01974912_r
03-16-1999
Nabil S. Makary, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Nabil S. Makary, )
Appellant, )
)
v. ) Appeal No. 01974912
) Agency No. 940228
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
On April 4, 1997, appellant filed this appeal with the Commission
alleging that the agency did not comply with the terms of the settlement
agreement dated November 12, 1996. The agency in its response stated
that appellant's appeal was premature, arguing that appellant did not
notify the EEO Director of the alleged breach of the settlement agreement
as required under 29 C.F.R. �1614.504(a).
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Appellant filed a formal EEO complaint on February 24, 1994, alleging
that he was discriminated against on the bases of his age (53), race
(Caucasian) and national origin (Egypt) when he was not selected
for the position of Supervisory Medical Officer, Area Supervisor,
GM-701-14, for the Fort Washington, Pennsylvania area. The complaint
was accepted for investigation. After the investigation was completed,
appellant requested a hearing before an EEOC Administrative Judge (AJ).
The complaint was subsequently resolved by a settlement agreement entered
into on November 12, 1996. The agreement stated in relevant part that
the agency agrees to:
Promote the complainant to GS-14 retroactive to January 23, 1996, and
pay appropriate back pay and other retroactive employment benefits.
Place the complainant in a GS-14 Assistant District Manager position in
the Philadelphia District Office, Food Safety and Inspection Service
(�FSIS�), [agency], when it becomes operational. In the interim,
complainant will be detailed as the Special Assistant to the Regional
Director in the Regional Office, Philadelphia, while maintaining his
GS-14 grade/pay.
Pay the complainant reasonable attorney fees.
The record reveals that in a letter dated December 26, 1996,
appellant's counsel submitted to the agency his schedule of fees for the
professional services performed between July 6, 1995 and December 20,
1996. Appellant's attorney requested fees in the amount of $31,088.47.
This amount reflected 138.171 hours of professional services rendered
at a regular hourly rate of $225.00.
On appeal, appellant's counsel states that he was assured in telephone
conversations with agency representatives in January and February
of 1997 that his fees request was being processed. By letter dated
March 21, 1997, appellant's attorney advised the agency that if he did
not have written confirmation by March 27, 1997, that the payment of
$31,088.47 would be received in his office by March 31, 1997, he would
take appropriate legal action against the agency for its failure to honor
the terms of the settlement agreement. Appellant states on appeal that
in a telephone conversation with an agency official on March 28, 1997,
the agency representative essentially informed him that the agency would
not pay the requested amount of attorney's fees. In the instant appeal
dated April 4, 1997, appellant requests that the agency be ordered to
comply with the term of the settlement agreement concerning the payment
of reasonable attorney's fees, and that payment be in the amount of
$31,088.47. Appellant also requests an award of attorney's fees with
regard to his claim that the agency breached the settlement agreement.
In response, the agency asserts that appellant failed to exhaust
his administrative remedies with regard to his allegation that the
settlement agreement was breached. The agency argues that the instant
appeal should be dismissed because appellant failed to allege breach
with the agency's EEO Director prior to filing the instant appeal.
The agency states that appellant is entitled to a final agency decision
with regard to the amount of attorney's fees due. In the alternative,
the agency maintains that it has not breached the settlement agreement.
According to the agency, it has agreed to pay attorney's fees that are
reasonable, but it has not yet agreed to pay a specific amount.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final decision, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency shall
resolve the matter and respond to the complainant, in writing. If the
agency has not responded to the complainant, in writing, or if the
complainant is not satisfied with the agency's attempt to resolve the
matter, the complainant may appeal to the Commission for a determination
as to whether the agency has complied with the terms of the settlement
agreement or final decision. The complainant may file such an appeal
35 days after he or she has served the agency with the allegations of
noncompliance, but must file an appeal within 30 days of his or her
receipt of an agency's determination.
Settlement agreements are contracts between 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
(August 23, 1990). In interpreting settlement agreements, the Commission
has applied the contract principle known as the "plain meaning rule"
which holds that where a writing is unambiguous on its face, its
meaning is determined from the four corners of the instrument without
resort to extrinsic evidence. Smith v. Defense Logistics Agency,
EEOC Appeal No. 01913570 (December 2, 1991). Moreover, other standard
contractual requirements such as the necessity of consideration, apply
in this context. Collins v. United States Postal Service, EEOC Request
No. 05900082 (April 26, 1990); Shuman v. Department of the Navy, EEOC
Request No. 05900744 (July 20, 1990); Roberts v. United States Postal
Service, EEOC Appeal No. 01842193 (May 9, 1985).
Appellant alleged that the agency breached the provision of the settlement
agreement requiring the payment of reasonable attorney's fees. However,
we are unable to address this issue at this juncture. Appellant failed to
notify the EEO Director of the alleged breach before he filed the instant
appeal. This omission on the part of appellant is in violation of 29
C.F.R. �1614.504(a). Appellant failed to satisfy the condition precedent
for our review of his breach allegation. While clearly the agency has
now received notice of the allegation of breach, the agency failed to
address the merits of the allegation in response to appellant's appeal.
The agency disputes the amount of attorney's fees requested, however, the
agency does not dispute that some amount of attorney's fees is warranted;
the agency's response disputes the amount requested by appellant, but
it does not specify the amount it deems appropriate. Consequently, we
are unable to determine the exact amount of attorney's fees in dispute.
Accordingly, this matter is REMANDED to the agency for the issuance of
a final decision regarding the amount of attorney's fees to be paid in
accordance with the Order below.
ORDER
The agency is ORDERED to issue a final decision within thirty (30)
calendar days of the date that this decision becomes final. The decision
shall determine what constitutes reasonable attorney's fees with regard to
this matter, clearly setting forth the calculations, amounts disputed,
reasons for any amounts denied, and all other relevant information
regarding the amount of attorney's fees awarded. The agency's decision
shall provide appellant with notice of his right to appeal the decision
to the Commission.
A copy of the agency's final decision must be sent to the Compliance
Officer as referenced below.
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. �1614.604(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:
March 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations