01995591
03-22-2002
Lorna Lee, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Lorna Lee v. Department of Army
01995591
03-22-02
.
Lorna Lee,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01995591
Agency No. AOEWEFO96120990
DECISION
Complainant filed a timely appeal with this Commission concerning the
issue of the agency's compliance with the terms of the June 22, 1998,
settlement agreement (Agreement) into which the parties entered. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The Agreement provided, in pertinent part, that the agency agreed to:
3. F. Pay reasonable attorney fees directly to complainant's attorney,
in accordance with 29 C.F.R. 1614.501(e);
6. It is agreed between the parties to this agreement that no interest
shall be awarded as part of this settlement agreement.
The record shows that on November 30, 1998, complainant's attorney signed
a Settlement of Attorney's Fees Agreement wherein complainant's attorney
agreed to accept $20,588.18 as payment in full for attorneys fees and
expenses. Agency officials agreed to pay the total amount requested
as full settlement, requesting counsel's signature on a supplemental
agreement entitled, �Settlement of Attorneys Fees.� The correspondence
stated that �once received it would be processed immediately for payment.�
Further correspondence reveals that complainant's counsel posed several
questions regarding the specific time frame for payment. Agency counsel
correspondence stated that the �agency will insure the payment documents
are submitted to DFAS immediately which should insure payment within
45-60 days from receipt of the original form earlier.� On January 22,
1999, complainant's counsel sent an inquiry to agency counsel noting
that more than 45 days had passed and almost 60 days, without payment
or word. On January 26, 1999, agency counsel responded, noting that
the Agreement arrived while he was out of town but was forwarded �to the
activity� for signature upon his return. The agency attorney further
stated that either the DFAS has or would contact complainant's attorney
for finalization and �payment should be completed shortly.� On February
16, 1999, the agency's attorney again communicated with complainant's
counsel stating to contact him �if [you] do not receive payment shortly.�
Subsequently, on March 1, 1999, complainant's attorney stated that if
payment of attorneys fees remained delayed that complainant would initiate
a breach of the Agreement and seek an additional amount of attorney fees,
as well as interest. Complainant's counsel stated that if the attorney
fees payment were not in hand by the end of the week, he would assume
that the agency was unable to obtain compliance and would initiate a
formal complaint of breach which he did on March 8, 1999. The record
shows that on March 9, 1999, a check in the amount of $20,588.18 was
issued to complainant's attorney.
In response, the agency issued a FAD wherein it found no breach of the
Agreement. In the FAD, the agency noted that the Agreement stated that
the agency would submit the required paperwork and this would ensure
payment. There was no definite promise made by the agency because they
cannot guarantee a specific time frame for payment after the paperwork
to issue payment leaves the agency. The agency further noted that it
has no control over DFAS and therefore it cannot be held accountable
for their delays. Complainant filed the instant appeal on June 24, 1999.
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).
We find that the plain meaning of the above provision only required the
agency to pay reasonable attorney fees and expenses, and that no interest
would be awarded as part of the Agreement. We note that complainant
highlights 29 C.F.R. � 1614.501(e)(2)(i) which provides for the agency
to issue a FAD determining the amount of attorneys fees and costs within
30 days of receipt of a statement or affidavit. However, this clause
pertains to a determination of the amount to be awarded in fees only,
an award which was previously agreed to between the parties on November
30, 1998.
While complainant's counsel argues that the agency's correspondence
ensured that a certain time schedule for payment would be followed, to
the extent that complainant's counsel intended to obtain payment within
a definite time frame, the Agreement contains no language of a time
schedule for payment. Absent specified time frames for performance,
the Commission expects that the terms of a Settlement Agreement will
be implemented within a reasonable period of time. Jerauld C. Parks
v. Department of the Army, EEOC Request No. 05970925 (August 2, 2000);
Gomez v. Department of the Treasury, EEOC Request No. 05930921(February
10, 1994). With regard to the instant matter, we find that the approximate
two month delay in payment was not unreasonable. For these reasons, we
find that the agency did not breach the Settlement Agreement as claimed
by complainant. Accordingly, we AFFIRM the agency's decision that it
is in compliance with the Agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___03-22-02_______________
Date