01983230
06-14-2001
Mohammad E. Akberzie, M.D., Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Mohammad E. Akberzie, M.D. v. Department of Health and Human Services
01983230
06-14-01
.
Mohammad E. Akberzie, M.D.,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01983230
Agency No. IHS07796
DECISION
INTRODUCTION
On March 9, 1998, Mohammad E. Akberzie, M.D. (complainant) initiated an
appeal to the Equal Employment Opportunity Commission (EEOC or Commission)
from the final decisions of the Department of Health and Human Service
(agency or IHS), finding compliance with the terms of the November 10,
1997 settlement agreement between the parties. Upon review, the Commission
finds that the agency breached the settlement agreement when it failed
to expunge the documents listed in Clause I of the agreement.
ISSUES PRESENTED
The issue presented herein is whether the agency breached the parties'
settlement agreement when it:
(1) failed to expunge the documents listed in Clause I of the settlement
agreement until December 29, 1998; and
(2) agreed to consider any claims for compensatory damages provided
the complainant submit the required documentation, and it awarded
$1,103.01 in compensatory damages when complainant submitted a request
for $494,761.55.<1>
BACKGROUND
Complainant was employed as a physician at the Claremore Indian Health
Services (IHS) of the Department of Health and Human Services in Tulsa,
Oklahoma. On August 30, 1996, and January 13, 1997, complainant filed
two formal EEO complaints alleging discrimination on the bases of national
origin (Afghanistan), religion (Moslem), and reprisal (prior EEO activity
- Title VII). IHS terminated complainant, effective March 15, 1997, at
which time complainant appealed to the Merit Systems Protection Board
(MSPB). On July 30, 1997, an MSPB settlement agreement was entered
into by the parties. However, complainant refused to include the
EEO complaints in the MSPB settlement agreement . On November 10,
1997, the parties agreed to enter into an EEO settlement agreement
(hereinafter, �settlement agreement�) in satisfaction of complainant's
EEO complaints. Clause I of the settlement agreement, signed on or about
November 6, 1997, provided in pertinent part that:
A.) The IHS agrees to expunge the letter of leave restriction,
[complainant] received on May 9, 1996.
B.) The IHS agrees to expunge the �Official Letter of Reprimand�
[complainant] received on August 20, 1996;
C.) The IHS agrees to expunge any memo from [complainant's] file, that
required [complainant] to use the sign in/out sheet, and the May 19,
1996, memo [complainant] allege [he] received. [sic]
D.) The IHS and the complainant agree, that he received the Within-grade
increase.
E.) The IHS agrees to seal all pertinent information pertaining to the
summary suspension of [complainant's] medical privileges, and agrees that
any information relating to [complainant's] summary suspension will not
be used against him in any manner.
F.) The IHS agrees to change the seven (7) hours of [Absence Without
Leave] (AWOL) complainant received on August 5, 1997, and the three
and half (3.5) AWOL received on November 4, 1996, to annual leave or
sick leave.
G.) The IHS agrees to expunge the suspension the complainant received,
from January 13, 1997 through January 17, 1997, and agrees to pay the
complainant back pay for this period.
J.) The IHS agrees to consider any claims for compensatory damages
provided the complainant submits the following documentation within 30
days of receipt of this offer:
* Proper and complete documentation which justifies [complainant's]
claim to compensatory damages. These documents may include, but are
not limited to, medical expenses to include any psychiatric treatment,
travel expenses to obtain medical treatment, moving expenses, job search
expenses, or any other documents which will assist the Director, EEO,
IHS, and this agency in determining the amount of compensatory damages
that you may be entitled to.
* Any available document that would establish a causal connection
between the conduct complained of and [complainant's] injuries, if any.
This request is based on EEOC's Enforcement Guidance on Compensatory
and Punitive Damages Available under Section 102 of the Civil Rights
Act of 1991. The complainant is not entitled to punitive damages.
See 42 U.S.C. section 1981a. See also EEOC Commission Case Law, Jackson
v. USPS, 93 FEOR 3061, Broughton v. Navy, 95 FEOR 1242, and Carle v. Navy,
94 FEOR 1043. See attached compensatory damages letter.
Expunged Records
By letter to the agency dated August 26, 1998, complainant alleged that
the agency was in breach of the settlement agreement for failure to
expunge his files as described in the settlement agreement. Specifically,
complainant stated that he believed he was being blackballed by IHS
because information or files of an adverse nature had in fact been
released. In its January 15, 1999 decision, the agency concluded that
it was not in breach of the settlement agreement because, as of December
29, 1998, all documents pertaining to complainant had been shredded,
and files were no longer being maintained about complainant.
On appeal, complainant, through his attorney, contends that the documents
in question had been released to other entities, including a party to
a lawsuit in which complainant is the plaintiff, other IHS offices,
and potential employers. Complainant admits that he is unable to
determine his actual damages arising from the agency's breach of
the settlement agreement. However, he argues that, where potential
employers were initially friendly and gave indications that complainant
would be hired, their attitudes and positions changed after contact was
made with IHS. For this reason, complainant believes that documents or
information of an adverse nature must have been released to potential
employers. Complainant requests monetary damages in excess of $10,000,
reinstatement of his complaints, and attorney fees for the agency's
breach. The agency contends that specific enforcement is appropriate,
noting that complainant's records were expunged as of December 29, 1998.
However, the agency asserts that none of the records were released to
potential employers, and points out that it is the MSPB settlement
agreement, not the EEO settlement agreement, which relates to the
releasing of information to potential employers.
Compensatory Damages
On October 30, 1997, complainant submitted a signed settlement agreement
with documentation of compensatory damages. The documents referred to
out-of-pocket expenses, future pecuniary and non-pecuniary expenses,
and included a statement from complainant and statements from physicians.
Complainant requested a total of $494,761.55 in compensatory damages. On
February 10, 1998, the agency issued a final decision, notifying
complainant that he was not entitled to any compensatory damages
because he failed to produce objective documentation or evidence that he
incurred any damages for which the agency was responsible. The agency also
determined that complainant failed to show a nexus between his damages and
his allegations of discrimination. However, complainant received a check
dated February 20, 1998 in the amount of $1,130.01 from the agency with
the notation �Settlement Agreement.� No explanation was provided with
the check.<2> On appeal, complainant, through his attorney, contends
that the agency acted in bad faith when it induced complainant to enter
the settlement agreement with an offer �to consider� compensatory damages.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached
at any stage of the complaint process, shall be binding on both
parties. The Commission has held that a settlement agreement constitutes
a contract between the employee and the agency, to which ordinary
rules of contract construction apply. See Herrington v. Department of
Defense, EEOC Request No. 05960032 (December 9, 1996). The Commission
has further held that it is the intent of the parties as expressed
in the contract, not some unexpressed intention, that 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 has generally relied on the �plain meaning� rule. See Hyon
v. United States Postal Service, EEOC Request No. 05910787 (December
2, 1991). This rule states that if the writing appears to be plain
and unambiguous on its face, its meaning must be determined from the
four corners of the instrument without resort to extrinsic evidence of
any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co.,
730 F.2d 377 (5th Cir. 1984).
After a careful review of the record, the Commission finds that the agency
failed to comply with the terms of the settlement agreement with respect
to the expungement of complainant's records.<3> The parties entered into
the settlement agreement in November of 1997, yet the agency failed to
expunge the records until December 29, 1998. The agency admits that
it released the records to a party in a lawsuit in which complainant
is the Plaintiff, but contends that it did not release the records to
complainant's potential employers. We note, however, that the record
fails to address whether information was released from the records.
The agency further contends that the EEO settlement agreement is not
the agreement that relates to the releasing of information to potential
employers. However, we find that to the extent that the records were to
be expunged under the terms of the EEO settlement agreement, those records
could not be shared with future employers. We note that the agency's
breach over the course of one year has rendered specific performance an
unsatisfactory solution because it fails to adequately address the harm
complainant may have suffered during the one year period in which the
agency was in breach.<4> Accordingly, we find that the agency breached
the settlement agreement, and therefore, complainant's EEO complaints
should be reinstated. We note that complainant is not entitled to a
determination on his claim of breach with respect to compensatory damages
(Clause I, Sub-section J of the November 1997 settlement agreement)
because his EEO complaints are hereby reinstated.
We further find complainant's request for damages for the breach to
be a request for compensatory damages. The Commission has held that
"compensatory damages are not an available remedy upon a finding of
breach." Martin v. Department of Defense, EEOC Request No. 05940745
(Aug. 24, 1995). "[O]ur regulations provide only that [we] may order
compliance and reinstatement of the underlying complaint." Id. (citing
29 C.F.R. �1614.504(c) and Williams v. Department of Veterans Affairs,
EEOC Request No. 05931172 (Aug. 4, 1994)). Therefore, we find that
complainant is not entitled to the damages he requests on appeal with
respect to the breach.
CONCLUSION
Accordingly, the agency's finding of no settlement breach is REVERSED, and
the matter is REMANDED to the agency for compliance with the Order below.
ORDER
The agency is ORDERED to notify complainant of his option to return to the
status quo that existed prior to the signing of the settlement agreement.
Pursuant thereto, the agency shall notify complainant within forty-five
(45) calendar days of the date this decision becomes final that he has
fifteen (15) calendar days from the date of receipt of the agency's
notice within which to notify the agency whether he wishes to return to
the status quo or to allow the terms of his November 1997 EEO settlement
agreement to stand. Complainant shall be notified that in order to return
to the status quo, he must return any monies or benefits received as
a result of his settlement agreement, including compensatory damages.
The agency shall determine any payment due complainant, or return of
consideration or benefits due from complainant, within forty-five (45)
calendar days of the date this decision becomes final and shall include
such information in the notice to complainant. If complainant elects to
return to the status quo and he returns all monies or benefits owing to
the agency, as specified above, the agency shall also resume processing
of complainant's complaints from the point processing ceased pursuant
to 29 C.F.R. � 1614.108 et seq. In the event that complainant elects not
to return to the status quo, i.e., not to return any consideration owing
to the agency, the agency shall notify complainant that the terms of his
settlement agreement will stand. The agency shall also reissue a final
agency decision regarding compensatory damages and provide complainant
with appeal rights to the Commission.
Copies of the agency's notices to complainant regarding his options, as
well as copies of either the correspondence reinstating the complaints for
processing, or the correspondence notifying complainant that the terms
of the agreements will stand must be sent to the Compliance Officer as
referenced below.
ATTORNEY'S FEES (H0900)
If complainant 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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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, Director
Office of Federal Operations
__06-14-01________________
Date
1The agency argues that complainant is untimely as to his allegation of
breach with respect to compensatory damages, though notes complainant's
timeliness with respect to attorney's fees. However, complainant has
proven that he submitted his appeal in a timely manner. We note that
complainant has not alleged breach with respect to attorney's fees.
2The record remains unclear as to whether complainant cashed the check.
3Because we find breach with respect to the expungement of complainant's
records, we need not address complainant's contention of breach with
respect to compensatory damages.
4 We further note that the agency has been in substantial compliance
of the settlement agreement since December 29, 1998 when it expunged
the records.