01991961
02-15-2000
James H. Low, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
James H. Low, )
Complainant, )
)
v. ) Appeal No. 01991961
) Agency No. 96-62661-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
________________________________)
DECISION
Complainant filed the instant appeal apparently from both of the agency's
November 20, 1998 decisions finding that the agency was not, at that
time, in breach of the settlement agreement entered into by the parties
on December 13, 1996.<1>
The settlement agreement provided in relevant part:
The parties agree that the terms of this settlement agreement . . . will
be kept confidential . . . Allegations that the confidentiality clause
has been breached will be brought before an independent Arbitrator,
selected from the American Arbitrators Association, who is empowered
to fashion a remedy, including rendering this agreement null and void,
upon a finding of breach. . . .
. . . .
. . . the Agency agrees to:
A. Restoration of Leave. All officially documented leave used due to job
related stress as documented by the Department of the Navy payroll office,
which is not covered by Complainant's Worker's Compensation complaint,
will be restored by the Agency. Furthermore, the Agency will "buy back"
the remaining twenty-five (25%) still outstanding under Complainant's
Worker's Compensation claim, file number 01-0329832, CA-7, of which
the Department of the Labor will restore $32,788.19, consistent with
applicable rules and regulations.
. . . .
Reasonable & Customary Attorney's Fees. The Agency agrees to pay
twenty-two thousand and five-hundred ($22,500.00) dollars in legal fees
and two-thousand five-hundred ($2,500.00) dollars in expenses related
to this complaint to Thomas McAndrew, Esq. The Agency believes this
sum satisfies reimbursement of all outstanding, authorized, reasonable
and customary legal fees connected with any and all matters covered
under this agreement. Mr. McAndrew disagrees. . . .
Both parties agree, however, that Thomas McAndrew, Esq. may submit his
legal fee billing statement to the Department of the Navy for a decision
as to whether his claimed attorney's fees are reasonable and customary
under the applicable rules, regulations, and case law. . . .
The Commission previously found that the agency breached the December 13,
1996 settlement agreement. Low v. Department of the Navy, EEOC Appeal
Nos. 01973387 and 01982661 (Oct. 23, 1998). The Commission ordered the
agency to take various actions including:
Issue [complainant] a final agency decision and appropriate payment
on his claim for attorney's fees and costs above the $25,000 already
provided by the agency based on the information submitted in January
1997 in counsel's fee application;
Restore to [complainant] all officially documented leave he used due to
job-related stress as documented by the Department of the Navy payroll
office, which was not covered by his workers' compensation complaint,
and "buy back" the remaining 25% still outstanding under his workers'
compensation claim (#01-0329832, CA-7);
. . . .
provide [complainant] with an award of reasonable attorney's fees and
costs for the successful processing of these appeals pursuant to . . . 29
C.F.R. � 1614.501(e).
Low, EEOC Appeal Nos. 01973387 and 01982661.
The agency subsequently issued a decision dated November 20, 1998
detailing its compliance with the settlement agreement. The agency
issued another decision dated November 20, 1998 detailing its compliance
with the attorney's fees and costs issue. Regarding provision 12(A)
the agency found: "In order to effectuate this provision, you must
submit your worker's compensation application for reinstatement of
leave or . . directly restore your leave so that this provision can
be satisfied . . ." Regarding attorney's fees and costs the agency
approved $90,000.00 in attorney's fees, $300.25 in costs, and $3,732.50
"to process counsel's appeal."
Complainant filed the instant appeal on December 30, 1998. Complainant
argues in the instant appeal that: (1) the agency breached provision
12(A) of the agreement by failing to restore the leave complainant is
entitled to under the agreement; (2) complainant is entitled to various
damages (e.g., punitive damages) for not complying with the settlement
agreement; (3) the agency should pay complainant for time complainant
spent defending himself in the instant matter; (4) the agency should
pay fees for complainant's representative, Jack Beliveau, for his time
and costs to prepare responses to the EEOC and to the agency; and (5)
the agency should pay legal fees to Thomas McAndrew as a result of the
agency filing charges against complainant before the American Arbitration
Association.
By letter dated March 26, 1999 the agency informed the Commission that
it had complied with the actions required by the Commission in Low, EEOC
Appeal Nos. 01973387 and 01982661. The Commission deems the March 26,
1999 letter to constitute an agency decision finding that the agency is
now in compliance with the December 13, 1996 settlement agreement.
By letter dated March 23, 1999 the agency found that it had complied with
provision 12(A) by restoring, on February 25, 1999 1,200 hours of leave
for job-related stress as documented by the payroll office and which was
not covered by complainant's workers' compensation complaint. The agency
also found that the agency agreed to reinstate the leave covered by
restoration of leave under complainant's workers' compensation claim
without requiring payment of the 25% of pay that workers' compensation
does not cover. The agency further stated:
It is the Agency's understanding that [complainant] has submitted the
necessary documentation to effect the restoration of leave covered by
his worker's compensation claim, and that the Department of Labor is
processing [complainant's] request.
In the March 23, 1999 letter the agency found that attorney's fees and
costs attributable to the arbitration process are not recoverable.
The agency also found that complainant's requests for complainant's
fees and costs and Jack Beliveau's fees and costs can not be recovered
because neither person is an attorney. The agency also rejected all of
complainant's other claims for damages.
Complainant has not submitted a response to the Commission or the
agency in the instant record concerning the agency's March 23 or 26,
1999 letters.
The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be
codified as and hereinafter cited as 29 C.F.R. � 1614.504(a)) provides
that any settlement agreement knowingly and voluntarily agreed to by the
parties shall be binding on both parties. If the complainant believes
that the agency has failed to comply with the terms of a settlement
agreement, then the complainant shall notify the EEO Director of the
alleged noncompliance "within 30 days of when the complainant knew or
should have known of the alleged noncompliance." 29 C.F.R. � 1614.504(a).
The complainant may request that the terms of the settlement agreement
be specifically implemented or request that the complaint be reinstated
for further processing from the point processing ceased. Id.
Settlement agreements are contracts between the appellant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
Provision 12(A)
Complainant appears to only be challenging the restoration of leave
portion of this provision (and not the "buy back" portion). By letter
dated February 12, 1999 the agency informed complainant that he was
entitled to restoration of 1,200 hours of leave. The agency provided
complainant with an explanation of how the leave was calculated.
By letter dated March 11, 1999 the agency informed complainant that on
February 25, 1999 the agency restored 1,200 hours of leave to complainant
under the agreement and "bought" the remaining 25% under complainant's
workers' compensation claim.
The Commission finds that complainant has not shown on appeal how the
amount of restored leave as described in the agency's March 23, 1999
letter was insufficient. Specifically, complainant has not shown that
the agency failed to restore any leave which was due to job related
stress "as documented by the Department of the Navy payroll office."
Therefore, we find that complainant has failed to show that the agency
is now in breach of provision 12(A) of the settlement agreement.
Fees and Costs for Complainant and Jack Beliveau
EEOC Regulation 29 C.F.R. � 1614.501(e)(1)(iii) provides:
Attorney's fees are allowable only for the services of members of the
Bar and law clerks, paralegals or law students under the supervision of
members of the Bar, except that no award is allowable for the services
of any employee of the Federal Government.
There is no claim by complainant or indication in the record that either
complainant or Jack Beliveau maintain a status which would allow recovery
of attorney's fees for their services. Therefore, the agency properly
did not reimburse complainant and Jack Beliveau for attorney's fees
and costs.
Attorney's fees for Thomas McAndrew's Services
By letter dated February 28, 1999, after the initial appeal was filed,
complainant informed the agency (emphasis original):
My requested resolution . . . does not include a detail of fees for
Mr. Thomas J. McAndrew, the attorney who represented me before the EEOC
Administrative Judge . . . for the original case and before the American
Arbitration Association (AAA). . . .
Mr. Thomas J. McAndrew has not been my representative since August 1998.
He did not participate in the formulation or perfecting of my current
non-compliance complaint and is not authorized to negotiate or settle
this claim that the agency has assigned to you to resolve.
The Commission finds that complainant has withdrawn in the instant
appeal any request for attorney's fees and costs for services provided
by Thomas McAndrew. Therefore, we need not consider whether the agency
properly denied attorney's fees and costs in connection with services
provided by Thomas McAndrew for representation of complainant before
the American Arbitration Association.
Other Damages
Complainant's request for other damages, such as punitive damages, are not
awardable under the instant settlement agreement because complainant has
not shown that the agency is now in breach of the agreement and because
such damages are not awarded in the agreement.
The Commission finds that complainant has failed to show that the agency
is now in breach of the December 13, 1996 agreement or that complainant
is entitled to any more monies or damages from the agency arising from
a breach of the December 13, 1996 agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (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:
February 15, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.