Marvin E. Ellis, Complainant,v.Richard W. Riley, Secretary, Department of Education, Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01986320 (E.E.O.C. Feb. 1, 2000)

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.