James H. Low, Appellant,v.John H. Dalton, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 23, 1998
01982661 (E.E.O.C. Oct. 23, 1998)

01982661

10-23-1998

James H. Low, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.


James H. Low v. Department of the Navy

01982661

October 23, 1998

James H. Low, )

Appellant, )

)

)

v. ) Appeal Nos. 01973387,

) 01982661

) Agency No. 96-62661-001

John H. Dalton, )

Secretary, )

Department of the Navy, )

Agency. )

___________________________________)

DECISION

INTRODUCTION

James H. Low (appellant), by and through his attorney, initiated

several appeals to the Equal Employment Opportunity Commission (EEOC or

Commission) alleging the Department of the Navy (agency) had violated

the provisions of a written agreement which had settled his complaints

of unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> The

Commission hereby accepts these appeals in accordance with EEOC Order

No. 960.001.

ISSUE PRESENTED

The issue on appeal is whether the agency breached the settlement

agreement entered into by the parties.

BACKGROUND

The record establishes that this matter arose when appellant (Caucasian

male) filed a number of EEO complaints with the agency alleging his

female supervisor had engaged in an ongoing pattern of discrimination

against him. Appellant was represented in these matters by an attorney.

The attorney has asserted that he commenced work on appellant's

case on October 17, 1995. Shortly thereafter, the attorney started

an investigation, including discovery, into appellant's claim, and

presented the agency with a written settlement proposal in May 1996.

At that time, the agency did not reply or counteroffer.

Thereafter, appellant requested a hearing on his complaints, and his

attorney continued to engage in discovery and hearing preparation.

It appears that several disputes occurred during this period with the

agency concerning appellant's requests for official time to prepare for

the hearing. The hearing was held on August 15 and 16, and September

4, 5 and 6, 1996, before an EEOC administrative judge (AJ), and was

scheduled to recommence on December 11, 1996. During the break in

the hearing, the parties entered into settlement negotiations, meeting

both in person and over the telephone. It appears that an agreement

was tentatively reached on November 4, 1996, pending documentation of

appellant's attorney's claim for reasonable attorney's fees.

Shortly thereafter, counsel submitted to the agency a detailed billing

statement of his work on the case through November 4, 1996, in the amount

of $104,487.25. Upon receipt of this statement, on November 21, 1996,

the agency issued a "final offer", which appellant asserts differed

materially from the previously negotiated agreement, especially with

regard to the provision of attorney's fees. At this point, it appears

that settlement negotiations broke down and the parties continued

to prepare for the continuation of the hearing, which recommenced on

December 11, 1996.

However, on December 12, 1996, settlement discussions started again,

and on December 13, 1996, the parties executed a written settlement

agreement. The agreement provided, in pertinent part, that, in exchange

for withdrawing his complaints, the agency agreed to: (A) restore all

officially documented leave used due to job-related stress which had

not been reimbursed by workers' compensation, as well as "buy back"

certain leave outstanding in appellant's workers' compensation claim;

(B) reimburse appellant for $600 of out-of-pocket medical expenses;

(C) reimburse appellant for the five and ten-day suspensions; (D)

expunge the five and ten-day suspensions from appellant's personnel

records; (E) raise appellant's performance rating to an "Outstanding"

and give him a $500 award with interest; (F) restore appellant to a

GS-12 position with a new position description; (G) grant appellant

long-term, work-related training opportunities (paid for by the agency up

to $10,000) from January 1, 1997 through December 31, 1997, with the first

six months devoted solely to training, rather than work, responsibilities;

(H) reimburse appellant for the professional fees incurred for an expert

witness in an amount not to exceed $1,850; (I) pay appellant $25,000

in compensatory damages; and (J) pay appellant's counsel $25,000 in fees

and costs for his representation of appellant in this matter.

EEOC Appeal No. 01973387

In addition to the provision for payment of $25,000 in attorney's fees

and costs, the settlement agreement between appellant and the agency

provided that counsel:

. . . may submit his legal fee billing statement to the Department of

the Navy for a decision as to whether his claimed attorney's fees are

reasonable and customary under the applicable rules, regulations and

case law.

. . . Moreover, [counsel] may then exercise his right to appeal the

Department of the Navy's decision to the EEOC.

On January 10, 1997, counsel, pursuant to the above-described provision

of the settlement agreement, submitted to the agency an application for

attorney's fees and costs in the amount of $132,402.75. In support of

his application, counsel presented an affidavit and verified statement

of the fees and costs (including a 22-page itemization of the services

provided), as well as the affidavit of another attorney who assisted

in the preparation of the application. The record on appeal does not

contain this application, including the billing statement. Therefore,

while the record does reflect that counsel was requesting an hourly

rate of $225 for himself and $60 per hour for his paralegal, there is no

record of the number of hours requested and what service were performed

during those hours.

The only response by the agency to this application for attorney's fees

and costs is a letter dated February 13, 1997, in which the agency's

representative stated:

. . . I have received your complete billing statement for the remaining

outstanding legal fees you believe you are entitled to be paid. I am

assuming that this is [for] my packet, for the settlement agreement

states that you will appeal the Agency's decision regarding your legal

fees to the EEOC.

The agency never issued a further decision ruling on counsel's entitlement

to attorney's fees and costs beyond the $25,000 provided for in the

settlement agreement. On March 6, 1998, the agency issued appellant

a check for $25,000 for his attorney's fees and costs. In EEOC Appeal

No. 01973387, appellant asserts that the agency violated the terms of

the settlement agreement by failing to make a decision on counsel's

application for additional attorney's fees and costs in accordance with

applicable rules, regulations and case law.

EEOC Appeal No. 01982661

In EEOC Appeal No. 01982661, appellant claimed the agency was further

violating the terms of the settlement agreement by failing to implement

any of its terms. The agency responded to this appeal with a motion to

dismiss on the grounds that the matter was pending before an arbitrator.

As background, the record indicates that the settlement agreement

expressly provided that the parties would keep its terms confidential,

except as necessary to ensure implementation or as required by law.

The agreement stated that allegations that the confidentiality clause

had been breached would be brought before an independent arbitrator

selected from the American Arbitration Association, to fashion a

appropriate remedy, including the voiding of the agreement. In late

January 1997, the agency took the position that appellant had breached the

confidentiality clause and ceased its implementation of all provisions of

the settlement agreement until the matter could be heard by an arbitrator.

By letter dated February 27, 1997, appellant notified the agency that he

considered them in breach of the settlement agreement. In April 1997,

the agency responded by filing a complaint with the American Arbitration

Association asserting the agreement should be voided because appellant

had allegedly breached the confidentiality clause.

During the processing of this appeal, the Commission received notice

that, on December 22, 1997, the agency voluntarily withdrew its

pending arbitration complaint, and committed itself to implementing

all outstanding terms of the settlement agreement within ninety days.

In a letter dated April 1, 1998, appellant informed the Commission that

the agency was in partial compliance with the terms of the settlement

agreement. The parties now appear to agree that by March 1998, the

agency had issued appellant a check for $28,050.53, which represented

payment for $25,000 in compensatory damages, $600 in medical costs,

a $500 performance award with an additional $100.53 in interest, and

$1,850 in payment for appellant's expert witness. As already noted,

the agency also issued appellant a second check at the same time in the

amount of $25,000 for his attorney's fees and costs. In addition, the

parties agree that the agency rescinded the suspensions and expunged them

from appellant's record, changed appellant's performance rating to an

"Outstanding", and relieved him of his work responsibilities for eight

months to pursue training opportunities.

However, appellant continues to contend that the agency has failed to

implement other terms of the settlement agreement. First, with regard to

the training, appellant asserts the agency failed to approve all but one

of his training courses for payment, despite setting aside $10,000 for his

training, and has not yet paid the $900 fee for the one approved course.

Second, appellant claims the agency has not yet properly restored his

leave used due to job-related stress, including implementation of the

"buy back" provision. Third, appellant states he has not received

any backpay as result of the cancellation of his transfer to a GS-9

position and his restoration to the GS-12 level. Finally, appellant

asserts that agency has not paid his full attorney's fees and costs in

the amount of $132,402.75. On appeal, appellant has requested that the

Commission order the agency to immediately comply with all terms of the

settlement agreement. Beyond filing its motion to dismiss, the agency

has not responded to appellant's appeal.

ANALYSIS AND FINDINGS

EEOC regulation 29 C.F.R. � 1614.504(a) provides that any settlement

knowingly and voluntarily agreed to by the agency and an EEO complainant

shall be binding on both parties. The Commission has jurisdiction to

adjudicate allegations by the complainant that the agency has failed

to comply with such a settlement agreement. 29 C.F.R. �1614.504(b).

EEOC regulations clearly permit a complainant to file an appeal with

the Commission 35 days after he or she has served the agency with

allegations of noncompliance, even if the agency has not yet rendered a

final decision on those allegations. 29 C.F.R. �1614.504(b). The appeals

in the instant matter comply with this regulation.<2>

In interpreting settlement agreements, the Commission has applied the

contract principle known as the "plain meaning rule", which holds that

where a writing is unambiguous on its face, its meaning is determined

from the four corners of the instrument without resort to extrinsic

evidence. Smith v. Defense Logistics Agency, EEOC Appeal No. 01913570

(December 2, 1991); see also Montgomery Elevator Co. v. Building

Engineering Service, 730 F.2d 377 (5th Cir. 1984).

Attorney's Fees - EEOC Appeal No. 01973387

The settlement agreement's provisions for payment of appellant's

attorney's fees and costs are clear. The agreement provided that the

agency would pay $22,500 in attorney's fees (100 hours x $225/hour)

and $2,500 in costs. As of March 1998, the agency was in compliance

with this provision. However, the agreement went on to provide that

appellant's counsel could submit an application to the agency for any

fees incurred above the $25,000. That application was to be processed

by the agency pursuant to applicable rules, regulations and case law

governing attorney's fee claims. The agreement further provided a right

of appeal to this Commission.

The record is clear that appellant's counsel filed a timely application

for additional attorney's fees. It is also clear that the agency never

processed that application or rendered a decision on the reasonableness of

it as required by the settlement agreement. The Commission's regulations

at 29 C.F.R. �1614.501(e)(2)(ii)(A) require the agency to issue a

decision determining the amount of attorney's fees within 30 days of

receipt of a verified statement from counsel of the requested fees.

The agency has conceded that it received the fee application, but

declined to determine what amount, if any, should be paid to counsel.

The agency has provided no explanation in the record for its failure

to comply with the terms of the settlement agreement which required it

to issue a decision on counsel's claim for additional fees. Therefore,

the Commission finds the agency in noncompliance with the terms of the

settlement agreement, and will order the agency to immediately issue

any additional payment to appellant for attorney's fee and costs to be

determined by multiplying the number of hours reasonably expended on

these matters by a reasonable hourly rate. See Hensley v. Eckerhart,

461 U.S. 424 (1983); 29 C.F.R. �1614.501(e).

Other Terms of the Settlement Agreement - EEOC Appeal No. 01982661

The record also contains no evidence that the agency has, as required by

the terms of the settlement agreement, restored to appellant the leave

he used "due to job related stress as documented by the Department of the

Navy payroll office, which is not covered by [his] Worker's Compensation

complaint." There also is no record that appellant has received a backpay

award for any salary reduction that occurred prior to the restoration

of his GS-12 grade level or for any loss of pay resulting from the five

and ten-day suspensions which were revoked. Finally, appellant has not

been reimbursed for $900 spent on training pre-approved by the agency

pursuant to the settlement agreement. In addition, appellant asserts

the agency refused to approve other training courses despite language in

the settlement agreement which set aside $10,000 to pay for appellant's

participation in "work-related education and/or training programs."

The agency has offered no explanation for its failure to comply with

these terms of the settlement agreement. Therefore, the Commission

finds the agency in breach of that agreement and will order the agency

to immediately comply with all outstanding obligations.

CONCLUSION

Accordingly, after careful review of the record and for the reasons stated

above, the Commission has determined that the agency has breached the

December 13, 1996 settlement agreement between the parties. To correct

this breach, the agency shall immediately comply with the terms of that

agreement in accordance with the following Order.

ORDER

Within thirty (30) calendar days of the date this decision becomes final,

the agency shall:

(1) issue appellant a final agency decision and appropriate payment

on his claim for attorney's fees and costs above the $25,000 already

provided by the agency based on the information submitted in January

1997 in counsel's fee application;

(2) restore to appellant all officially documented leave he used due to

job-related stress as documented by the Department of the Navy payroll

office, which was not covered by his workers' compensation complaint,

and "buy back" the remaining 25% still outstanding under his workers'

compensation claim (#01-0329832, CA-7);

(3) issue appellant a check representing backpay, plus interest, for

any salary reduction that occurred prior to the restoration of his

GS-12 grade level or for any loss of pay resulting from the five and

ten-day suspensions which were revoked;

(4) issue a final agency decision explaining in detail the calculations

made to implement paragraphs (2) and (3) of this Order;

(5) issue appellant a check for $900, plus interest, as reimbursement

for the cost of training pre-approved by the agency;

(6) provide appellant the opportunity to seek reimbursement (up to

$9,100) for any other work-related education and/or training programs

he participated in during the eight-month period he was on long-term

training status, and provide appellant with a written justification

for any denial of reimbursement; and

(7) provide appellant with an award of reasonable attorney's fees

and costs for the successful processing of these appeals pursuant to,

and within the timeframes detailed in, 29 C.F.R. �1614.501(e).

A copy of all documentation effectuating this Order, as well as any

final decisions or written explanations provided pursuant to this Order,

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. � l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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 an action in an appropriate

United States District Court. It is the position of the Commission

that 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. You should be aware, however, that

courts in some jurisdictions have interpreted the Civil Rights Act of

1991 in a manner suggesting that a civil action must be filed WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision.

To ensure that your civil action is considered timely, you are advised to

file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive

this decision or to consult an attorney concerning the applicable time

period in the jurisdiction in which your action would be filed. In the

alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)

CALENDARS 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 (Z1092)

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:

Oct 23, 1998

__________________ _______________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1 These appeals have been docketed as EEOC Appeal Nos. 01973387 and

01982661. For clarity, the Commission has decided to consolidate the two

appeals for a single decision because they both raise claims that the

agency violated the provisions of the same settlement agreement.

2 The Commission notes that the agency's motion to dismiss

appellant's appeals has been mooted by the agency's December 1997

withdrawal of its arbitration complaint. Therefore, there is no longer

any need to rule on this motion.