01986320
02-01-2000
Marvin E. Ellis, Complainant, v. Richard W. Riley, Secretary, Department of Education, Agency.
Marvin E. Ellis v. Department of Education
01986320
February 1, 2000
Marvin E. Ellis, )
Complainant, )
)
v. ) Appeal No. 01986320
) Agency No. ED- 92-35000
Richard W. Riley, )
Secretary, )
Department of Education, )
Agency. )
__________________________________)
DECISION
Complainant filed the instant appeal in August 1998 claiming that the
agency breached the settlement agreement entered into by the parties on
May 23, 1997. Complainant had notified the agency by, at the latest,
July 20, 1998, that the agency breached the agreement. On appeal the
agency argues that it has complied with the agreement. Therefore,
we find that the breach claim is now ripe for disposition.
The EEOC Administrative Judge defined the complaint at issue in this
decision as alleging:
Complainant was not reasonably accommodated due to his disabilities (sleep
apnea and depression) and due to retaliation in his Equal Opportunity
Specialist (EOS) position he was assigned in September 1991.
Complainant was discriminated against on the basis of disability when
he was reassigned from a Program Analyst position to an EOS position in
September 1991.<1>
Complainant was not reasonably accommodated in the Program Analyst
position and subjective standards were applied in rating his performance
in order to hinder his advancement to higher-graded positions.
The May 23, 1997 settlement agreement of the complaint provided that:
The Agency agrees to pay to the Complainant's attorney . . . reasonable
attorney's fees and costs, up to a maximum of $30,000 . . .
The Agency shall restore any amount or type of leave to the Complainant
that reasonably might have been or was used for matters related to
the allegations in this complaint or a reasonable amount of time for
which administrative leave could have been granted for preparation or
presentation of the complaint. The restoration of leave shall be based
on documentation to be provided by the complainant within 30 days from
the date of execution of this Agreement.
The Agency agrees to reimburse Complainant for out-of-pocket medical
expenses reasonably related to the allegations in this complaint, to a
maximum of $15,000, that were incurred from April 1992 through May 1997,
including, but not limited to, expert medical witness fees, office visits,
and medication. Payment shall be based on documentation to be provided
by the Complainant within 30 days from the date of execution of this
Agreement that such medical expenses were reasonably related to the
allegations in this complaint. . . . The Agency agrees to make every
reasonable effort to make payment of the substantiated amount within 60
calendar days of receipt of the documentation from the Complainant.
The Agency agrees to continue the elimination of overnight travel
from the Complainant's job requirements, as stated in the April 7,
1997, memorandum to the Complainant from the Complainant's current
supervisor, and agrees that this will have no negative implication for
the Complainant's performance rating.
The Agency agrees to pay Complainant lump sum compensatory damages
(for his pain and suffering) in the amount of $50,000. . . .
The agency agrees to post . . . a notice regarding the Agency's duty to
make reasonable accommodation to the known disabilities of its employees
. . .
The agency argues on appeal that it has complied with the settlement
agreement.
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)).
General Matters
Complainant argues that the amount of leave and monies provided to
him through the settlement agreement are insufficient because such
a remedy does not constitute full or make whole relief. Complainant
is not entitled to make whole relief under the settlement agreement.
Only the terms of the settlement agreement will be enforced. There is no
finding of discrimination that is being remedied in the instant matter.
The relief to be granted complainant must be stated in the terms of the
agreement. As long as there is some valid consideration (which there
is in the instant matter), then it is irrelevant whether the relief in
the settlement agreement is less or more than make whole relief.
The Commission finds that the agency did not violate any time frames in
the implementation in the agreement. There is much correspondence between
the agency and complainant in which the agency is constantly seeking
clarification of the leave and medical expenses sought by complainant.
The agency is often seeking more documentation in such correspondence.
The agency's responses were always done expeditiously, especially
considering the complexity of the matter (e.g., there are many dates
where leave is an issue).
The Commission also finds that the record shows that the agency has
acted in good faith in implementing the instant settlement agreement.
On appeal complainant argues that the agency breached provisions 3, 4,
and 5 of the agreement.
Provision 3
The agency states on appeal that it restored to complainant 6 hours of
annual leave for medical appointments and 15.5 hours of sick leave for
medical appointments. The agency also states that it restored 51.5 hours
of annual leave for pro se representational time. Complainant does
not dispute being restored such leave. The Commission agrees with the
agency that complainant has failed to show with clear documentation that
he is due any more reimbursement for leave that reasonably might have
been or was used for matters related to the claims in the complaint.
Complainant is not due restoration of leave simply because he claims
some leave is related to the claims in his complaint. Regarding the
leave restored for time spent by complainant preparing or presenting his
complaint, the Commission finds 51.5 hours reasonable in the instant
matter. Complainant is not entitled by the settlement agreement to
all leave he may have taken for preparing or presenting his complaint;
rather, complainant is entitled to what administrative leave "could have"
been granted. Only a reasonable amount of official time could have
been granted. Complainant has not shown that more than 51.5 hours of
leave was reasonable. Therefore, the Commission finds that complainant
has failed to show that the agency did not comply with provision 3 of
the settlement agreement.
Provision 4
The agency states that it reimbursed complainant $2,281.00 for medical
costs. Complainant does not dispute receiving this reimbursement.
Although complainant argues that he is due more reimbursement (apparently
even more than the $15,000 maximum in the agreement), the Commission
finds that complainant did not submit to the agency, despite the agency's
repeated requests, sufficient documentation to substantiate his claim for
more reimbursement. Therefore, the Commission finds that complainant
has failed to show that the agency did not comply with provision 4 of
the settlement agreement.
Provision 5
The agency argues that this issue is premature because complainant did not
raise the issue with the EEO Director. The Commission need not decide
whether the issue is premature, because it is clear from the record
that complainant has failed to show that he has been required to go on
overnight travel or that this situation had a negative implication for
his performance rating. The agency has submitted evidence showing that
complainant has not been required to go on overnight travel. Therefore,
the Commission finds that complainant has failed to show that the agency
did not comply with provision 5 of the settlement agreement.
Subsequent Acts
Complainant, on appeal, claims that the agency is continuing to
discriminate against him. The Commission finds that these claims could
be characterized, at least in part, as claims that subsequent acts of
discrimination violated the settlement agreement. The regulation set
forth at 64 Fed. Reg at 37,660 (to be codified as and hereinafter cited
as 29 C.F.R. � 1614.504(c)) provides that claims that subsequent acts
of discrimination violate a settlement agreement shall be processed as
separate complaints under the regulation set forth at 64 Fed. Reg. at
37656 (to be codified as and hereinafter cited as � 1614.106) rather
than as breach allegations. If complainant wishes to pursue such a
discrimination claim, then he should contact an EEO Counselor if he has
not done so already.
The agency's determination finding that complainant failed to show that
the agency breached the settlement agreement is AFFIRMED.
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 1, 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 Equal Employment Assistant
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.