.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. �1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). An RTR is ot merely a form of a second appeal.
Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990).
Because the agency breached the SA, we find complainant is entitled to
an award of interest but not attorney's fees.
The Agency's Breach
The previous decision found that the agency had breached the SA,
and we agree with that finding for the reasons stated therein.
We do not concur, however, with its determination that the agency's
cure of the breach ended the matter. Upon a finding of breach, the
Commission's regulations provide that it may order specific performance or
reinstatement of the complaint from the point at which processing ceased.
29 C.F.R. �1614.504(c).
Absent specified time frames for performance, the Commission expects
that the terms of a settlement agreement will be implemented within a
reasonable period of time. See Gomez v. Department of the Treasury,
EEOC Request No. 05930921 (February 10, 1994). While the Commission has
not specified what is a reasonable time period, we have held that delays
in payment of funds owed to complainants of two and three years were not
reasonable and have ordered interest on the payments. April v. Department
of Agriculture, EEOC Appeal No. 01963775 (June 5, 1997); Cole v. USPS,
EEOC Petition No. 04950009 (February 19, 1997).
With regard to the instant matter, therefore, we find that the two-year
delay in payment of back pay was not reasonable and that complainant is
entitled to payment of interest. See April v. Department of Agriculture,
supra. The agency, in offering excuses that it lost complainant's papers
and that agency downsizing and reorganizations contributed further to the
delay, has not presented sufficient reason to avoid an interest add-on,
especially in light of its failure to quickly respond to complainant's
initial contact with the agency in October 1995.
Reinstatement of Complaint
Complainant also seeks reinstatement of his complaint. Where the
Commission determines that an agency has not complied with an
agreement, it has the authority to order such compliance or to order
that the complaint be reinstated for further processing. See 29
C.F.R. �1614.504(c). In situations such as the one before us where
much or all of the terms of an agreement have been implemented, the
Commission has found that specific performance was the appropriate remedy
rather than reinstatement of the complaint. Lanciotti v. Department of
Navy, EEOC Request No. 05931156 (September 23, 1994), citing, Rawlings
v. Department of Justice, EEOC Request No. 05910554 (August 29, 1992).
Based on the facts of this matter, we find that reinstatement of
complainant's complaint is neither appropriate nor warranted.
Attorney's Fees
Attorney's fees may be awarded for a finding of discrimination and for
enforcement of a valid settlement agreement where complainant is the
prevailing party. 64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R.�1614.501(e)). Although complainant
did not receive the specific relief he sought, i.e., reinstatement of
his complaint, by his actions herein, he has obtained further redress
from the agency. Brooks v. Social Security Administration, EEOC Request
No. 05970229 (October 8, 1998). For this reason, he is entitled to an
award of reasonable attorney's fees for the costs incurred in enforcing
the SA.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. �1614.405(b).
It is therefore the decision of the Commission to grant the complainant's
request. Upon reconsideration, the decision in EEOC Appeal No. 01966293
(June 25, 1997) is MODIFIED. There is no further right of administrative
appeal on a decision of the Commission on a Request for Reconsideration.
The agency is directed to comply with the Order, below.
ORDER
The agency is ORDERED to take the following remedial action:
A. Within sixty (60) days of receipt of this decision, the agency is
ORDERED to provide complainant an interest payment for the delay in
payment of back pay.
B. 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 verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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, Acting Director
Office of Federal Operations
__08-02-00________________
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.
2It appears from the record that complainant is located in Germany while
other agency offices were situated elsewhere. We note that complainant
employed an attorney resident in South Carolina.
3The agency notes that complainant did not appeal its determination of
compliance; however, there is nothing in the record to indicate that the
agency issued a final decision, that it notified complainant of a right
to appeal, or that complainant was making more than a simple inquiry.