Mohammad E. Akberzie, M.D., Complainant,v.Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionJun 14, 2001
01983230 (E.E.O.C. Jun. 14, 2001)

01983230

06-14-2001

Mohammad E. Akberzie, M.D., Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.


Mohammad E. Akberzie, M.D. v. Department of Health and Human Services

01983230

06-14-01

.

Mohammad E. Akberzie, M.D.,

Complainant,

v.

Tommy G. Thompson,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 01983230

Agency No. IHS07796

DECISION

INTRODUCTION

On March 9, 1998, Mohammad E. Akberzie, M.D. (complainant) initiated an

appeal to the Equal Employment Opportunity Commission (EEOC or Commission)

from the final decisions of the Department of Health and Human Service

(agency or IHS), finding compliance with the terms of the November 10,

1997 settlement agreement between the parties. Upon review, the Commission

finds that the agency breached the settlement agreement when it failed

to expunge the documents listed in Clause I of the agreement.

ISSUES PRESENTED

The issue presented herein is whether the agency breached the parties'

settlement agreement when it:

(1) failed to expunge the documents listed in Clause I of the settlement

agreement until December 29, 1998; and

(2) agreed to consider any claims for compensatory damages provided

the complainant submit the required documentation, and it awarded

$1,103.01 in compensatory damages when complainant submitted a request

for $494,761.55.<1>

BACKGROUND

Complainant was employed as a physician at the Claremore Indian Health

Services (IHS) of the Department of Health and Human Services in Tulsa,

Oklahoma. On August 30, 1996, and January 13, 1997, complainant filed

two formal EEO complaints alleging discrimination on the bases of national

origin (Afghanistan), religion (Moslem), and reprisal (prior EEO activity

- Title VII). IHS terminated complainant, effective March 15, 1997, at

which time complainant appealed to the Merit Systems Protection Board

(MSPB). On July 30, 1997, an MSPB settlement agreement was entered

into by the parties. However, complainant refused to include the

EEO complaints in the MSPB settlement agreement . On November 10,

1997, the parties agreed to enter into an EEO settlement agreement

(hereinafter, �settlement agreement�) in satisfaction of complainant's

EEO complaints. Clause I of the settlement agreement, signed on or about

November 6, 1997, provided in pertinent part that:

A.) The IHS agrees to expunge the letter of leave restriction,

[complainant] received on May 9, 1996.

B.) The IHS agrees to expunge the �Official Letter of Reprimand�

[complainant] received on August 20, 1996;

C.) The IHS agrees to expunge any memo from [complainant's] file, that

required [complainant] to use the sign in/out sheet, and the May 19,

1996, memo [complainant] allege [he] received. [sic]

D.) The IHS and the complainant agree, that he received the Within-grade

increase.

E.) The IHS agrees to seal all pertinent information pertaining to the

summary suspension of [complainant's] medical privileges, and agrees that

any information relating to [complainant's] summary suspension will not

be used against him in any manner.

F.) The IHS agrees to change the seven (7) hours of [Absence Without

Leave] (AWOL) complainant received on August 5, 1997, and the three

and half (3.5) AWOL received on November 4, 1996, to annual leave or

sick leave.

G.) The IHS agrees to expunge the suspension the complainant received,

from January 13, 1997 through January 17, 1997, and agrees to pay the

complainant back pay for this period.

J.) The IHS agrees to consider any claims for compensatory damages

provided the complainant submits the following documentation within 30

days of receipt of this offer:

* Proper and complete documentation which justifies [complainant's]

claim to compensatory damages. These documents may include, but are

not limited to, medical expenses to include any psychiatric treatment,

travel expenses to obtain medical treatment, moving expenses, job search

expenses, or any other documents which will assist the Director, EEO,

IHS, and this agency in determining the amount of compensatory damages

that you may be entitled to.

* Any available document that would establish a causal connection

between the conduct complained of and [complainant's] injuries, if any.

This request is based on EEOC's Enforcement Guidance on Compensatory

and Punitive Damages Available under Section 102 of the Civil Rights

Act of 1991. The complainant is not entitled to punitive damages.

See 42 U.S.C. section 1981a. See also EEOC Commission Case Law, Jackson

v. USPS, 93 FEOR 3061, Broughton v. Navy, 95 FEOR 1242, and Carle v. Navy,

94 FEOR 1043. See attached compensatory damages letter.

Expunged Records

By letter to the agency dated August 26, 1998, complainant alleged that

the agency was in breach of the settlement agreement for failure to

expunge his files as described in the settlement agreement. Specifically,

complainant stated that he believed he was being blackballed by IHS

because information or files of an adverse nature had in fact been

released. In its January 15, 1999 decision, the agency concluded that

it was not in breach of the settlement agreement because, as of December

29, 1998, all documents pertaining to complainant had been shredded,

and files were no longer being maintained about complainant.

On appeal, complainant, through his attorney, contends that the documents

in question had been released to other entities, including a party to

a lawsuit in which complainant is the plaintiff, other IHS offices,

and potential employers. Complainant admits that he is unable to

determine his actual damages arising from the agency's breach of

the settlement agreement. However, he argues that, where potential

employers were initially friendly and gave indications that complainant

would be hired, their attitudes and positions changed after contact was

made with IHS. For this reason, complainant believes that documents or

information of an adverse nature must have been released to potential

employers. Complainant requests monetary damages in excess of $10,000,

reinstatement of his complaints, and attorney fees for the agency's

breach. The agency contends that specific enforcement is appropriate,

noting that complainant's records were expunged as of December 29, 1998.

However, the agency asserts that none of the records were released to

potential employers, and points out that it is the MSPB settlement

agreement, not the EEO settlement agreement, which relates to the

releasing of information to potential employers.

Compensatory Damages

On October 30, 1997, complainant submitted a signed settlement agreement

with documentation of compensatory damages. The documents referred to

out-of-pocket expenses, future pecuniary and non-pecuniary expenses,

and included a statement from complainant and statements from physicians.

Complainant requested a total of $494,761.55 in compensatory damages. On

February 10, 1998, the agency issued a final decision, notifying

complainant that he was not entitled to any compensatory damages

because he failed to produce objective documentation or evidence that he

incurred any damages for which the agency was responsible. The agency also

determined that complainant failed to show a nexus between his damages and

his allegations of discrimination. However, complainant received a check

dated February 20, 1998 in the amount of $1,130.01 from the agency with

the notation �Settlement Agreement.� No explanation was provided with

the check.<2> On appeal, complainant, through his attorney, contends

that the agency acted in bad faith when it induced complainant to enter

the settlement agreement with an offer �to consider� compensatory damages.

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 intention, that controls the

contract's construction. Eggleston v. Department of Veterans Affairs,

EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent

of the parties with regard to the terms of a settlement agreement, the

Commission has generally relied on the �plain meaning� rule. See Hyon

v. United States Postal Service, EEOC Request No. 05910787 (December

2, 1991). This rule states that if the writing appears to be plain

and unambiguous on its face, its meaning must be determined from the

four corners of the instrument without resort to extrinsic evidence of

any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co.,

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

After a careful review of the record, the Commission finds that the agency

failed to comply with the terms of the settlement agreement with respect

to the expungement of complainant's records.<3> The parties entered into

the settlement agreement in November of 1997, yet the agency failed to

expunge the records until December 29, 1998. The agency admits that

it released the records to a party in a lawsuit in which complainant

is the Plaintiff, but contends that it did not release the records to

complainant's potential employers. We note, however, that the record

fails to address whether information was released from the records.

The agency further contends that the EEO settlement agreement is not

the agreement that relates to the releasing of information to potential

employers. However, we find that to the extent that the records were to

be expunged under the terms of the EEO settlement agreement, those records

could not be shared with future employers. We note that the agency's

breach over the course of one year has rendered specific performance an

unsatisfactory solution because it fails to adequately address the harm

complainant may have suffered during the one year period in which the

agency was in breach.<4> Accordingly, we find that the agency breached

the settlement agreement, and therefore, complainant's EEO complaints

should be reinstated. We note that complainant is not entitled to a

determination on his claim of breach with respect to compensatory damages

(Clause I, Sub-section J of the November 1997 settlement agreement)

because his EEO complaints are hereby reinstated.

We further find complainant's request for damages for the breach to

be a request for compensatory damages. The Commission has held that

"compensatory damages are not an available remedy upon a finding of

breach." Martin v. Department of Defense, EEOC Request No. 05940745

(Aug. 24, 1995). "[O]ur regulations provide only that [we] may order

compliance and reinstatement of the underlying complaint." Id. (citing

29 C.F.R. �1614.504(c) and Williams v. Department of Veterans Affairs,

EEOC Request No. 05931172 (Aug. 4, 1994)). Therefore, we find that

complainant is not entitled to the damages he requests on appeal with

respect to the breach.

CONCLUSION

Accordingly, the agency's finding of no settlement breach is REVERSED, and

the matter is REMANDED to the agency for compliance with the Order below.

ORDER

The agency is ORDERED to notify complainant of his option to return to the

status quo that existed prior to the signing of the settlement agreement.

Pursuant thereto, the agency shall notify complainant within forty-five

(45) calendar days of the date this decision becomes final that he has

fifteen (15) calendar days from the date of receipt of the agency's

notice within which to notify the agency whether he wishes to return to

the status quo or to allow the terms of his November 1997 EEO settlement

agreement to stand. Complainant shall be notified that in order to return

to the status quo, he must return any monies or benefits received as

a result of his settlement agreement, including compensatory damages.

The agency shall determine any payment due complainant, or return of

consideration or benefits due from complainant, within forty-five (45)

calendar days of the date this decision becomes final and shall include

such information in the notice to complainant. If complainant elects to

return to the status quo and he returns all monies or benefits owing to

the agency, as specified above, the agency shall also resume processing

of complainant's complaints from the point processing ceased pursuant

to 29 C.F.R. � 1614.108 et seq. In the event that complainant elects not

to return to the status quo, i.e., not to return any consideration owing

to the agency, the agency shall notify complainant that the terms of his

settlement agreement will stand. The agency shall also reissue a final

agency decision regarding compensatory damages and provide complainant

with appeal rights to the Commission.

Copies of the agency's notices to complainant regarding his options, as

well as copies of either the correspondence reinstating the complaints for

processing, or the correspondence notifying complainant that the terms

of the agreements will stand must be sent to the Compliance Officer as

referenced below.

ATTORNEY'S FEES (H0900)

If complainant 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 the complaint.

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 (K0900)

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

order, the complainant may petition the Commission for enforcement of

the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,

the complainant 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. �� 1614.407 and 1614.408. 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

complainant files a civil action, the administrative processing of the

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

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (R0900)

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 within ninety (90) calendar days from the date

that you receive this decision. 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 (Z1199)

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

__06-14-01________________

Date

1The agency argues that complainant is untimely as to his allegation of

breach with respect to compensatory damages, though notes complainant's

timeliness with respect to attorney's fees. However, complainant has

proven that he submitted his appeal in a timely manner. We note that

complainant has not alleged breach with respect to attorney's fees.

2The record remains unclear as to whether complainant cashed the check.

3Because we find breach with respect to the expungement of complainant's

records, we need not address complainant's contention of breach with

respect to compensatory damages.

4 We further note that the agency has been in substantial compliance

of the settlement agreement since December 29, 1998 when it expunged

the records.