01976972_r
01-07-1999
Johnnie E. Jowers, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Johnnie E. Jowers, )
Appellant, )
) Appeal No. 01976972
v. ) Agency No. 94-63165-001
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
On September 23, 1997, appellant filed this appeal with the Commission
alleging that the agency breached a settlement agreement when it failed
to pay attorney's fees in a timely manner, thereby entitling him to
interest and additional fees.
EEOC Regulation 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. That section further provides that if the
complainant believes that the agency has failed to comply with the terms
of a settlement agreement, the complainant shall notify the Director
of Equal Employment Opportunity of the alleged noncompliance with the
settlement agreement. 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 under the terms of the settlement agreement.
EEOC Regulation 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 final decision. 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 receipt of an
agency's determination.<1>
Contained in the record is a settlement agreement, which was fully
executed on May 24, 1996. The settlement agreement provided in pertinent
part that the agency would pay appellant's attorney a lump sum payment
of $500.
On appeal, appellant, through counsel, asserts that on January 10,
1997, he wrote to the head of the agency's Labor Relations Department to
inform him of the numerous prior contacts he had made with the agency
to obtain payment of his fees pursuant to the settlement agreement.
Appellant states that the agency did not pay the $500 until September
12, 1997. Appellant further asserts that because he expended many
hours to get the agency to pay his attorney's fees, he is entitled to
an additional fee in the amount of $500 with interest thereon.
In response to the appeal, the agency contends only that it was in
compliance with the settlement agreement and submits documentation to
support this contention. Included in the documentation is a funding
document, which indicates that on January 8, 1998, a payment of $1,000
was made to appellant's attorney.
Upon review, we find that the agency was initially in breach of the
attorney's fee provision in the settlement agreement but that the agency
cured the breach by paying the attorney's fee on September 12, 1997.
We find further, however, that because the agency delayed payment of
the attorney's fee for over a year, appellant is entitled to interest on
the delayed payment. The Commission has held that a payment of interest
on an award of attorney's fees is appropriate in order to compensate an
attorney for the delay in payment. See Chan v. Department of the Navy,
EEOC Appeal No. 01953004 (August 21, 1997); Swailes v. Department of
the Army, EEOC Appeal No. 01963436 (May 30, 1997); Cole v. U.S. Postal
Service, EEOC Petition 04950009 (February 19, 1997).
Although we find that appellant is entitled to interest, it is not
entirely clear from the funding document submitted by the agency on
appeal whether interest was already paid to appellant. The Commission
notes that the funding document indicates that the agency approved a
$1,000 payment to appellant's attorney in January 1998, which may have
been in satisfaction of appellant's request for interest and additional
attorney's fees. The document discloses that the payment of $1,000 was
for interest on $500 for the period from May 24, 1996 to September 12,
1997; a payment of $500 plus interest from August 21, 1996 to present;
plus another $500 payment with no interest. If in fact two $500 payments
were made, it appears as though interest was not included since the
total amount of the funding document is $1,000. It is also unclear if
the two $500 payments were for additional attorney's fees. Furthermore,
we cannot determine the appropriate amount of additional attorney's fees
because appellant has not provided any supporting documentation for his
fee request of $500 and this request may already have been satisfied by
the agency.<2> Finally, we note that the record also does not reveal
whether the payment of $1,000 was in fact made. Accordingly, this case
must be remanded to the agency for a supplemental investigation.
ORDER
The agency is ORDERED to conduct a supplemental investigation on the
payment of interest and additional attorney's fees paid to appellant.
Specifically, the agency shall supplement the record with evidence as to
the amount of fees and interest paid to appellant if any, the dates of
such payments, and the calculations used to determine the amount paid,
if any. The supplemental investigation shall be completed within 30
(thirty) calendar days of the date this decision becomes final.
Thereafter, the agency shall issue appellant a determination regarding
the issue of attorney's fees and interest, including appeal rights to
the Commission therein. A copy of the determination must be submitted
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. �1614.604(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 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 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 (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:
Jan. 7, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The Commission notes that there is no indication that the agency ever
issued a decision with appeal rights to appellant stemming from the
breach allegations pursuant to �1614.501(b).
2The attorney requesting a fee award has the burden of proving, by
specific evidence, his or her entitlement to the requested amount of
attorney's fees and costs in the matter. Copeland v. Marshall, 641 F.2d
880, 892 (D.C. Cir. 1983).