01A11542_r
01-17-2002
Tom J. Schafer, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Tom J. Schafer v. Department of Interior
01A11542
January 17, 2002
.
Tom J. Schafer,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A11542
DECISION
On December 7, 2000, complainant filed the present appeal with the
Commission alleging that the agency had breached the April 21, 1999
settlement agreement entered into by the parties.
The settlement agreement provided, in pertinent part, that:
(3) Claimant agrees to accept the sum of Twenty-five Thousand Dollars
($25,000.00) from the [agency] in full settlement and satisfaction of
any and all claims, including but not limited to claims for damages,
injuries, costs, interest and attorney's fees that Claimant, his heirs,
executors, administrators, and assigns now have or may acquire as a
result of the acts, events, or conduct leading to this litigation or
alleged in the complaints and related appeals herein which were filed
with the EEOC on or about January 1, 1995 to date.
. . . .
(5) [The agency's] check in the amount of Twenty-five thousand Dollars
($25,000.00), from the Treasury of the United States, shall be drawn
payable to [Complainant] and his attorneys . . . to be paid within six
to eight weeks, pursuant to the terms of Paragraph 9, regarding attorneys
fees and costs.
. . . .
[The agency] agrees to pay Claimant's attorney's fees and other costs
of this litigation out of the payment referred to herein directly to
counsel and Claimant understand that any tax consequences of such payment
will be his sole responsibility. Such payment is to be determined
within 24 hours and reported to [Person A] for payment consistent with
that agreement. Such amount is subject to review by the Office of the
Solicitor, [of the agency].
By letter to the agency dated March 23, 2000, complainant alleged that
the agency was in breach of the settlement agreement.<1> Specifically,
complainant alleged that the agency failed to pay him $25,000.00 within
the time frame specified in the April 21, 1999 agreement.
The agency issued complainant appeal rights on November 15, 2000, since
it had not yet issued a final decision on his breach claim.
Complainant filed an appeal with the Commission on December 7, 2000.
Complainant stated that the agency breached the agreement by failing
to pay him $25,000.00 within the six to eight weeks specified in the
agreement. Complainant stated that he did not receive the agreed upon
payment until October 20, 1999, approximately four months past due.
As a result of the breach, complainant requested an additional $2,000.00
in attorney's fees, reasonable interest on $25,000.00 for four months,
and an additional $1,000.00 for his costs to represent himself in this
breach claim.
The record contains a May 6, 1999 letter from the agency to complainant's
attorney stating that the agency is awaiting a copy of the attorney
fee bills in order to process the settlement payment. The letter
also requests that complainant agree not to seek re-employment with
the agency for a period of seven (7) years. By letter dated June 14,
1999, complainant's attorney requested that the agency make the payment
specified in the April 21, 1999 agreement. The attorney stated that the
material modification to the agreement that the agency is seeking lacks
consideration and is unenforceable. Complainant's attorney states that
complainant would agree to a two-year prohibition on employment with
the Bureau of Indian Affairs for additional consideration in the amount
of $5,000.00. By letter dated June 24, 1999, complainant's attorney
submitted the final billing statement. The attorney stated that an
additional $1,000.00 in fees accrued as a result of the agency's delay in
implementing the terms of the agreement and the additional negotiating
done regarding the agency's proposed modification to the agreement.
The agency stated in a July 6, 1999 letter that it received the fee
bills and forwarded the bills and agreement to the headquarters office
for processing.
The record shows that the agency processed the $25,000.00 payment on
October 7, 1999. The agency states, and complainant does not refute, that
the payment was received by complainant's attorneys on October 17, 1999.
The record shows that complainant's attorneys transferred complainant's
share of the payment to him on October 20, 1999.
In a letter dated March 12, 2001, the agency responded to complainant's
appeal to the Commission regarding his breach of settlement claim. The
agency stated that the payment to complainant was processed on September
14, 1999, and the check to complainant and his attorneys was issued on
October 11, 1999. The agency noted that the delay in payment was due
to subsequent negotiations between complainant's counsel and the agency
representative. The agency concluded that it substantially complied with
the terms of the April 21, 1999 agreement; however, it stated that due
to the delay in payment it was liable for interest that accrued between
June 16, 1999, the date payment was due, and October 17, 1999, the date
payment was made. The agency also found that complainant's counsel was
entitled to reimbursement for the time spent in negotiating over the
non-employment clause. The agency found that an additional $1,000.00
is due in attorney's fees. The agency rejected complainant's claim
for $2,000.00 payable to him for his costs in processing this case.
The agency agreed to make the above mentioned payments within sixty
(60) days of March 12, 2001. The agency concluded that it substantially
complied with the settlement agreement. The Commission will treat the
agency's March 12, 2001 decision as a final decision on the breach of
settlement claim.
By letter dated May 15, 2001, complainant responded to the agency's March
12, 2001 decision and stated that he did not receive the additional
$1,000.00 in attorney's fees nor interest on the $25,000.00 payment
within the specified sixty (60) day time frame.
The agency submitted a letter dated July 24, 2001, stating that it paid
complainant interest on the late $25,000.00 payment and an additional
$1,000.00 in attorney's fees. The agency showed that a voucher in the
amount of $1,533.22 was prepared on June 29, 2001.
By letter dated July 29, 2001, complainant stated that the agency payment
was received by his former attorneys (who no longer represented him as of
October 20, 1999) on approximately July 10, 2001. Complainant requested
that his EEO complaints be reinstated for processing.
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).
In the present case, the Commission finds that although the agency
initially breached the April 21, 1999 agreement, it subsequently complied
with all the relevant provisions of the agreement. The settlement
agreement stated that the agency would pay complainant and his attorneys
$25,000.00 within eight weeks of the date of the agreement. The agency
acknowledged that complainant did not receive payment of the agreed upon
sum within eight weeks of the date of the agreement. The record reveals
that complainant and his attorneys received the $25,000.00 payment
on October 17, 1999. The record further reveals that the agency paid
complainant interest on the late $25,000.00 payment for the period of
June 16, 1999, the date payment was due, through October 17, 1999, the
date payment was received. In addition, the agency paid complainant's
attorneys an additional $1,000.00 in fees for the additional work in
obtaining compliance. Thus, we find that although the agency initially
breached the settlement agreement by not paying the agreed upon sum in
a timely manner, we find that the agency has now substantially complied
with the agreement.
Accordingly, the agency's decision that it substantially complied with
the agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 17, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In a complaint dated March 23, 2000, complainant alleged that the agency
breached the April 21, 1999 agreement and that the agency retaliated
against him when it requested that he sign an agreement not to seek
reinstatement with the agency for seven years. The agency issued a final
decision dismissing the reprisal claim on January 2, 2001. Complainant's
appeal of the reprisal claim is addressed under EEOC Appeal No. 01A11907.