07a50102
10-05-2005
Henry E. McKinnon, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice (Bureau of Prisons), Agency.
Henry E. McKinnon v. Department of Justice
07A50102
October 5, 2005
.
Henry E. McKinnon,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice
(Bureau of Prisons),
Agency.
Appeal No. 07A50102
Agency Nos. P-2001-0087, P-2002-0103
Hearing Nos. 170-A2-8129X, 170-A2-8432X
DECISION
Concurrent with its May 5, 2004 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
The agency requests that the Commission affirm its rejection of an
award of attorney fees and costs under Title VII of the Civil Righst
Act of 1964, as amended, 42 USC � 2000e et seq., as calculated by an
EEOC Administrative Judge (AJ).
The record reflects that complainant filed two formal EEO complaints
containing a total of four claims of discriminatory conduct by the
agency, pertaining to a performance appraisal, a reassignment, and
harassment (two counts). At the conclusion of the investigations,
complainant requested a hearing before an AJ on each of the complaints.
The complaints were consolidated and assigned to an AJ. Subsequently,
the claim related to the performance appraisal was dismissed.
Prior to a hearing being held, on October 31, 2003, the parties entered
into a written settlement agreement to resolve complainant's remaining
three claims. In addition to providing complainant with �a lump sum
payment of $12,000 without any deductions, in full compromise of any
and all claims for compensatory damages and costs,� the agreement also
stated, �This agreement does not prevent the complainant from seeking
attorney's fees, not to exceed $20,000, pursuant to 29 C.F.R. � 1614.501.�
Complainant's attorney subsequently submitted a fee petition requesting
attorney's fees in the amount of $24,414 plus $579.19 in costs.
The agency objected to this amount on several grounds: that the amount
requested exceeded the amount provided for in the settlement agreement;
that the fee petition was too vague to support the amount requested; that
the time expended on certain matters was unreasonable given the attorney's
experience; and that complainant had already been compensated for costs.
The agency proposed attorney's fees in the amount of approximately
$12,000, denying the requested costs as having been included in the
lump-sum award of �compensatory damages and costs.� Because the parties
could not agree on the amount to be awarded, the matter was referred to
the AJ.
In a decision dated March 24, 2004, the AJ reviewed the fee petition in
detail and awarded complainant attorney fees in the amount of $23,487.75,
plus costs in the amount of $572.19.<1> Of particular note, the AJ
allowed 10.3 hours spent to prepare the motion in opposition to the
agency's motion to dismiss the claim pertaining to the performance
appraisal.
The agency subsequently issued a final agency order declining to fully
implement the AJ's decision. On appeal, the agency argues, inter alia,
that any award of attorney fees and costs should be reduced to account for
a claim that was dismissed prior to execution of the settlement agreement.
Complainant has submitted no argument in opposition to the appeal.
In this case, complainant's claims were resolved by a settlement
agreement which provided, in relevant part, that complainant could request
attorney's fees up to the amount of $20,000, i.e., that attorney's fees
payable would be capped at $20,000. There also is no dispute that the
parties agreed to allow the AJ to resolve the dispute in the actual amount
of fees payable. There is no indication, however, that the parties in
any way intended to or did waive the cap on the total amount of fees
which could be awarded.<2>
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 O 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 Engineering Services Co., 730 F.2d 377 (5th Cir. 1984).
The Commission finds that based upon the plain language of the settlement
agreement, the amount of attorney's fees payable was capped at $20,000.
Although the agency argues on appeal that the award of attorney's fees
should be further reduced, there is no dispute that the parties agreed
to allow the AJ to resolve any disagreement between them regarding the
amount of fees to be awarded, up to the amount of $20,000.
With regard to whether costs are payable, the Commission notes that the
settlement agreement placed costs together with compensatory damages,
to be settled with a lump-sum payment of $12,000. The terms of the
settlement agreement with regard to attorney's fees were silent as to
costs. Accordingly, the Commission finds that costs were not payable
as part of the attorney's fees. In any event, even if costs are back
out of the calculations, the AJ's findings still support an award of
attorney's fees up to the cap amount.
Based upon the foregoing, and after a careful review of the record,
it is the decision of the Equal Employment Opportunity Commission to
REVERSE the final agency order, and to award attorney's fees in the
amount of $20,000 as set forth in the Order of the Commission, below.
ORDER
The agency is directed to take the following remedial action:
Within thirty (30) days of the date on which this decision becomes final,
the agency shall tender to complainant's attorney fees and costs in the
amount of $20,000.
The agency shall submit evidence of its compliance with this Order,
as referenced in the below-entitled paragraph �Implementation of the
Commission's Decision.�
ATTORNEY'S FEES<3> (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (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
October 5, 2005
__________________
Date
1This amount appears to be a typographical error, given that the AJ took
no deductions from costs in his decision.
2The AJ does not address the discrepancy between the amount of the cap
and the amount of fees and costs he awarded.
3It appears that complainant's attorney has expended a minimal amount of
time for further professional services in connection with the instant
appeal. Because he has obtained a larger measure of relief than was
initially proposed by the agency, he is entitled to additional reasonable
fees and costs in connection with those services.