0120062971
05-05-2008
Ava Marshall, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Ava Marshall,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200629711
Agency Nos. 010765, 970400, 030162
DECISION
Complainant filed an appeal from the agency's March 16, 2006 final
decision concerning her equal employment opportunity (EEO) complaint.
This appeal concerns only the matter of attorney's fees in connection
with a settlement agreement dated September 30, 2005. For the following
reasons, the Commission AFFIRMS the agency's final decision.
Previously, complainant filed a complaint against the agency alleging
that the agency had failed to provide her with a reasonable accommodation
for her disability (Multiple Sclerosis), specifically, to permit her to
work from home (telework). In Ava Marshall v. Department of Agriculture,
EEOC Appeal No. 01A31773 (June 3, 2005), the Commission found that the
agency discriminated against complainant in violation of the Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. as
alleged with respect to reasonable accommodation. The agency was ordered
to provide complainant with an opportunity to establish the amount of
compensatory damages to be awarded, attorney's fees, restoration of leave
used or cash equivalent, and other equitable relief. The agency asked
the Commission to reconsider its decision in EEOC Appeal No. 01A31773,
however, before the Commission issued its decision on reconsideration,
the parties notified the Commission that they had reached a settlement.
The September 30, 2005 settlement agreement provides, in pertinent part
that:
1. To pay Complainant a lump sum of One Hundred Thousand Dollars
($100.000.00). Within thirty (30) calendar days from the effective
date of this Agreement, the Department will submit documentation to the
National Finance Center required to effect the payment of the lump-sum
amount of One Hundred Thousand Dollars ($100,000.00) to Complainant. The
Department makes no representations regarding any federal, state, or
local tax liability which maybe incurred by Complainant as a result
of this payment. Taxes will not be taken from the amount being paid
to Complainant, but the Department will report this amount to the
Internal Revenue Service. This lump-sum payment will be made by check
to Complainant [...] and Complainant's Counsel . . .
2. To pay complainant's reasonable attorney's fees, costs, and
expenses to Complainant's Counsel, not to exceed Ten Thousand Dollars
($10,000) in accordance with 29 C. F. R. � 1614.50l(e).
3. Within fifteen (15) calendar days from the effective date of the
Agreement, Complainant's Counsel will provide a fee petition in accordance
with 29 C. F. R. � 1614.501 (e) to Department's Counsel listed below
which contains a list of services rendered for Complainant's formal
complaints itemized by date, number of hours, summary of the task,
rate, and attorney's name in the form of contemporaneous time records;
and documentation of costs and expenses. The Department, with the
assistance of the Department's Counsel, will make a determination as to
the payment of reasonable attorney's fees, costs, and expenses not to
exceed Ten Thousand Dollars ($10,000.00), within thirty (30) calendar
days of receipt of the attorney's fees, costs, and expense petition
in accordance with the Laffey Matrix, the Equal Access to Justice Act,
and 29 C. F . R. � 1614.501(c).
4. Within fifteen (15) calendar days from the date of the Department
determination as to the payment of reasonable attorney's fees, costs,
and expenses not to exceed Ten Thousand dollars ($10,000.00). The
Department will submit documentation to the National Finance Center
required to effect the payment of the amount stated in the Department's
determination, not to exceed Ten Thousand Dollars ($10,000.00) . . . .
5. In accordance with 29 C.F.R. � l614.501(e)(2)(ii)(A), the
Department's determination as to the reasonableness of attorney's fees,
costs, and expenses not to exceed Ten Thousand Dollars ($10,000.00)
will include a notice of right to appeal to the EEOC along with EEOC Form
573, Notice of Appeal/Petition and will include the specific reasons for
determining the amount of the award not to exceed Ten Thousand Dollars
($10,000.00).
The settlement agreement is signed by complainant, her attorney and
two agency representatives. Complainant later submitted to the agency,
a petition for attorney's fees and costs, dated January 13, 2006.
The verified fee petition requests a total payment of $154,204 for
attorney's fees and costs, and states at the outset of the petition that:
All fees are associated with all causes, claims and complaints
as listed in the Marshall/RD/USDA Settlement Agreement.
The Agreement incorporates all and all are billed.
The agency issued a final decision dated March 15, 2006, regarding
complainant's request for attorney's fees and costs. Therein, the agency
acknowledged that the terms of the settlement agreement of September
30, 2005, provided that complainant would be paid the sum of $10,000 at
most for all attorney's fees and costs. The agency declined to pay any
additional sums requested.
On appeal, complainant requests additional time to submit her brief
in support for the reason that communication between complainant and
complainant's attorney has been hampered by complainant's deteriorating
medical condition, exacerbated by the agency's discriminatory actions.
Complainant, through counsel, claims that the settlement agreement of
September 30, 2005, was executed while complainant was under severe
distress, that she was coerced into signing it and that the agreement
was not achieved at arm's length. Complainant, through counsel, adds
that her attorney is presently under medical care and requires additional
time to submit supporting evidence to support complainant's appeal.2
ANALYSIS AND FINDINGS
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 intent, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990).
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). A settlement agreement may be void,
or voidable, if one of the parties establishes that assent was obtained
by duress or coercion. See Mosley v. St. Louis Southwest Railroad, 634
F.2d 942 (5th Cir. 1981); Hodge v. Department of the Army, EEOC Appeal
01954577, (December 7, 1995).
As an initial matter, we note that complainant does not allege that the
terms of the agreement were breached. Instead, complainant contends that
the agreement with respect to attorney's fees should be, essentially,
voided because she was coerced into signing the agreement. The Commission
examines coercion claims with close scrutiny. The party raising the
defense of coercion must show that there was an improper threat of
sufficient gravity to induce assent to the agreement and that the assent
was in fact induced by the threat. Such a threat may be expressed,
implied or inferred from words or conduct, and must convey an intention
to cause harm or loss. A complainant's bare assertions will not justify
a finding of coercion. Lenihan v. Department of the Navy, EEOC Request
No. 05960605 (December 5, 1995).
In the instant case, we find the plain language of the settlement
agreement calls for payment of attorney's fees and costs in an amount not
to exceed ten thousand dollars. We find that complainant was represented
by counsel at the time she signed the agreement. There is no evidence
of coercion surrounding the entering of the agreement. Accordingly we
find the agreement was not the product of undue persuasion or duress.
We AFFIRM the agency's final order regarding the award of attorney's
fees and costs in the amount of $10,000.00.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 5, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above- referenced appeal number.
2 As of April 15, 2008, no brief in support of complainant's appeal had
been received by the Commission.
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0120062971
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062971