01A03543_r
10-09-2002
Frances T. Manley, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Frances T. Manley v. Department of State
01A03543
October 9, 2002
.
Frances T. Manley,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01A03543
Agency No. 96-37
Hearing No. 100-98-7767X
DECISION
Complainant appeals to the Commission for a determination as to whether
the agency has complied with the terms of a settlement agreement which
the parties entered into on October 28, 1999.
The October 28, 1999 settlement agreement provided, in pertinent part,
that:
4. The Department agrees to promote Complainant retroactively to GS-13
for a period of one year effective on the first day of the pay period
that includes January 31, 1995. Complainant agrees to waive back pay
under 5 C.F.R. Subpart H.
5. The Department will pay Complainant $5,000 in full settlement of
her claimed compensatory damages.
6. The Department will pay Complainant attorney's fees, in accordance
with applicable law and regulation, in an amount not to exceed $6,500.
Complainant's attorney shall provide the documentation supporting the
claimed attorneys fees as specified in 29 C.F.R. � 1614.501 to the
Department's Director of Equal Employment Opportunity and Civil Rights.
By letter dated February 3, 2000, complainant's attorney alleged that the
agency did not comply with the terms of the October 28, 1999 agreement.
Specifically, the attorney alleged that the agency breached provisions
(4), (5), and (6) of the October 28, 1999 agreement.
In its response letter dated March 2, 2000, the agency stated that
all necessary steps were being taken to fulfill the terms of the
October 28, 1999 agreement. Specifically, the agency stated that the
agency recently received the documents necessary for the processing of
complainant's retroactive promotion and has expedited the processing
of her promotion. Further, the agency stated that complainant was
mailed copies of the completed personnel actions on February 11, 2000.
Regarding provisions (5) and (6) of the agreement, the agency claimed
that on February 14, 2000, compensatory damages in the amount of $5,000
were mailed to complainant's P.O. Box address. The agency also claimed
that on February 14, 2000, a payment of $6,500 in attorney's fees was
electronically deposited in complainant's attorney's firm account.
Finally, the agency concluded that the implementation of the agreement
was done in a timely manner and denied complainant's attorney's request
for additional attorney's fees.
On appeal, complainant's attorney argues that the SF-50 issued by the
agency in compliance with provision 4 reflects that the promotion is the
result of an EEO settlement agreement; that the promotion approval date
is contemporary, rather than identified as 1995; that it makes reference
to �exept.comp;� that the agency signatory is the current official,
and not the official in place in 1995; and that it shows �NTE� 1/96.
Complainant's attorney also argues that the agency should be required
to pay complainant for attorney's fees and costs incurred in connection
with the notice of non-compliance and the instant appeal.
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).
Complainant's attorney argues on appeal that complainant's current PS
Form-50 Notification of Personnel Action places her at a disadvantage
because it is obvious that her retroactive promotion resulted from an
EEO complaint. Specifically, the attorney argues that any personnel
officer receiving her application would know that her retroactive
promotion was only a "paper transaction" putting her at a disadvantage for
promotion purposes. The Notification of Personnel Action has an approval
date of February 11, 2000, and an effective date of January 21, 1996.
We agree with complainant's attorney. The four-year disparity in dates
between the approval date and the effective date of the promotion should
be corrected.<1>
Regarding provisions (5) and (6) of the settlement agreement, the
Commission finds that a fair reading of complainant's appellate brief
and the agency's statement on appeal dated March 2, 2000, reflects that
$6,500 has been paid in attorney's fees and that $5,000 had been paid to
complainant for compensatory damages. Therefore, the Commission finds
that the agency did not breach provisions (5) and (6) of the agreement.
Finally, we note complainant's request for additional attorney's
fees incurred in connection with the notice of non-compliance of the
settlement agreement. By federal regulation, an agency shall award
attorney's fees and costs for the successful processing of an EEO
complaint in the administrative process. See 29 C.F.R. � 1614.501(e).
A prevailing party for purposes of entitlement to attorney's fees is
one who succeeds on any significant issue in litigation which achieves
some of the benefit the party sought in brining the suit. See Nadeau
v. Helgemoe, 581 F.2d 275, 278-9 (1st Cir. 1978).
In the instant case, we find that complainant is not entitled to the
additional attorney's fees and costs requested on appeal. Complainant
has received no increase in benefits as a result of the work done by
her attorney on the breach claim, i.e., more than that to which she was
entitled under the settlement agreement. See Carroll v .Department of
Veterans Affairs, EEOC Appeal No. 01990920 (April 17, 2002).
Accordingly, the agency's finding that the agency did not breach
provisions (5) and (6) of the settlement agreement is AFFIRMED.
The agency's finding that the agency did not breach provision (4) is
REVERSED and the matter is REMANDED to the agency for further processing,
in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following action:
Within thirty days of the date that this decision becomes final, the
agency shall change complainant's Standard Form 50 Notification of
Personnel Action to reflect that the effective and approval dates are
contemporaneous, and to reflect that complainant was promoted to the
GS-13 grade level for a period not to exceed the first day of the pay
period that includes January 31, 1995.
The agency is further directed to submit a report of compliance as
provided for in the section below, entitled �Implementation of the
Commission's Decision.� The report shall include documentation verifying
that the corrective action has been implemented.
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.
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 (T0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 9, 2002
__________________
Date
1The Commission determines, however, that the agency did not breach
provision (4) regarding other purported improprieties in the preparation
of the Notification of Personnel Action, i.e., that it makes reference
to �exept. comp.� or that the agency signatory is the current official
and not the official in place in 1995.