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Home Discrimination Claims ADA

Ava Marshall awarded $100,000.00 settlement

civilrightsfed by civilrightsfed
February 2, 2020
in ADA, Chain Of Command, Disabilities, Disability Discrimination, Discrimination Claims, Pre Existing Medical Condition
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This EEOC Claim was awarded in the hundred thousand range. Lets look deeper into the discrimination, the evidence, and how Ava won her EEOC discrimination claim against the Department of Agriculture. 

department of agriculture

Ava Marshall,

Complainant,

v.

Ed Schafer,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01200629711

Agency Nos. 010765, 970400, 030162

DECISION

Complainant filed an appeal from the agency’s March 16, 2006 final

decision concerning her equal employment opportunity (EEO) complaint.

This appeal concerns only the matter of attorney’s fees in connection

with a settlement agreement dated September 30, 2005.  For the following

reasons, the Commission AFFIRMS the agency’s final decision.

Previously, complainant filed a complaint against the agency alleging

that the agency had failed to provide her with a reasonable accommodation

for her disability (Multiple Sclerosis), specifically, to permit her to

work from home (telework).  In Ava Marshall v. Department of Agriculture,

EEOC Appeal No. 01A31773 (June 3, 2005), the Commission found that the

agency discriminated against complainant in violation of the Section 501

of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. as

alleged with respect to reasonable accommodation.  The agency was ordered

to provide complainant with an opportunity to establish the amount of

compensatory damages to be awarded, attorney’s fees, restoration of leave

used or cash equivalent, and other equitable relief.    The agency asked

the Commission to reconsider its decision in EEOC Appeal No. 01A31773,

however, before the Commission issued its decision on reconsideration,

the parties notified the Commission that they had reached a settlement.

The September 30, 2005 settlement agreement provides, in pertinent part

that:

1. To pay Complainant a lump sum of One Hundred Thousand Dollars

($100.000.00). Within thirty (30) calendar days from the effective

date of this Agreement, the Department will submit documentation to the

National Finance Center required to effect the payment of the lump-sum

amount of One Hundred Thousand Dollars ($100,000.00) to Complainant. The

Department makes no representations regarding any federal, state, or

local tax liability which maybe incurred by Complainant as a result

of this payment. Taxes will not be taken from the amount being paid

to Complainant, but the Department will report this amount to the

Internal Revenue Service. This lump-sum payment will be made by check

to Complainant […] and Complainant’s Counsel . . .

2. To pay complainant’s reasonable attorney’s fees, costs, and

expenses to Complainant’s Counsel, not to exceed Ten Thousand Dollars

($10,000) in accordance with 29 C. F. R. § 1614.50l(e).

3. Within fifteen (15) calendar days from the effective date of the

Agreement, Complainant’s Counsel will provide a fee petition in accordance

with 29 C. F. R. § 1614.501 (e) to Department’s Counsel listed below

which contains a list of services rendered for Complainant’s formal

complaints itemized by date, number of hours, summary of the task,

rate, and attorney’s name in the form of contemporaneous time records;

and documentation of costs and expenses. The Department, with the

assistance of the Department’s Counsel, will make a determination as to

the payment of reasonable attorney’s fees, costs, and expenses not to

exceed Ten Thousand Dollars ($10,000.00), within thirty (30) calendar

days of receipt of the attorney’s fees, costs, and expense petition

in accordance with the Laffey Matrix, the Equal Access to Justice Act,

and 29 C. F . R. § 1614.501(c).

4. Within fifteen (15) calendar days from the date of the Department

determination as to the payment of  reasonable attorney’s fees, costs,

and expenses not to exceed Ten Thousand dollars ($10,000.00). The

Department will submit documentation to the National Finance Center

required to effect the payment of the amount stated in the Department’s

determination, not to exceed Ten Thousand Dollars ($10,000.00) . . . .

5. In accordance with 29 C.F.R. § l614.501(e)(2)(ii)(A), the

Department’s determination as to the reasonableness of attorney’s fees,

costs, and expenses not to exceed Ten Thousand Dollars ($10,000.00)

will include a notice of right to appeal to the EEOC along with EEOC Form

573, Notice of Appeal/Petition and will include the specific reasons for

determining the amount of the award not to exceed Ten Thousand Dollars

($10,000.00).

The settlement agreement is signed by complainant, her attorney and

two agency representatives. Complainant later submitted to the agency,

a petition for attorney’s fees and costs, dated January 13, 2006.

The verified fee petition requests a total payment of $154,204 for

attorney’s fees and costs, and states at the outset of the petition that:

All fees are associated with all causes, claims and complaints

as listed in the Marshall/RD/USDA Settlement Agreement.

The Agreement incorporates all and all are billed.

The agency issued a final decision dated March 15, 2006, regarding

complainant’s request for attorney’s fees and costs.  Therein, the agency

acknowledged that the terms of the settlement agreement of September

30, 2005, provided that complainant would be paid the sum of $10,000 at

most for all attorney’s fees and costs.  The agency declined to pay any

additional sums requested.

On appeal, complainant requests additional time to submit her brief

in support for the reason that communication between complainant and

complainant’s attorney has been hampered by complainant’s deteriorating

medical condition, exacerbated by the agency’s discriminatory actions.

Complainant, through counsel, claims that the settlement agreement of

September 30, 2005, was executed while complainant was under severe

distress, that she was coerced into signing it and that the agreement

was not achieved at arm’s length.   Complainant, through counsel, adds

that her attorney is presently under medical care and requires additional

time to submit supporting evidence to support complainant’s appeal.2

 

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 intent, that controls the contract’s construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(August 23, 1990).

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). A settlement agreement may be void,

or voidable, if one of the parties establishes that assent was obtained

by duress or coercion. See Mosley v. St. Louis Southwest Railroad, 634

F.2d 942 (5th Cir. 1981); Hodge v. Department of the Army, EEOC Appeal

01954577, (December 7, 1995).

As an initial matter, we note that complainant does not allege that the

terms of the agreement were breached.  Instead, complainant contends that

the agreement with respect to attorney’s fees should be, essentially,

voided because she was coerced into signing the agreement. The Commission

examines coercion claims with close scrutiny. The party raising the

defense of coercion must show that there was an improper threat of

sufficient gravity to induce assent to the agreement and that the assent

was in fact induced by the threat.  Such a threat may be expressed,

implied or inferred from words or conduct, and must convey an intention

to cause harm or loss. A complainant’s bare assertions will not justify

a finding of coercion. Lenihan v. Department of the Navy, EEOC Request

No. 05960605 (December 5, 1995).

In the instant case, we find the plain language of the settlement

agreement calls for payment of attorney’s fees and costs in an amount not

to exceed ten thousand dollars.  We find that complainant was represented

by counsel at the time she signed the agreement.  There is no evidence

of coercion surrounding the entering of the agreement. Accordingly we

find the agreement was not the product of undue persuasion or duress.

We AFFIRM the agency’s final order regarding the award of attorney’s

fees and costs in the amount of $10,000.00.

STATEMENT OF RIGHTS – ON APPEAL

RECONSIDERATION (M0408)

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 (S0408)

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 (Z0408)

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

May 5, 2008

__________________

Date

1 Due to a new data system, the Commission has redesignated the instant

case with the above- referenced appeal number.

2 As of April 15, 2008, no brief in support of complainant’s appeal had

been received by the Commission.

2

0120062971

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C.  20036

6

0120062971

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