05970889
09-26-2000
William L. Thomas, Complainant, I. Michael Heyman, Secretary, Smithsonian Institute, Agency.
William L. Thomas v. Smithsonian Institute
05970889
September 26, 2000
William L. Thomas, )
Complainant, ) Request No. 05970889
) Appeal No. 01965078
) Agency No. 96-01-101295
)
I. Michael Heyman, )
Secretary, )
Smithsonian Institute, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On June 20, 1997, the Smithsonian Institute (the agency) initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in William L. Thomas v. Smithsonian Institute,
EEOC Appeal No. 01965078 (May 16, 1997).<1> EEOC Regulations provide that
the Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument which tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A Request for Reconsider is not merely a form
of a second appeal. Regensberg v. U.S. Postal Service, EEOC Request
No. 05900850 (September 7, 1990). In its request, the agency continues
to argue that there was no oral agreement. However, the previous decision
found that under the doctrine of detrimental reliance the agency should
comply with the oral agreement. The agency's arguments do not meet the
criteria of 29 C.F.R. � 1614.405(b) and the agency's request is DENIED.
The record indicates that complainant filed an EEO complaint alleging
discrimination based on race (Caucasian), sex, age, and disability when
he was deemed ineligible for a certain position. He later amended the
complaint regarding unfair competition over another position. Thereafter
settlement negotiations commenced and an oral agreement was reached. In
various memoranda prepared by his attorney, complainant asserted, in
essence, that the agreement provided for the announcement by the agency of
his retirement, that he would vacate his office, receive approximately 16
months of administrative leave, $60,000 dollars in compensatory damages,
and $10,000 in attorney's fees. A provision of complainant's version
of the settlement agreement covered outside employment.
The agency announced complainant's retirement and he vacated his
office. He commenced administrative leave, but was then informed
that there was no agreement, but that he should remain on leave an
additional amount of time. When complainant returned to work, he was
not returned to his office and was informed that his position had been
abolished. Complainant was given unassigned tasks to do. Complainant
promptly sought enforcement of the settlement agreement. The agency
issued a decision finding that there never was an agreement.
The previous decision held that, under the doctrine of detrimental
reliance, the agency was bound by the terms of the oral agreement. The
Commission found persuasive the fact that complainant altered his position
in reliance on the agreement, and found complainant's reliance justifiable
given the stature of the agency officials involved in the negotiations
and their assurances that the oral agreement would be ratified. The
Commission further found specific performance to be the appropriate
relief, with the exception of the provision regarding outside employment,
which the Commission found unenforceable.
For the first time, with its request for reconsideration, the agency
submits a copy of the settlement agreement that was prepared by its Office
of Human Resources. The terms of that settlement agreement are similar
to those presented by complainant's attorney - i.e. being placed in
excused absence status, $60,000 in a lump sum settlement, complainant's
retirement effective June 27, 1997, attorney's fees of $10,000, a letter
of recommendation, carry over of unused leave, and the withdrawal of
complainant's EEO complaints. The agency's version does not include
that provision concerning outside employment which the previous decision
found unenforceable.
Given the passage of time since the settlement agreement originated,
some provisions must be re-examined and clarified. As an initial matter,
the Commission notes that it is apparent that the provision of excused
absence was meant to enable complainant to retire with 30 years of
service. This information is gleaned from the agency's announcement
of complainant's retirement which references 30 years, along with
complainant's SF-171 which indicates he has 3 years of military service
and commenced his federal employment in 1970. Given that as of the date
of complainant's response to the agency's request for reconsideration -
which was beyond his original intended retirement date - complainant
was still employed by the agency, the Commission finds that any further
provision of excused absence or administrative leave would no longer serve
its intended purpose. As such, the Commission is not ordering the agency
to comply with that provision. However, complainant need not repay any
excused or administrative leave he has already received. In addition, the
time period connected with the provision dealing with the carry over of
unused leave has expired. Further, given that the $60,000 was meant to be
paid while complainant was in an excused absence status, the Commission
finds that the payment was meant to be compensatory damages. Lastly,
the Commission notes that complainant's attorney may submit a request
for additional costs associated with getting the agreement enforced,
complainant's appeal,<2> and the response to the agency's request for
reconsideration.
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny the request. The decision in
EEOC Appeal No. 01965078 remains the Commission's final decision as
modified herein. There is no further right of administrative appeal on
the decision of the Commission on this request for reconsideration.
ORDER
The parties are Ordered to comply with the following:
(1) Complainant shall not be responsible for any excused
absence/administrative leave that has been used by him as of the date
this decision becomes final.
(2) The agency shall pay complainant the sum of $60,000 in compensatory
damages, plus interest within sixty (60) days of the date on which this
decision becomes final.
(3) Complainant will immediately submit his retirement from the agency
upon receipt of the above awarded compensatory damages.
(4) The agency shall pay reasonable attorney's fees directly to
complainant's attorney in the amount of $10,000, plus interest.
(5) The agency shall also pay directly to complainant's attorney
reasonable attorney fees and costs incurred in pursuit of the enforcement
of the settlement agreement including, but not limited to, complainant's
appeal and response to the agency's request for reconsideration. The
attorney shall provide the agency with all necessary documentation of
services rendered and costs incurred in connection with this appeal within
twenty (20) calendar days of the date on which this decision becomes
final. The agency may tender this payment separately, or together with
the payment specified in paragraph (2) of this Order. If this payment is
tendered separately, the agency shall tender it to complainant no later
than sixty (60) calendar days after the date on which this decision
becomes final.
(6) Complainant will be provided with a letter of recommendation by the
Director of the Physical Plant within fifteen (15) days of the date on
which this decision becomes final.
(7) Paragraphs 7-12 of the agency's copy of the settlement agreement
submitted to the Commission and dated February 22, 1996 are incorporated
herein.
(8) The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� This report shall include supporting documentation verifying
that the above corrective action has been implemented.
The agency shall so comply no later than thirty (30) calendar days from
the date this decision becomes final. The agency is further directed to
submit a report of compliance, with proof of all relevant actions taken,
as provided in the Implementation paragraph 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
September 26, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
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 29 C.F.R. Part 1614 in deciding the
present request. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The Commission notes that in his appeal, complainant acknowledged that
he understood he could seek reinstatement of his complaint or enforcement
of the settlement agreement, and indicated that he sought to have the
settlement agreement enforced.