04a10010
08-17-2001
William L. Thomas, Petitioner, v. The Smithsonian Institute, Lawrence Small, Secretary, Agency.
William L. Thomas v. Smithsonian Institute
04A10010
08-17-01
.
William L. Thomas,
Petitioner,
v.
The Smithsonian Institute,
Lawrence Small,
Secretary,
Agency.
Petition No. 04A10010
Appeal No. 01965078
Request No. 05970889
Agency No. 96-01-101295
DECISION ON A PETITION FOR ENFORCEMENT
On November 14, 2000, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in William L. Thomas v. Smithsonian Institution,
EEOC Request No. 05970889 (September 25, 2000). This petition for
enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503.
BACKGROUND
Petitioner filed an EEO complaint alleging discrimination based on race
(Caucasian), sex (male), age (over 40), and disability (degenerative
arthritis and lower extremity thrombophlebitis) when he was deemed
ineligible for a certain position. Thereafter settlement negotiations
commenced and an oral agreement was reached. The terms provided that the
agency would immediately announce petitioner's retirement and he would
vacate his office at that time, receive approximately sixteen months of
paid administrative leave and actually retire on June 27, 1997, receive
$60,000 dollars in compensatory damages, and $10,000 in attorney's fees.
Another provision covered outside employment.
The agency announced petitioner's retirement and he vacated his
office on February 23, 1996. He commenced administrative leave, but
was informed in March 4, 1996, that the agency would not execute the
agreement and that he should return to work. When petitioner returned,
he was informed that his previous position had been abolished and he was
given unassigned duties. Petitioner sought enforcement of the settlement
agreement and the agency issued a decision finding that there was never
an enforceable contract. Petitioner appealed to the Commission.
The Commission decision in request No. 05970889 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 petitioner
altered his position in reliance on the agreement, and found petitioner'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.
The agency requested reconsideration, and submitted a copy of a written
settlement agreement prepared by its Office of Human Resources. The terms
were similar to those presented by petitioner, with the exception that
petitioner would be in an excused absence status until June 27, 1997.
The Commission denied the agency's request, but re-examined the provision
regarding the sixteen months of paid administrative leave because the
time period for performance of that provision had passed. The Commission
assumed that the provision was intended to enable complainant to retire
with thirty years of service. The Commission based this assumption on the
agency's announcement of complainant's retirement, which referenced thirty
years of service, and petitioner's SF-171 which indicated that he had
three years of military service and commenced his federal employment in
1970. Because petitioner continued employment with the agency beyond the
agreed retirement date, the Commission found that any further provision
of excused absence or administrative leave would no longer serve its
intended purpose. As such, the Commission did not order the agency to
comply with that provision.
On October 18, 2000, petitioner contacted the Commission to argue that
its Denial of Reconsideration contained an erroneous assumption which led
to the deletion of a significant portion of the relief contained in the
original settlement agreement. Petitioner argues that the Commission
erred when it concluded that the leave provision was intended to
permit him to retire with thirty years of service. Petitioner states
that he spent ten years in the agency's Trust Department, which is not
included in federal service, and that he will not meet minimum eligibility
requirements for voluntary retirement under the Civil Service Retirement
System until he reaches age sixty on January 13, 2002. He states that
the earlier retirement date in June 1997, was based on the fact that,
in February 1996, the agency had �buy out� authority which they do not
have now. Petitioner states that he agreed to formally retire on June
30, 1997, because he had secured non-conflicting private employment to
help support his family. He argues that deleting the administrative
leave substantially alters the original agreement which the Commission
otherwise upheld.
The Commission docketed petitioner's arguments as a Petition for
Enforcement. The agency maintained that there was never a meeting of
the minds leading to an agreement in February 1996, but concurred with
petitioner that the Commission's assumption regarding the purpose of the
sixteen months of leave was incorrect. The agency submitted a statement
from an agency official involved in the settlement negotiations who
stated that the June 1997 date was selected because petitioner would then
be fifty five years old and could retire without suffering any penalty
reduction in his retirement annuity. The agency added that petitioner's
statement that he agreed to retire early because the agency had �buy
out� authority in 1996, and he secured other employment is irrelevant
and unsupported by any evidence.
The agency argued that petitioner's intent in February 1996, was to
retire on June 27, 1997. The agency noted that complainant was employed
by the agency during the period February 1996 through June 1997, and
was fully compensated, and that to now award him administrative leave
for those months would amount to a windfall of over $180,000.
Petitioner responded that the agreement did represent a meeting of the
minds, that an agency official first proposed the period of administrative
leave, and that he suffered embarrassment and humiliation when he returned
to the agency in March 1996, after his retirement was announced two
weeks earlier. Petitioner also argues that he lost retirement benefits
while working in the Trust Division for ten years.<1>
The agency responded that the leave provision is moot because complainant
is now fifty nine years old and no longer needs a period of leave prior
to retirement to allow him to become old enough to avoid any monetary
penalty. The agency argues that the method of retirement contemplated
by the purported agreement in 1996 was involuntary discontinued service
retirement (IDSR) which is the retirement method the agency now seeks to
effect complainant's retirement. The agency notes that complainant's
argument that he lost ten years of Federal service while employed in
the Trust Division is irrelevant, and added that complainant received
significant retirement contributions to the TIAA-CREF retirement system
while working there.
On December 11, 2000, the agency petitioned the Commission for an order
of specific performance requiring complainant to immediately submit his
resignation. The agency argued that it is in full compliance with the
Commission's September 26, 2000 Order, having paid $73,888 to complainant
in compensatory damages and interest, and $27,314 in attorney's fees
and interest. Alternatively, the agency requests reinstatement of
complainant's original complaint filed in October 12, 1995.
Petitioner also filed an application for additional attorney's fees
with the Commission which was addressed in Appeal No. 01A12636 (June 20,
2001). In that decision, the Commission awarded petitioner $40, 609 in
attorney's fees but did not address the $10,000 originally granted by
the settlement agreement at issue herein, as well as fees accrued just
prior to and since the Commission's issuance of its decision on Request
No. 05970889 (September 25,2000).
ANALYSIS AND FINDINGS
The Commission previously found that a settlement agreement existed
because of petitioner's detrimental reliance on and partial performance of
its terms. The Commission now takes notice of petitioner's argument and
the agency's concurrence that the Order in the prior decision was based
on an erroneous assumption as to the intent of the parties regarding
the sixteen months of leave and herein clarifies its Order.
The Commission, relying on information in the record, determined that
the June 1997 date was selected so that petitioner would have thirty
years of service. Both petitioner and the agency agree that this is not
the real reason. Petitioner argues that it was so that he could take
advantage of a buy out authority and because he had another employment
opportunity available. The agency argues that the June 1997 date was
selected because petitioner would then be 55 years old and could retire
without suffering any penalty. Thus, while the parties plainly agreed
that petitioner was to retire on June 27, 1997, at age fifty five,
the time for such performance has passed. Petitioner is now fifty nine
years old. Therefore, the Commission finds that we must again review
the record and the arguments presented herein to determine the parties'
intentions.
We note the agency's argument that petitioner's retirement in June
1997, at age fifty five, was planned so that he could retire under the
IDSR system without any monetary penalty or loss of annuity benefits.
The agency notified complainant on November 20, 2000, that IDSR allows
him to retire prior to the age of sixty with less than thirty years of
federal service, that he meets the age and length of service requirements
of IDSR at this time, as he did in 1997, and that his retirement was
being effected under IDSR procedures rather than optional or voluntary
retirement so as not to affect his retirement benefits. The agency
included estimates of complainant's retirement annuity based upon
immediate retirement and a retirement date of January 31, 2002, when
he would be sixty years old. The annuity for the later retirement
date was $460 greater. Given that the agency admits that the initial
agreement was that petitioner could retire without any monetary penalty
or benefits, we find that it is appropriate for the agency to place
complainant on administrative leave so as to enable him to retire with
full benefits, effective January 31, 2002. There is no point in now
penalizing petitioner by forcing him to retire at this time, only a
few months away from realizing an additional $460 a month, in that the
original intention was that he receive full benefits. As such, petitioner
is entitled to any administrative leave needed to enable him to retire
on January 31, 2002 without using his accrued leave.
With respect to the matter of attorney's fees, the Commission finds
that petitioner is entitled to $10,000 as set forth in the settlement
agreement. This $10,000 is in addition to the $40,609 awarded in Appeal
No. 01A12636. The $40,609 included work on petitioner's initial appeal
to the Commission, as well as work done with respect to the request for
reconsideration. In addition, we note that information in the record
indicates that petitioner's attorney sought additional fees in the amount
of $2,312 for work done in 2000 and primarily since the issuance of
Request No. 05970889. This work includes status calls, conferring with
petitioner regarding the decision on the request for reconsideration,
and filing the instant petition for enforcement. We find the amount is
reasonable and that petitioner's attorney is entitled to such fees. See
Black v. Dept. of the Army, EEOC Request No. 05960390 (December 9, 1998).
ORDER
The parties are Ordered to comply with the following:
(1) Petitioner shall be placed on administrative leave so as to ensure
his retirement effective January 31, 2002. Petitioner shall submit the
needed paperwork to ensure that his retirement is timely processed.
(2) If it has not already done so, the agency shall pay petitioner the
sum of $60,000 in compensatory damages, plus interest within sixty (60)
days of the date on which this decision becomes final.
(3) The agency shall pay attorney's fees directly to petitioner's
attorney in the amount of $10,000, plus interest, as part of the original
settlement agreement.
(4) The agency shall also pay directly to petitioner's attorney reasonable
attorney fees in the amount of $2,312 for work done during the year
2000 and since the the issuance of Request No. 05970889. The agency
shall tender the payments for attorney's fees no later than sixty (60)
calendar days after the date on which this decision becomes final.
(5) Petitioner 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.
(6) Paragraphs 7-12 of the agency's copy of the settlement agreement
submitted to the Commission and dated February 22, 1996 are incorporated
herein.
(7) 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 ninety (90) 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 (K0501)
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)
(1994 & Supp. IV 1999). 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.
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
___08-17-01_______________
Date
1This issue is not a part of the settlement agreement and will not be
addressed herein.