Michael Brionez, et al., Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture,) Agency.

Equal Employment Opportunity CommissionOct 14, 1999
05960492 (E.E.O.C. Oct. 14, 1999)

05960492

10-14-1999

Michael Brionez, et al., Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture,) Agency.


Michael Brionez, et al. v. Department of Agriculture

05960492

October 14, 1999

Michael Brionez, et al., )

Appellant, )

)

v. ) Request No. 05960492

) Appeal No. 01944100

Daniel R. Glickman, ) Agency No. 93-95-26

Secretary, )

Department of Agriculture,)

Agency. )

)

GRANT OF REQUEST FOR RECONSIDERATION

On May 2, 1996, the Department of Agriculture (agency) timely initiated

a request to the Equal Employment Opportunity Commission (EEOC or

Commission) to reconsider the decision in Michael Brionez, et al.,

v. Department of Agriculture, EEOC Appeal No. 01944100 (April 2, 1996).

On May 3, 1996, Michael Brionez (appellant), acting as class agent, timely

initiated a cross-request for reconsideration. EEOC regulations provide

that the Commissioners may, in their discretion, reconsider any previous

Commission decision. 29 C.F.R. �1614.407(a). The party requesting

reconsideration must submit written argument or evidence which tends to

establish one or more of the following three criteria: new and material

evidence is available that was not readily available when the previous

decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision

involved an erroneous interpretation of law, regulation, or material fact,

or misapplication of established policy, 29 C.F.R. �1614.407(c)(2); or the

previous decision is of such exceptional nature as to have substantial

precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons

which follow, the parties' requests for reconsideration are GRANTED.

Procedural History

On December 16, 1988, appellant<1>, on behalf of himself and others

similarly situated, initiated an informal EEO complaint, putatively a

class action, regarding the agency's conduct toward Hispanic employees

and Hispanic applicants for employment in the agency's Forest Service,

Region V. On March 30, 1990, the parties entered into a settlement

agreement (SA) whereby, in return for withdrawal of the informal EEO

complaint, the agency agreed to undertake certain actions, falling

into seven categories: (1) Hispanic recruitment; (2) affirmative

action responsibilities; (3) application and hiring procedures; (4)

promotions, transfers, and selections; (5) retention/career development;

(6) training/career development; and (7) supervisor evaluations.

The SA was to be effective for a period of three years, with two automatic

extensions of one year each if the goals set forth in the agreement had

not been met. On May 18, 1993, appellant notified the agency that it

was in breach of the settlement agreement. On May 13, 1994, the agency

issued a final agency decision (FAD) finding no breach. Appellant timely

appealed to the Commission. The previous decision vacated the FAD and

remanded the case for reinstatement of the complaint. Brionez, supra,

EEOC Appeal No. 01944100. The previous decision found that, when the

parties entered into the SA, the agency knew that it would be downsizing,

and that downsizing efforts subsequent to execution of the SA rendered

the consideration received by appellant inadequate to the point that it

would be inequitable to enforce the settlement agreement.

Requests for Reconsideration

In its request to reopen, the agency argues that its workforce was

increasing at the time of the SA, and that subsequent decreases were

caused by two factors outside of its control: a United States District

Court decision in litigation involving the habitat of the Northern Spotted

Owl, and government-wide reductions in work-force size initiated by the

new administration in 1992. The agency noted that the SA contemplated,

on its face, the possibility and effects of downsizing. The agency

further argued that the SA encompassed matters beyond recruitment and

hiring, which provided sufficient consideration. Finally, the agency

noted that it had complied with the terms of the SA, and although the

SA had expired, continued some of the practices established by the SA.

The agency also noted that, because the putative class complaint had been

settled before a class was even certified, only the signatories to the SA

(four or five employees) actually were bound by it, leaving the agency

exposed to future complaints.

In his request to reopen, appellant objects to the previous decision

on two grounds: first, that the issue on appeal was "performance,

not formation" of the SA; and second, that even if appellant had not

received adequate consideration, the SA was not void, but merely voidable

at appellant's option. Appellant notes that he did not request that

the SA be voided and the complaint reinstated, but that the agency be

ordered to perform its obligations under the SA.

Having reviewed the record, including the parties' requests for

reconsideration and respective replies thereto, the Commission concludes

that the previous decision erred in vacating the SA and ordering the

complaint reinstated for lack of consideration. In any appeal alleging

breach of a settlement agreement, the Commission's initial inquiry is, of

necessity, whether there exists a valid settlement agreement to enforce.

See Jacobsohn v. Dept. of Health and Human Services (Social Security

Administration), EEOC Request No. 05930689 (June 2, 1994). But the

Commission generally does not concern itself with adequacy or fairness

of consideration, so long as some legal detriment is incurred as part

of the bargain. See Terracina v. Dept. of Health and Human Services,

EEOC Request No. 05910888 (March 11, 1992). Provided that the parties to

the agreement incur some legal detriment -- that is, commit themselves

to do something they were not already obligated to do -- the settlement

agreement will not be set aside for lack of consideration. See Morita

v. Dept. of the Air Force, EEOC Request No. 05960450 (December 12,

1997). Here, appellant agreed to withdraw the informal class complaint.

In return, the agency agreed, in addition to recruitment and hiring,

to undertake new obligations regarding career development, training,

promotion, transfer, selection, retention, and evaluation, thereby

incurring a legal detriment as part of the bargain Accordingly, is was

error for the previous decision to set aside the settlement agreement,

and the parties' requests for reconsideration therefore are GRANTED.

Breach of Settlement Allegations and Agency Responses

Appellant's allegations of breach, and the agency's response to each,

are set forth as follows:

Selection and Outreach [Items 6 and 23 of the SA]: Appellant alleged that

since the execution of the SA, the Hispanic workforce rate in Region

V has risen less than one percent, and that current hiring rates for

Hispanics are too low to achieve workforce parity. Appellant notes that

Region V's workforce is seven percent Hispanic, while the non-government

civilian workforce in California (within Region V) is 23.6 percent,

based on 1990 data (the year the SA was executed).

Agency response: The agency noted that it had engaged in recruitment

and retention efforts, and that the proportion of Hispanic employees in

Region V had risen from 6.2 to 7.0 percent during a period when the total

number of positions in Region V had decreased by 5 percent. The agency

noted that this matter had been investigated pursuant to the dispute

resolution provisions of the settlement agreement, and that appellant's

chosen investigator had determined that no discrimination had occurred.

The agency also noted that appellant appeared to rely on figures other

than those used by the investigator.

Reprisal [Item 7]: Appellant alleged that many Region V Hispanic employees

have experienced retaliation on account of their involvement in the SA.

Agency response: The agency stated that its supervisory training includes

instruction regarding prohibited personnel practices, including reprisal

for EEO activity. The agency noted that appellant had not provided

specific information regarding the alleged occurrences of reprisal.

The agency stated that individual complaints of reprisal are processed

in accordance with the applicable Federal regulations, and that remedies

are directed to individual complainants.

Hispanic Recruitment [Items 12, 13, 15, 16, and 21]: Appellant alleges

that, although all permanent employees are supposed to have access to the

Data General system (the principal means by which employees are informed

of career opportunities), Region V management does not afford employees

time to retrieve information, and some employees have no access at all.

Appellant further alleges that recruitment is insufficient to provide a

diverse certificate in proportion to under-representation data, and that

recruitment areas have not been properly defined. Appellant also alleges

that workload analyses have not been conducted in individual forests,

and that time allotted for recruitment activities must be increased.

Appellant inquired what actions would be taken pursuant to a review of

the recruitment program which revealed "a lack of progress."

Agency response: The agency stated that, as of May 11, 1993, all

permanent Region V employees either have direct access to the Data

General system, or arrangements for access are in place. The agency noted

that the amount of time employees would have to use the system was not

part of the SA, but that supervisors were free to grant time and that

employees usually could access the system outside of their duty hours.

Regarding recruitment, the agency noted that it was represented at job

fairs targeted at Hispanic applicants in 1992 (seven fairs) and 1993

(eight fairs). The agency further noted that Hispanic applicants are

represented in its External Outreach database at a higher percentage

than any other ethnic minority, but acknowledged that because it was

in the process of reducing its workforce by 400 positions, it was not

presently recruiting new employees. Regarding the workload analysis,

the agency stated that forest work plans had been completed and sent to

appellant, and that a workload analysis was conducted for each forest

in fiscal year 1991. The agency noted that the SA required that only

one such workload analysis be done, not that they be done annually.

The agency further stated that each Special Emphasis Program Manager

had submitted an annual program of work, and that Hispanic Employment

Program Managers are allotted the amount of time for recruitment

activities required by the SA. The agency stated that Region V has

made proposals for corrective action where recruitment efforts have

fallen short of achieving established goals, and that numerical goals to

correct under-representation of women and minorities had been provided

to appellant. The agency noted that it had also initiated affirmative

recruitment actions beyond those required under the SA.

Application and Hiring Procedures [Item 33]: Appellant alleged that very

few forests are advising unsuccessful job applicants to reapply.

Agency response: The agency stated that Region V notifies all unsuccessful

applicants of their non-selection in writing, and in that notification

encourages applicants to fill out survey forms and have their names

placed in the External Outreach database so that they will be notified

of future vacancies for which they are qualified.

Retention and Career Development [Items 51, 52, 60, 61, and 75h]:

Appellant alleged that attrition of Hispanic employees is high, and

that many of the separations appear to result from adverse actions;

moreover, Region V failed to submit an analysis of the results of the

exit-interview process. Appellant alleged that only seven forests have

formalized partnerships with community colleges to provide technical

skill development in technical-series jobs forecasted. Appellant further

alleged that Region V has failed to address the technical-to-professional

programs.

Agency response: The agency stated that its retention rate for Hispanic

employees was 98.1 percent for males and 98.6 percent for females.

The agency stated that it had provided appellant with a required Report

on Exit Interviews. The agency stated that Region V had developed

partnerships with eight colleges, and noted that the SA did not require

that every forest in Region V have such a partnership. The agency stated

that Region V awarded $100,000 in scholarships under its Multi-Cultural

directives, and noted that Hispanic applicants received 13 of 84

scholarships, with 68 percent of all Hispanic applicants receiving a

scholarship.

Bilingual Component [Item 63]: Appellant alleged that the agency had

identified only three forests as being required to review and identify

positions where bilingual skills would be beneficial; had failed to

identify whether any audits of positions had been conducted; and had

not described the process or criteria used to identify positions.

Agency response: The agency stated that 3 forests were identified where

positions with bilingual skills would be beneficial. A letter was sent

requesting that the forests identify by title, series, and grade all

positions meeting this requirement. Forests were instructed that when

such positions become vacant and are readvertised, bilingual skills must

be added as a selection requirement.

Regarding the allegation of breach as a whole, the agency noted that

it had accomplished all of the actions required by the SA, except with

regard to achieving parity with the Civilian Labor Force representation

of Hispanics in every PATCO<2> category. the agency noted that the SA

contained a remedy for this failure, which was two (2) automatic one-year

extensions of the SA, for a maximum term of five years, to expire in

April 1995. The agency maintained that it had made good faith efforts

to recruit and hire Hispanic employees, and had voluntarily undertaken

additional efforts outside of the SA to recruit, hire, and retain Hispanic

and other minority employees.

Arguments on Appeal

On appeal, appellant argued that the agency has not acted in good faith,

especially with regard to recruitment and hiring practices, given

that the proportion of Hispanic agency employees is 7 percent, while

the proportion of Hispanic employees in the civilian labor force is 24

percent. Appellant further argues that the agency's recruitment efforts

were inadequate. Appellant also argues that the agency was required

by the SA to achieve workforce parity with the civilian labor force.

Appellant also argues that the agency is in possession of documentation

of specific incidents of reprisal against Hispanic employees. Appellant

sought relief as follows: appointment of an external monitor/management

consultant chosen from outside the agency; appointment of an internal

monitor chosen from the agency, but outside of the Forest Service;

restructuring of Region V's Personnel Manager position so that the

Personnel Manager would report directly to the Civil Rights Director;

restructuring the Civil Rights Director position so that the Civil Rights

Director would report directly to the Regional Forester; establishment of

a full-time Hispanic Employment Program Manager position at all forests;

and attorney fees and costs.

The agency's response on appeal was threefold: (1) that the allegation

of "non-compliance" was premature, given that the SA provided for two

automatic extensions, and did not expire until April 1995; (2) that

allegations of reprisal are to be processed pursuant to 29 C.F.R. Part

1614 as new allegations of discrimination; and (3) that in the interest

of good faith efforts at dispute resolution, the agency had initiated

a mediation regarding concerns over compliance with the SA.

Decision of the Commission

A settlement agreement is a contract between the complainant (appellant

herein) and the agency, and it is the intent of the parties as expressed

in the contract, not some unexpressed intention, which controls the

contract's construction. Eggleston v. Department of Veterans Affairs,

EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent

of the parties with regard to the terms of a settlement agreement, the

Commission generally has relied on the "plain meaning" rule. See Hyon

O v. U.S. Postal Service, EEOC Request No. 05910787 (December 2, 1991).

This rule states that if a writing appears to be plain and unambiguous

on its face, its meaning must be determined within the confines of

the document itself, without resort to extrinsic evidence of any kind.

See Montgomery Elevator Co. v. Building Engineering Services Co., 730

F.2d 377 (5th Cir. 1984).

Appellant has alleged that the agency breached the SA because parity

was not achieved between the proportion of Hispanics in the agency's

workforce and the proportion of Hispanics in the civilian labor force.

Appellant contends that parity was required by the SA. However, Item

79 of the SA states:

This agreement shall remain in effect for three years after its effective

date. Its effective date shall be 30 days after its full execution

by all of the parties. The agreement may be terminated earlier upon a

showing by R5 [Region V], through agency data, that the following have

been accomplished: ... [list of Hispanic representation goals expressed

as percentages of the civilian labor force figures].

Item 80 of the SA states, in relevant part:

An automatic 1 year extension of this agreement will occur if compliance

expectations are not met as set forth in paragraph 79. If still in

non-compliance after that extension, another automatic 1 year extension

will occur. Total length of agreement is not to exceed 5 years....

Item 81 of the SA provides for extension of the SA when there has been a

government-wide of agency-wide freeze in hiring and promotions. Item 81

states, in relevant part, "Under no circumstances shall this agreement

be extended beyond two years of [sic] its termination date...."

By its own terms, the SA does not require the agency to achieve parity

Hispanic representation with the civilian labor force. Rather, the

SA identifies "compliance goals" which it acknowledges may not be met

within the term of the SA. Although appellant may have expected that

the goals would be met, that expectation was not expressed in the SA

as an obligation on the agency. Accordingly, the Commission finds that

the agency did not breach the SA by failing to meet the compliance goals.

Appellant also argues that the agency did not carry out its obligations

in good faith. Having reviewed the voluminous record, the Commission

finds that the agency did make a good faith effort to meet its obligations

under the SA. The agency's performance under the SA was not so lacking

as to warrant a finding of bad faith. See Todd v. Social Security

Administration, EEOC Request No. 05950169 (June 12, 1997).

Appellant further argued that members of the putative class have been

subjected to acts of reprisal on account of their association with the SA.

The Commission has held, however, that allegations of reprisal subsequent

to execution of a settlement agreement do not constitute breach of the

settlement agreement, but are instead new allegations of discrimination

which must be processed pursuant to the Commissions regulations at

29 C.F.R. Part 1614.<3> See Gish v. Dept. of the Army, EEOC Request

No. 05950918 (May 30, 1997).

Attorney Fees

Item 85 of the SA states:

Complainants [appellant] seek to preserve a claim for attorney fees.

Any claim of complainants must be submitted within 30 days and may not

exceed $15,000. Region [sic] denies complainant has any right to seek

attorney fees.

In his request for reconsideration, appellant argues that he is a

prevailing party, and therefore is entitled to an award of attorney fees.

The Commission has held that a complainant is a prevailing party where he

or she succeeds on any significant issue of the complaint and achieves

some of the benefit sought therein. See, e.g., Troie v. U.S. Postal

Service, EEOC Request No. 05930866 (September 22, 1994). By this measure,

appellant is a prevailing party. Accordingly, if the agency has failed

to pay appellant's attorney fees pursuant to the SA on the ground that

appellant is not a prevailing party, the agency is in error and must pay

such fees forthwith. With regard to the services rendered by the class

attorney on appeal and on this request for reconsideration, however, the

sole benefit obtained through such services was that the agency will be

ordered to pay the attorney fees contemplated by the SA, if it has not

already done so. Accordingly, appellant is entitled to a further award

of attorney fees only with regard to the hours expended by the class

attorney on that portion of the request for reconsideration addressing

the issue of whether appellant is a prevailing party for purposes of an

award of attorney fees pursuant to the SA. See Stull v. Dept. of Justice,

EEOC Appeal No. 01941582 (June 15, 1995).

CONCLUSION

Upon review of the agency's request for reconsideration and appellant's

cross-request for reconsideration, the previous decision, and the

entire record, the Commission finds that the parties' requests meet

the criteria of 29 C.F.R. �1614.407(c). Accordingly, the requests are

GRANTED. The Commission further finds that the agency did not breach the

settlement agreement. Because the merits of the breach allegation have

been addressed for the first time herein, the parties will be afforded

reconsideration rights.

ORDER (C1092)

The agency is ORDERED to take the following remedial action:

If it has not already done so, within thirty (30) days of the date on

which this decision becomes final, or within thirty (30) days of the

date on which it receives appellant's fee petition, whichever is later,

the agency shall pay appellant's reasonable attorney fees and costs

pursuant to Item 85 of the SA. The agency shall also pay appellant's

reasonable attorney fees and costs incurred on request for reconsideration

in connection with the foregoing issue only, in accordance with the

below-entitled paragraph, "Attorney's Fees."

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 (H1092)

If appellant has been represented by an attorney (as defined by

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 (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

appellant. If the agency does not comply with the Commission's order,

appellant may petition the Commission for enforcement of the order.

29 C.F.R. �1614.503 (a). 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, 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 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.

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

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. 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:

Oct. 14, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat

1It is noted that all references to "appellant" herein refer to appellant

in his capacity as class agent.

2Position classifications: professional, administrative, technical,

clerical, and other.

3If appellant, or other member of the putative class, wishes to pursue

an individual allegation of reprisal discrimination which was raised

with specificity in the notice of breach, he or she still may do so,

provided he or she contacts an EEO Counselor to raise such allegation

within 15 days of the date this decision is received by the attorneys

for the class. The date of EEO Counselor contact will be deemed to be

the date on which the allegation of breach was filed, unless counselor

contact was made prior to filing the breach allegation, in which case the

actual date of contact will be used. Cf. Qatsha v. Dept. of the Navy,

EEOC Request No. 05970201 (January 16, 1998).