Henry E. McKinnon, Complainant,v.Alberto Gonzales, Attorney General, Department of Justice (Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionOct 5, 2005
07a50102 (E.E.O.C. Oct. 5, 2005)

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.