Kasturi Basu, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionApr 8, 1999
01970460 (E.E.O.C. Apr. 8, 1999)

01970460

04-08-1999

Kasturi Basu, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Kasturi Basu v. Department of Agriculture

01970460

April 8, 1999

Kasturi Basu, )

Appellant, )

)

v. ) Appeal No. 01970460

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

)

DECISION

On August 18, 1996, Kasturi Basu (hereinafter referred to as appellant)

initiated an appeal to the Equal Employment Opportunity Commission

(Commission) from the final decision of the Department of Agriculture

(hereinafter referred to as agency) concerning her complaint of unlawful

employment discrimination raised pursuant to Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. and the Age

Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. �621 et

seq. The appeal is accepted by the Commission in accordance with the

EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented is whether the agency properly demanded that appellant

return attorney's fees, collected pursuant to a settlement agreement,

as a prerequisite to reinstatement of her complaint.

BACKGROUND

The record reflects that the parties entered into a settlement agreement

on May 30, 1996, to settle a complaint of race, color, national origin

(Asian), sex, reprisal and age discrimination. Appellant alleged

in her complaint that she was discriminated against when the agency

failed to promote her to the position of Program Manager, GS-13/14.

The provision of the settlement agreement that is at issue in this

case involved the payment of attorney's fees to appellant's attorney.

Specifically, it provided:

5. Pay [appellant's attorney] a lump sum payment of $1,750.00 in

attorney fees....The payment will be sent to [appellant's attorney at

his address].

On July 15, 1996, appellant requested reinstatement of her complaint

on the grounds that the agency failed to comply with the terms of the

agreement involving referral to GS-14 positions and confidentiality.

In a final agency decision, the agency admitted that it failed to

comply with the provision calling for a temporary promotion to GS-14,

and priority referrals to GS-14 positions. Because the agency was not in

compliance with these two substantive terms of the agreement, the agency

agreed to reinstate the complaint at the point where processing ceased,

provided that appellant repay the attorney's fees which were already

paid as a result of the agreement.

Appellant appealed this decision to the Commission claiming that, because

the breach of the agreement was due to the agency's failure to honor the

settlement agreement, she should not have to repay the attorney's fees.

ANALYSIS AND FINDINGS

A settlement agreement is a contract between the parties. When the

contract has been breached, it may be declared null and void. If so,

the parties typically return to the point that processing ceased, and

any monies received pursuant to the terms of the settlement agreement

are returned. See O'Farrell v. USPS, EEOC Petition No. 04920001 (February

28, 1992).

In O'Farrell, the case of Grillet v. Sears, Roebuck & Co., 927 F.2d 217

(5th Cir. 1991) was cited for the proposition that, to restore the status

quo ante, the claimant must return the money received pursuant to the

terms of the settlement agreement. In its final agency decision, the

agency also relies upon Grillet v. Sears, Roebuck & Co., to support its

mandate that appellant return the attorney's fees received as a result of

the settlement agreement, prior to reinstatement of her complaint. In

Oubre v. Entergy Operations, Inc. 522 U.S. ___, 118 S.Ct. 838, 139

L.Ed.2d 849 (1988), the Court announced that mere retention of monies

does not amount to a ratification of an agreement to waive the employee's

ADEA claims. In Oubre the defendant attempted to hold the petitioner to

the terms of the agreement when she refused to tender back the monies

received under the agreement. The Court found for the petitioner, and

stated, "...the employer cannot invoke the employee's failure to tender

back as a way of excusing its own failure to comply." Id.<1>

In the present case, there is no dispute that the agency failed to honor

the terms of the settlement agreement. In fact, the agency admitted

to the breach and agreed to reinstate appellant's complaint. Appellant

argues that because of the agency's breach she should not be required to

return the attorney's fees. In the present case, the Commission agrees

that the agency cannot excuse its own admitted breach of the settlement

agreement by claiming that appellant's failure to return attorney's fees

awarded therein precludes further processing of the complaint. Moreover,

we note that the payment was made directly to appellant's attorney,

not appellant, for a successfully completed legal representation, at

his address, and therefore, appellant had no control of the money once

it was paid to her attorney. For these reasons, the Commission finds

that return of the fees is not a prerequisite for continued processing

of the complaint.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, it is

the decision of the Equal Employment Opportunity Commission to REVERSE

the final decision of the agency which refused to reinstate appellant's

complaint.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108, at the point at which processing ceased.

The agency shall acknowledge to the appellant that it has received the

remanded allegations within thirty (30) calendar days of the date this

decision becomes final. The agency shall issue to appellant a copy of

the investigative file and also shall notify appellant of the appropriate

rights within one hundred fifty (150) calendar days of the date this

decision becomes final, unless the matter is otherwise resolved prior to

that time. If the appellant requests a final decision without a hearing,

the agency shall issue a final decision within sixty (60) days of receipt

of appellant's request.

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 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 AND EIGHTY (180) CALENDAR

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:

April 8, 1999

__________________ _______________________________

Date Frances M. Hart

Executive Officer

1Unlike Oubre, there is no argument made that the settlement agreement

in this case violates the Older Workers Benefit Protection Act (OWBPA),

nor do we find from our own review of the settlement agreement that the

OWBPA minimum requirements for waivers of ADEA claims were not met.

Moreover, although the present case and Oubre involve claims brought

pursuant to the ADEA, the rationale has been applied to other cases which

did not involve claims of age discrimination. See Hogue v. Southern Ry.,

390 U.S. 516 (1968) (Court held that an injured employee was not required

to tender back the consideration he received in exchange for a release of

claims brought pursuant to the Federal Employer's Liability Act (FELA)).