Augustine R. Gomez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A22213_r (E.E.O.C. Sep. 18, 2002)

01A22213_r

09-18-2002

Augustine R. Gomez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Augustine R. Gomez v. United States Postal Service

01A22213

September 18, 2002

.

Augustine R. Gomez,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A22213

Agency No. 1I-681-0018-98

DECISION

Complainant filed an appeal with this Commission regarding the agency's

compliance with the terms of the April 27, 2000 settlement agreement

into which the parties entered.

The settlement agreement provided, in pertinent part, that<1>:

(2) The parties will endeavor to mutually select a medical expert to

make [a] determination respecting [complainant's] ability to perform the

essential functions of the position formerly known as Mail Processor,

with or without reasonable accommodation. . . . .

The first position for evaluation by the medical expert, as referenced

above, shall be that of an OCR Operator, Level 5, (formerly known as Mail

Processor). In the event the medical expert determines [complainant]

is capable of performing the essential functions of said position, with

or without reasonable accommodation, [complainant] shall be placed into

the next vacant and/or available position when it arises, consistent

with the terms of the collective bargaining agreement.

In the event [complainant] is determined by the medical expert to

be unable to perform the essential functions of the OCR Operator,

Level 5, position, with or without reasonable accommodation, then the

medical expert shall determine, pursuant to subsequent evaluation,

[complainant]'s capabilities of performing the essential functions of

the following positions:

custodian, window clerk, CFS clerk, flat sorter, and distribution clerk,

to include Nixie clerk and the Registered room.

In the event [complainant] is found capable of performing the essential

functions of one or more of the above-referenced positions, the Agency

shall place him into the next available and/or vacant position when it

arises, consistent with the terms of the collective bargaining agreement.

By letter dated October 29, 2001, the agency notified complainant that

the agency's "Reasonable Accommodation Committee" had determined that

complainant could not perform the essential functions of any of the

positions referenced in the settlement agreement.

By letter to the agency dated November 7, 2001, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency reinstate his complaint. Specifically, complainant alleged

that the medical expert did not take into consideration the fact that

complainant is currently working in a position (outside the agency) with

duties very similar to several agency jobs. Complainant also argues that

he has not been advised of the findings of the "Reasonable Accommodation

Committee" upon which the Committee based its determination. Further,

complainant states he was not informed of his appeal rights.

By letter dated November 15, 2001, an agency representative responded to

complainant's allegations by stating that his November 7, 2001 allegation

of breach and request to reinstate his complaint would be forwarded to the

appropriate agency official for response. No subsequent determination

of the agency's compliance with the settlement agreement appears in the

record before the Commission.

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 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 instant case, we find the record is insufficient for the Commission

to determine whether the agency has fulfilled its obligations under the

terms of the settlement agreement. Significantly, the findings of the

medical expert referenced in paragraph 2 of the agreement do not appear

in the record. Accordingly, we will direct the agency to supplement

the record with the findings of the medical expert and to determine the

agency's compliance with the terms of the settlement agreement.

Accordingly, we REMAND this matter to the agency to supplement the record

with the findings of the medical expert referenced in the settlement

agreement and to render a determination of whether the agency has breached

the April 27, 2000 settlement agreement.

ORDER

The agency shall supplement the record with a copy of the report

or findings of the medical expert as described in the April 27, 2000

settlement agreement. Within 30 days of the date this decision becomes

final the agency shall issue a new decision determining whether the

agency breached the settlement agreement. A copy of the agency's new

decision must be sent to the Compliance Officer referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 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 (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 (R0900)

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 (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

September 18, 2002

__________________

Date

1We have numbered the paragraphs of the

settlement agreement for reference.