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)).