0120082606
04-23-2009
Paul L. Terban, Complainant, v. Dr. Steven Chu, Secretary, Department of Energy, Agency.
Paul L. Terban,
Complainant,
v.
Dr. Steven Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120082606
Agency No. 9617HQED
DECISION
On April 10, 2008, the Commission docketed an appeal concerning
complainant's claim that the agency breached a September 30, 2004
settlement agreement into which the parties entered.
Complainant filed an EEO complaint with the agency on October 24, 1995,
alleging discrimination on the basis of his race (Caucasian) in connection
with workplace incidents that occurred in February, July, September and
October of 1995. He retired from the agency on October 3, 1997.
At complainant's request, the case was assigned to an Equal Employment
Opportunity Commission (EEOC) Administrative Judge (AJ) for a hearing.
A hearing was held on February 27 and 28, 2002. The AJ issued a
decision on May 24, 2004, finding that complainant had been discriminated
against on the basis of race and ordered, in part, the following relief:
reinstatement of complainant in the position from which he resigned;
payment of back pay in an amount to be calculated by the agency; an award
of $130,000.00 in non-pecuniary, compensatory damages; and an award of
$6,329.25 in pecuniary damages. The agency subsequently issued a final
order rejecting the AJ's decision in its entirety and filed an appeal
with the Commission.
While the appeal was pending before the Commission, the parties reached
a partial settlement agreement on September 30, 2004. Pursuant to the
settlement agreement the parties agreed the appeal would proceed solely
on the issue of compensatory damages.1 The settlement agreement provided,
in pertinent part, that:
A. THE DEPARTMENT AGREES TO:2
(1) Process personnel actions to reflect the Complainant's October 3,
1997[] retirement as a retirement based on election of discontinued
service, effective October 3, 1997, due to the abolishment of the
position of Executive Officer (Deputy Director), which was held by the
Complainant prior to that date.
(2) Appoint the Complainant to the career position of Executive
Officer; GS-301-15, in the Office of Economic Impact and Diversity, Office
of Small and Disadvantaged Business Utilization, at the Department,
Forrestal Building, 1000 Independence Avenue SW., Washington, DC,
effective November 5, 2000.
(3) Process, effective October 3, 2004, the conversion of the
Complainant's Executive Officer career appointment to a temporary
appointment Not To Exceed November 4, 2004, with no break in service,
in the position of Executive Officer. The beginning date of said 30
day temporary appointment is subject to the date of completion of the
Office of Personnel Management's (OPM) review and concurrence set forth
in paragraph A7 below.
(4) Process the retirement application and automatic termination of
the Complainant's temporary appointment as Executive Officer, effective
November 4, 2004.
(5) Pay back pay for the period of November 5, 2000, through October
2, 2004, and related benefits for Complainant's temporary appointment
to the position of Executive Officer for the period of October 3, 2004,
through November 4, 2004, based upon appropriate OPM regulations.
(6) Process payment to the Complainant's attorneys, through Renn
Fowler, in the amount of $57,000.00 as attorneys' fees in connection
with the Equal Employment Opportunity (EEOC) hearing and $2,000.00 as
attorneys' fees subsequent to the EEOC hearing.
(7) Submit this Conciliation/Settlement Agreement (Agreement) to
the OPM, Office of General Counsel, for concurrence of the retirement
actions, prior to finalizing the Agreement.
B. THE COMPLAINANT AGREES TO:
(1) Not apply for employment with the Department or its on-site
contractors for a period of 5 years from the effective date of this
Agreement.
(2) Report for personnel processing for and commencement of employment
in the temporary position of Executive Officer of October 4, 2004,
and work by telecommuting from his residence through November 4, 2004.
(3) Waive back pay from October 3, 1997, the effective date of his
retirement, through November 4, 2000, based on the effective date of the
Complainant's November 5, 2000, career appointment to the position of
Executive Officer. The Complainant was not an employee from October 3,
1997, through November 4, 2000, and shall not be considered to be an
employee during said period of time for purposes of this Agreement.
C. THE DEPARTMENT AND COMPLAINANT JOINTLY AGREE:
(1) The Complainant's retirement benefits shall terminate as of November
4, 2000, based on the Complainant's employment in the position of
Executive officer.
. . . .
(4) The parties understand and agree that the timing of the payment
of any funds referred to in this Agreement are subject to the timing
of the availability of appropriated funds, which may be affected by
factors including but not limited to a continuing resolution for the
appropriation of funds in fiscal year 2005.
(5) This Agreement is contingent on OPM approval of the Complainant's
retirement application following the November 4, 2004[] termination
of his employment.
D. GENERAL PROVISIONS:
. . . .
(6) If the Complainant believes that the Department has failed to
comply with the terms of the settlement agreement, the Complainant
shall notify Richard Gallegos, Equal Employment Opportunity Officer,
in writing, of the alleged noncompliance within 30 calendar days of when
the Complainant knew or should have known of the alleged noncompliance
pursuant to 29 C.F.R. � 1614.504. The Complainant may request that the
terms of the Agreement be specifically implemented or that the complaint
be reinstated.
The record reveals in response to a voicemail from complainant's
attorney regarding the status of the agency's implementation of the
settlement agreement, Agency Co-representative 1 authored a December
6, 2004 electronic mail message to complainant's attorney. Agency
Co-representative 1 stated that the paperwork was being processed and
funds were being arranged for payment to complainant.
In a January 28, 2005 electronic mail message to Agency Co-representative
1, complainant's attorney noted complainant had not received payment
pursuant to the terms of the settlement agreement. Complainant's attorney
also stated that he prefers to avoid filing a petition for enforcement of
the settlement agreement and asked the agency when payment would be made.
In a January 31, 2005 response, the agency stated it was looking into the
status of the matter. Complainant's attorney responded on February 1,
2005, stating that he would wait to hear from the agency.
On February 14, 2005, complainant's attorney informed Agency
Co-representative 1 that if he is not advised by February 16, 2005,
of a certain date the back pay check will be issued, he will file a
petition for enforcement with the Commission. On March 2, 2005, Agency
Co-representative 1 requested bank account information to accomplish the
payment of money due pursuant to the settlement agreement. The agency
stated that the paperwork to accomplish the transfer will be initiated
following receipt of the bank information. Complainant provided the
electronic payment information the same day. Complainant stated that
despite the agency's promise to make the payment by March 5, 2005,
the agency did not make payment on that date.
On March 9, 2005, complainant filed a "PETITION FOR ENFORCEMENT"3 with
the Commission claiming that the agency has not fully complied with
the settlement agreement. Complainant acknowledged that he received
payment of attorney's fees (pursuant to provision A(6)); however,
he stated he has not received any back pay or benefits due under the
agreement. Complainant requested that the terms of the agreement be
specifically enforced. Complainant also requested he be awarded interest
on payment of all proceeds and attorney's fees for filing the petition
for enforcement.
The agency responded on April 1, 2005, opposing complainant's claim
of breach of settlement. The agency noted that it paid $59,000.00 on
December 29, 2005, for complainant's attorney's fees pursuant to the
settlement agreement. The agency also stated that it paid $119,368.63 "as
partial payment of [complainant's] back pay and benefits."4 The agency
claimed it is in compliance with the settlement agreement since payments
have been made in accordance with the terms of the agreement. Further,
the agency argued that based on complainant's consent to paragraph
C(4) of the agreement, complainant is not entitled to attorney's fees
associated with the filing of the petition. The agency stated it will
"continue to comply with the Settlement Agreement until all payments plus
interest are paid in full, and a full accounting thereof is rendered."
On April 7, 2005, complainant responded to the agency's opposition to
his breach of settlement claim, noting that the agency failed to pay
complainant any money until after he filed his breach of settlement
claim.5 Complainant also claimed that the agency did not pay the full
amount due under the agreement. Complainant noted the agency failed to
provide an accounting of back pay and interest due under the agreement.
With regard to the agency's assertion that payment will be made when funds
become available, complainant stated that the clause cited by the agency
was not intended to permit the agency to pay complainant at its leisure.
Complainant reiterated his position he should receive attorney's fees
in connection with the enforcement of the agreement.
Complainant continued to contact the agency regarding its noncompliance
with the settlement agreement and on July 23, 2007, the agency provided,
for the first time, an accounting summary of all the monies paid to
complainant. This accounting listed two columns under the heading of
"FIRST PAYMENT PAID APRIL 14, 2005" and "SECOND PAYMENT PAID APRIL 13,
2006." Under the first payment paid column complainant's gross wages
were listed as $185,394.40 and under the second payment paid column
complainant's gross wages were listed as $288,092.00. The accounting
states that after deductions complainant was paid a first payment
on April 14, 2005, in the amount of $119,368.63 and a second payment
on April 13, 2006, in the amount of $86,947.36. This accounting also
offset the amount payable to complainant by $154,813.45 and noted that
this amount represents the "annuity to be refunded to OPM."
On August 7, 2007, complainant asked the agency how calculations for gross
regular wages of $185,394.40 and $288,092.00 (totaling $473,486.40)
were determined. Complainant stated that he believed the correct
calculations should have totaled $485,615.00. Complainant requested
the agency provide information on how it calculated the gross salary
for the four-year period at issue, including the salaries and rates and
the amount of time paid for each rate; the lump sum leave calculations,
including the calculation of the amount of leave due and the hourly rate
used for calculating the amount due; the rates used for each deduction;
and the interest rates used by the agency.
Complainant also challenged a number of the offsets shown in the agency's
calculations. Specifically, complainant stated that the annuity to be
repaid to OPM which the agency estimated as $154,813.45 was improperly
deducted from the back pay due to him and instead he argued the agency
should have paid this amount to OPM directly. Complainant rejected the
agency's $25,000.00 offset for the buyout repayment he received when
he retired. Complainant stated the agency is not permitted to offset
$13,057.00 for outside earnings since it was related to a part-time
business operated by him and his wife for the past 25 years, which
he states he would have earned regardless of his employment status.6
Complainant disputed the agency's deductions for Old Age, Survivors, and
Disability Insurance (OASDI) and claimed he is not required to pay this
amount on back pay because the Civil Service Retirement System (CSRS)
does not require contributions to Social Security. Complainant disputed
the agency's deductions for base and option FEGLI (Federal Employees
Government Life Insurance) and deductions for FEHB (Federal Employees
Health Benefits).
The record reveals in an October 25, 2007 letter, OPM issued a letter to
complainant regarding his annuity. OPM stated that based on a review
of the settlement agreement, complainant was overpaid annuity benefits
from October 4, 1997, to November 3, 2000. OPM calculated the total
amount to be collected from complainant as $238,651.20.
On February 20, 2008, and June 25, 2008, complainant filed supplements
to his original March 9, 2005 breach of settlement claim. Complainant
reiterated his claim that the agency failed to make reasonably prompt
payments of back pay and failed to repay OPM amounts due resulting in
OPM's decision to collect that amount from complainant. With regard to
the issue of back pay, complainant noted that the agency did not make
any payments for back pay pursuant to the September 30, 2004 settlement
agreement until after he filed his petition for enforcement on March
9, 2005. Complainant acknowledges the agency's first payment was made
on April 14, 2005, in the amount of $119,368.63. Complainant notes the
agency made a second payment of back pay in April 2006, in the amount of
$86,947.36. Complainant notes that there is nothing in the settlement
agreement permitting the agency to make payments in installments.
Further, complainant states that payments made approximately one and a
half years after the execution of the agreement cannot be deemed to have
occurred within a reasonable time limit. Moreover, complainant contends
despite the two payments made by the agency, he is still owed additional
back pay. Specifically, complainant states that according to the expert
he hired, his gross regular wages should have been $485,615.00 instead
of the agency's calculation of $473,486.40. Complainant notes that the
agency paid $21,529.00 into his retirement account on April 13, 2006.7
He states that the agency should have paid OPM for paid-in contributions
to CSRS in the amount of $33,993.00. Thus, complainant states that the
agency still needs to pay OPM for CSRS contributions in the amount of
$12,464.00 ($33,993.00 minus $21,529.00).
Complainant also states that the agency breached the settlement agreement
with regard to complainant's annuity payment. Complainant stated that in
the July 23, 2007 accounting, the agency claimed an offset to the money
owed to him in the amount of $154,813.45 and the agency noted that this
annuity was to be refunded to OPM. Complainant claimed that as a result
of the agency's failure to repay OPM, in October 2007, OPM attempted
to collect in excess of $238,000.00 from him. Complainant stated
that on March 25, 2008, the agency finally paid $154,813.45 to OPM,
which was directed towards his retirement account. Complainant claims
that the more than a year delay in repaying this money constitutes a
breach of the settlement agreement. Complainant also contends that he
incurred additional attorney's fees in securing compliance with the
settlement agreement. Complainant also contends that the agency did
not take necessary actions to insure that the payment made to OPM was
applied retroactively to November 2004, and as a result, complainant
states that all payments received after November 2004, when he retired
pursuant to the settlement agreement, have been based upon an incorrect
and substantially lower "higher three."
The record contains a June 22, 2008 letter from OPM, concerning a review
of his annuity based on the September 30, 2004 settlement agreement.
The letter notes that pursuant to the agreement, complainant was rehired
by the agency from November 4, 2000, through November 3, 2004, and his
annuity should have stopped the effective date of rehire. OPM states
as a result complainant was overpaid $172,890.70. OPM states that it
applied a $154,813.45 payment from the agency towards the collection of
the annuity overpayment which left a balance due of $18,077.25.
In July 2008, the agency filed "The Department of Energy's Statement
in Opposition to the Appeal" stating that complainant did not intend
to file an appeal and arguing the Commission erroneously docketed an
appeal in the matter. The agency claims that to the extent complainant is
contending that there was a breach of the settlement agreement, he failed
to raise his dissatisfaction in writing to the agency's EEO Director.
In response to the agency's Opposition, complainant claims that he
was not required to notify the EEO Director in writing about a breach
claim. Rather, complainant notes the settlement agreement stated
complainant should notify Richard Gallegos, EEO Officer, in writing,
of any alleged noncompliance. Complainant states that he has notified
the agency numerous times of its noncompliance with the September 30,
2004 settlement agreement. Complainant states the agency failed to
issue a final decision on his breach allegation. Moreover, complainant
reiterates his claim that the agency failed to make appropriate payments
pursuant to the settlement agreement. Specifically, complainant noted
that on March 25, 2008, the agency finally issued payment to OPM in the
amount of $154,813.45; however, OPM determined complainant's retirement
account is still deficient in the amount of $18,077.25.
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 O 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).
In the present case, despite the agency's contentions to the contrary,
we find that complainant gave the agency proper notification of his
breach of settlement claim when he filed the present appeal with the
Commission on March 9, 2005. While we recognize there was a delay by
the Commission in docketing the subject breach of settlement claim, we
note that the agency submitted a response to the breach claim on April
1, 2005. Due to the delay by the Commission in docketing this appeal,
we will consider all submissions submitted by each party in reference
to the present breach of settlement claim.
Upon review, the Commission finds that the agency breached the September
30, 2004 settlement agreement as a result of its extraordinary delay
in providing full payment of back pay due pursuant to the agreement.
Specifically, we note that the agency paid $119,368.63 "as partial
payment" of back pay and benefits at the earliest on March 29, 2005,
acknowledging that this was only part of the back pay due complainant.
The record reveals that the agency did not make another payment of back
pay due until over a year later on April 13, 2006. Further, the record
shows that despite the accounting of funds provided to complainant in
July 2007, noting that $154,813.45 was "Annuity to be refunded to OPM,"
the agency did not make such a payment to OPM until March 25, 2008.
As a result of the delay in repayment of annuity to OPM, OPM attempted
to collect the outstanding annuity repayment directly from complainant.
While there was no time limit on when back pay was supposed to be made
pursuant to the agreement, the Commission finds that the delay here, over
1.5 years before the second back pay payment was made, was unreasonable.
As a result of the agency's lengthy delay in providing complainant back
pay due pursuant to the settlement agreement, we find that an award of
attorney's fees is appropriate for the instant appeal to enforce the
settlement agreement.
In awarding attorney's fees, we reject the agency's contention that
as a result of provision C(4), which states that the payment of funds
are subject to the timing of the availability of appropriated funds,
complainant waived entitlement to attorney's fees for the present appeal.
Upon review of the agreement we find no provision by which complainant
agreed to waive attorney's fees for pursuing a claim for breach of the
settlement agreement. Further, we find provision C(4) did not provide
an infinite amount of time for the agency to pay the money due pursuant
to the settlement agreement.
Moreover, we note that complainant claims that the agency did not pay him
the appropriate amount of back pay due. Specifically, complainant claims
that the agency used the wrong gross regular wages in its accounting;
incorrectly deducted the $25,000.00 buyout complainant received when he
retired; failed to make correct lump sum leave calculations; incorrectly
deducted outside earnings; made incorrect OASDI, FEGLI, FEHB deductions;
and failed to pay correct contributions to his CSRS account. In the
absence of any statement from the agency addressing the alleged errors
by complainant, we can not determine from the current record if the
agency has complied with the agreement by paying the correct amount of
back pay. Although the agency provided a statement of gross wages and
deductions that it used in calculating back pay, the agency did not
provide specific information showing the calculations and assumptions
(such as salaries for gross pay and the method used to determine leave
hours) that led to the determination of gross wages and deductions.
Therefore, we shall remand the matter to the agency to: address
and resolve the alleged errors cited by complainant; to issue a new
determination on the correct back pay amount; to issue an explanation
of how that amount was calculated including a response to complainant's
specific arguments described in this paragraph; and to issue an award
of additional back pay and interest if appropriate.
Furthermore, complainant claims that the ultimate annuity payment made
to OPM in March 2008, was not the correct amount due. Complainant cites
to a June 22, 2005 letter from OPM noting that complainant was overpaid
$172,890.70. OPM states that it applied a $154,813.45 payment from the
agency towards the collection of the annuity overpayment which left an
overpayment balance of $18,077.25. Since the agency does not address
complainant's contentions and we can not determine from the record
whether the agency is obligated to pay the $18,077.25, we remand the
matter to the agency to resolve the alleged error cited by complainant.
CONCLUSION
Accordingly, the matter is REMANDED to the agency for further action to
be taken in accordance with the Order listed herein.
ORDER
Within 60 days of the date this decision becomes final, the agency shall:
1. Review and address complainant's objections to the agency's
calculations of the back pay due pursuant to the September 30, 2004
settlement agreement. The agency shall place specific evidence in
the record documenting how it determined the back pay and interest
due complainant. Specifically, the agency shall indicate how it
determined complainant's gross wages, lump sum leave calculations,
outside earnings, the OASDI, FEGLI, FEHB deductions, and the amount of
the agency's contributions to complainant's CSRS account. The agency
shall pay complainant any additional sums due for back pay.
2. Produce evidence that it has provided the appropriate annuity repayment
to OPM. Specifically, the agency shall place evidence in the record
of its calculations of the annuity due and shall repay, if necessary,
any outstanding annuity to OPM.
3. Issue a new decision determining its compliance with the
settlement agreement of September 30, 2004.
A copy of the new agency decision on the breach of settlement claim and
explanation of how the agency calculated back pay and annuity payments as
described in paragraphs 1 and 2 of this Order must be sent to complainant
and to the Compliance Officer as referenced herein.
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 (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 23, 2009
__________________
Date
1 In EEOC Appeal No. 0720040017 (April 3, 2008), the Commission upheld
the AJ's award of $130,000.00 in non-pecuniary, compensatory damages
and $6,329.25 in pecuniary damages.
2 A footnote in the settlement agreement at this location in the agreement
states: "All personnel actions authorized by the Department will be
completed within 45 days of the effective date of this Agreement. . . ."
3 Although complainant referred to his appeal as a petition for
enforcement, it is really a claim of breach of a settlement agreement.
4 While the agency states that it paid $119,368.63 on March 29, 2005,
we note that in the accounting it provides to complainant in July 2007,
the agency states that this payment was made on April 14, 2005. Based on
the parties' subsequent submissions, we will assume that this payment
was made at the earliest on March 29, 2005.
5 Complainant filed a corrected copy of his April 7, 2005 submission on
July 5, 2005.
6 We note the agency accounting provided on July 23, 2007, states that
$13,057.16 was offset for outside earnings and we assume complainant
rounded the amount to $13,057.00.
7 We note the agency accounting provided on July 23, 2007, state that
$21,529.20 was paid to complainant for CSRS and we assume complainant
rounded the amount to $21,529.00
??
??
??
??
2
0120082606
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
12
0120082606