01964812
11-13-1998
Marwan Jarmakani, Appellant, v. Togo D. West, Jr., Secretary, Dept. of Veterans Affairs, Agency.
Marwan Jarmakani v. Dept. of Veterans Affairs
01964812
November 13, 1998
Marwan Jarmakani, )
Appellant, )
)
v. ) Appeal No. 01964812
) Agency No. 96-0763
Togo D. West, Jr., )
Secretary, )
Dept. of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from a final agency decision (FAD) concerning his notice
of an alleged breach of a settlement agreement (SA) on April 11, 1996.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960.001.
The issue presented is whether the agency breached the terms of a
settlement agreement (SA) when:
(1) The Chief of Radiology (CR) refused to respond to employment
reference inquiries;
(2) The CR interfered to prevent appellant from being considered for
a position in another agency institution;
(3) The Chief of Staff (CS) made his clarification to the Medical
Executive Committee that appellant had continuous good standing status
merely one single sentence, did not instruct the committee members to
inform the rest of the staff, and refused to explain when asked;
(4) The CR did not inform the Radiology Staff in writing that appellant
was a member of the Medical Staff in good standing;
(5) The CR continued to spread false information to employees at the
Medical Center that were defaming, damaging, and racist in nature;
(6) The CR made derogatory remarks about appellant in a department
meeting;
(7) The Acting Chief of Human Resources Management Service (HRMS) did
not timely restore appellant's medical insurance coverage; and (8) The
Acting Chief of HRMS did not correct the information presented to him
that appellant had been fired and did not instruct the CR, who was the
source of such information, to abide by the terms of the SA and not to
make such incorrect and damaging remarks.
Regarding appellant's breach of settlement allegation (1), on appeal,
appellant's attorney includes a letter from a prospective employer
complaining that he called the CR three times for a reference but that
the CR did not talk to him or return his calls. Regarding appellant's
breach allegation (4), appellant's attorney also alleges that no
announcement of appellant's continued good standing was made at the
Radiology Service Quality Meeting but that the minutes of the meeting
were later falsified to reflect the nonexistent announcement. However,
other than his assertions, neither appellant nor his attorney provides
any relevant substantive evidence or documentation to support any of
the remaining allegations of breach of settlement. The agency did not
respond to appellant's contentions on appeal.
In its FAD, the agency found that either appellant failed to provide
specific evidence for each of his allegations or that the agency had
documentary evidence that the specific provision of the SA had been
complied with.
The Commission notes that the letter from the prospective employer is
the only evidence in the complaint file that the SA has been breached.
While the FAD mentions that copies of letters of recommendation are
enclosed as proof that the provision concerning positive employment
references has been complied with, these are not found in the file, nor
are copies of the relevant meeting minutes. After repeated requests by
the Commission, the agency has failed to provide a complete complaint
file with specific evidence and documents supporting its findings in
the FAD. We will therefore make our determination of whether the SA was
breached on the existing file.
In this respect, we find that the letter from the prospective employer
complaining that his calls were not returned is sufficient evidence that
the SA provision calling for the agency to provide a positive reference
and respond to specific inquiries has been breached. (See paragraph 2.d
of the SA.) However, with respect to appellant's remaining allegations,
we find that appellant has failed to specify any actual events or provide
substantive evidence to support the allegations.
Whenever we determine that an agency has not complied with an SA, we have
the authority either to order such compliance or order that the complaint
be reinstated for further processing from the point processing ceased.
See 29 C.F.R. �1614.504(a). In his appeal, appellant, however, does
not indicate which alternative he wishes. Therefore, we will outline
the consequences of each course of action below.
Generally, where we have ordered the reinstatement of a complaint,
we have also required the restoration of the status quo ante, i.e.,
that a complainant does not retain any benefits received under the SA.
See Corbbrey v. Department of Veterans Affairs, EEOC Request No. 05910885
(May 7, 1992); O'Farrell v. United States Postal Service, EEOC Petition
No. 04920001 (Feb. 28, 1992). Thus, appellant would have to return
any monies received under the SA.<1> The only exception to this
would be attorney's fees paid by the agency pursuant to the SA, since
the agency's subsequent breach of the SA does not alter appellant's
status as a prevailing party as of the time he settled the complaint.
See Dailey v. Smithsonian Institution, EEOC Request No. 05950225 (July 29,
1996); Eaglin v. United States Postal Service, EEOC Request No. 05910604
(Aug. 21, 1991. Therefore, we find that appellant will not be required
to return the attorney's fees previously paid by the agency under the
SA as a precondition to the reinstatement of his complaint. Moreover,
we note that our decisions have also awarded attorney's fees under 29
C.F.R. �1614.501(e) for the successful pursuit of an appeal alleging a
breach of a SA by an agency. See Eaglin, supra; Epstein v. Department
of Health and Human Services, EEOC Appeal No. 01952695 (Mar. 11, 1997).
However, if appellant instead chooses to seek the agency's compliance
with the SA, the agency will be obligated to pay any interest on any
sums of money the agency delayed sending beyond the promised deadline.
Accordingly, we find that the agency breached one provision of the
SA. We therefore AFFIRM the FAD in part and REVERSE in part and REMAND
the FAD for compliance with the order set forth below.
ORDER
1. Within ten (10) calendar days of the date this decision becomes final,
the agency is ORDERED to provide appellant, in writing, the option of
reinstating his EEO complaint dated August 14, 1995, at the point where
processing ceased in October 1995 or of seeking the agency's specific
compliance with the terms of the SA.
2. If appellant chooses to reinstate his complaint, the agency
is ORDERED to resume the processing of his complaint from the point
where processing ceased. As a precondition to the reinstatement of his
complaint, appellant shall not be required to return any attorney's fees
paid by the agency pursuant to the SA. He will, however, be required
to return any other monies received under terms of the SA.
3. If appellant instead chooses specific performance of the SA, the
agency is ORDERED to properly implement the provisions of paragraph 2.d of
the SA within thirty (30) calendar days of receiving appellant's request.
4. Within thirty (30) calendar days of the date the agency receives
appellant's notice of his decision to seek either the reinstatement of
his complaint or specific performance of the SA, the agency shall send
to the Compliance officer referenced below copies of the agency's letter
of options to appellant and his response thereto.
ATTORNEY'S FEES (H1092)
If appellant 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 this appeal.
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 (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 (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
Nov 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1A review of the SA indicates that appellant was, in fact entitled to
receive a monetary award. See paragraph 2.e.