01970398
01-24-2000
Nabil S. Makary, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Nabil S. Makary v. Department of Agriculture
01970398
January 24, 2000
Nabil S. Makary, )
Complainant, )
)
v. ) Appeal No. 01970398
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
For the reasons that follow, the Commission modifies the agency's
September 12, 1996 final decision limiting its payment of complainant's
attorney's fees and refusing to reinstate complainant's November 14,
1995 informal EEO complaint for alleged noncompliance with a February 27,
1996 settlement agreement (SA, or the agreement).<1> We find the agency
has provided no response to complainant's October 12, 1996 appeal to
persuade us to reach a contrary conclusion.<2>
64 Fed. Reg. 37,660 (1999) (hereinafter referred to and codified
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. That section further provides that if the complainant
believes the agency has failed to comply with the terms of a settlement
agreement, the complainant shall provide written notice to the agency's
Director of Equal Employment Opportunity of the alleged noncompliance
with the settlement agreement, within 30 days of when the complainant
knew or should have known of the alleged noncompliance. 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.
Settlement agreements are contracts between the complainant 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 addition, the Commission generally follows the
rule that if a 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 v. Building Eng'g Servs., 730 F.2d 377 (5th Cir. 1984).
In the present case, we find the agency was not in compliance with
provision (3). In fact, we find the agency has expressly conceded that
"[t]he agency has failed to comply with Item 3 of the settlement agreement
of February 27, 1996." Item 3 committed the agency "[t]o pay reasonable
attorney fees, within 20 days of the complainant submitting a schedule
of fees to the Agency in accordance with [64 Fed. Reg. 37,659 (1999)
(hereinafter referred to and codified as 29 CFR �1614.501(e))]." If the
agency had intended to limit complainant's attorney's fees, it should
have reduced such an intent to writing, as part of the SA, and not by
way of the FAD. See 64 Fed. Reg. 37,659 (1999) (hereinafter referred to
and codified as 29 C.F.R. � 1614.501(e)(2)(i)).
In the FAD, the agency declared it would "initiate payment of" two
hours of [complainant's] attorney's fees, which in this case would
be a total of $450. Complainant's attorney, however, had requested
$4,853.47 for 21.571 hours at an hourly rate of $225, and a named member
of the agency's Civil Rights Staff had, in an April 10, 1996 letter to
the Chief of a unit of the agency's Budget and Finance Division, asked
that complainant's attorney be paid in the amount of $4,387.50.
We find the agency is bound by the language of the SA to pay
complainant's reasonable attorney's fees. We find the reference to the
Commission's regulations governing attorney's fees, including an exclusion
of attorney's fees for work performed prior to the filing of a written
complaint except for work done in determining whether to represent a
complainant for a reasonable period of time before notification to the
agency of representation,<3> merely provides the framework setting
forth how attorney's fees are to be calculated, and the procedures an
attorney must follow in submitting such a claim to the agency. See, in
this regard, 29 C.F.R. �1614.501(e)(2)(i), which provides in pertinent
part that "the complainant's attorney shall submit a verified statement
of attorney's fees," along with "an affidavit executed by the attorney of
record itemizing the attorney's charges for legal services...The verified
statement, accompanying affidavit and any agency response shall be made
a part of the complaint file." Therefore, we find the FAD's reliance
on Foxie v. U.S. Postal Service, EEOC Appeal No. 01940384 (October 14,
1994), to be misplaced with regard to limiting complainant's attorney's
fees to two hours.
However, we find no evidence that the agency provided the Commission
with a copy of the complaint file, as requested by the Commission in a
November 11, 1996 letter, and as the agency is legally obligated to do.
See 64 Fed. Reg. 37,659 (1999) (hereinafter referred to and codified
as 29 C.F.R. � 1614.403(e)). Thus, we are unable to determine whether
complainant's attorney complied with 29 C.F.R. � 1614.501(e).
Therefore, before there can be a determination as to the specific amount
of attorney's fees the agency must award complainant, there has to be a
determination as to whether complainant's attorney complied with the
requirements of 29 C.F.R. � 1614.501(e), in relevant parts. In accordance
with 64 Fed. Reg. 37,660 (1999) (hereinafter referred to and codified
as 29 C.F.R. � 1614.504(c), the Commission shall direct the agency to
provide "additional information or documentation." Id.
In light of the foregoing, the Commission AFFIRMS the FAD's finding of
noncompliance, but VACATES the FAD's determination as to the amount of
attorney's fees. This matter is hereby REMANDED for agency compliance
with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to provide the Commission with a true and
complete copy of the entire complaint file in this matter. The agency
shall thereafter issue a new FAD, with appeal rights to the Commission,
addressing the issue of complainant's attorney's fees within the context
of the Commission's decision and applicable regulations. Submission of
the complaint file and the issuance of the new FAD shall be effected
within thirty (30) calendar days of the date the Commission's decision
becomes final, in consideration of the amount of time that has elapsed
in the present matter. The agency shall submit a copy of the complaint
file and the new FAD to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
January 24, 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.
2In his appeal, which he filed on his own behalf, complainant claimed
he received the FAD on September 20, 1996. In the absence of evidence
to the contrary, we find complainant's appeal to be timely. See 64
Fed. Reg. 37,659 (1999) (hereinafter referred to and codified as 29
C.F.R. � 1614.402(a)).
3See 64 Fed. Reg. 37,660 (1999) (hereinafter referred to and codified
as 29 C.F.R. � 1614.501(e)(1)(iv)).