01990352
12-28-1999
Kathleen A. Altrogge, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kathleen A. Altrogge v. United States Postal Service
01990352
December 28, 1999
Kathleen A. Altrogge, )
Complainant, )
)
v. ) Appeal No. 01990352
) Agency Nos. 4-G-000-1823-93
) 4-G-000-1824-93
William J. Henderson, ) 4-G-730-1036-96
Postmaster General, ) 4-G-730-0132-97
United States Postal Service, ) 4-G-730-0152-97
Agency. )
____________________________________)
DECISION
On October 14, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated September 30, 1998,
finding that the agency was in compliance with the terms of the February
27, 1998 settlement agreement into which the parties entered.<1> See 64
Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified as EEOC Regulation
29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b). Accordingly, the appeal
is accepted in accordance with EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
The [agency] agrees to assist [complainant] in the processing of her
application for disability retirement. The agency also agrees that it
will not oppose [complainant's] application for disability retirement.
By letter dated July 15, 1998, complainant alleged that the agency
breached the settlement agreement, and requested that the agency reinstate
her complaints. Specifically, complainant alleged that the agency made
false statements on complainant's disability retirement application,
and opposed her request for retirement. Complainant also contends
that she received no aid from the agency in completing her retirement
application.
In its September 30, 1998 FAD, the agency concluded that no breach
occurred. The agency found that a Human Resources Specialist (HRS)
assisted complainant, and worked very closely with complainant on
the processing of her disability retirement application. Further,
the agency found that it responded truthfully to questions from OPM.
According to the agency, it never opposed complainant's application for
disability retirement, and OPM based its denial on the insufficiency of
medical evidence submitted by complainant.
On appeal, complainant argues that the HRS did not assist complainant,
other than to send her a copy of the disability retirement application
packet. According to complainant, the HRS left her phone number for
complainant to call with questions concerning the disability retirement
package. Complainant contends that after she completed and mailed the
packet, she received a letter acknowledging receipt of the packet,
and informing complainant that she could no longer contact HRS with
questions.
Complainant also argues that the agency actively opposed her disability
retirement application by lying and omitting relevant records from
paperwork sent to OPM. Specifically, complainant argues that the
postmaster referred to complainant's mental condition, but that no
medical documentation or statement from complainant related to her
mental condition. Complainant further argues that, contrary to the
postmaster's statement, she was never offered a light-duty position
within her medical restrictions. Regarding OPM's denial of benefits,
complainant argues that she failed to send additional information
concerning her condition because OPM asked for information concerning
fibromyalgia, but complainant did not suffer from this condition (she
claims to suffer from myositis and myofascial pain syndrome).
The record includes a copy of the agency's certification to OPM,
signed by the postmaster, which states, "[Complainant] has been given
a limited duty assignment to meet her physical limitations, but we have
been unable to provide assignment to meet her mental stress." The record
also contains a copy of complainant's Physician's Report to OPM. In this
report, complainant's physician diagnosed complainant with "(1) Chronic
Myositis (2) Chronic Pain Syndrome (3) Adjustment Disorder." According
to the report, her treatment included antidepressants. Further, the
record includes a copy of complainant's Worker's Compensation Visit Form,
dated November 24, 1998. On this form, the doctor noted that complainant
was "still stressed over all of this," and diagnosed complainant with,
inter alia, an adjustment disorder. In her formal complaint for Agency
Number 4-G-730-0152-97, dated August 25, 1997, complainant stated that
she was "suffering from job related stress . . . [which] caused severe
depression." Finally, the record includes a copy of OPM's July 8, 1998
denial of disability retirement, which stated that complainant did have
restrictions, but did not suffer from a disabling medical condition.
OPM explained that "the medical documentation simply does not support
[complainant's] claimed inability to perform [her] job duties . . . ."
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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, the agency did not violate the provisions of the
settlement agreement. The agency provided documentation as requested by
OPM, and did not oppose complainant's request for disability retirement.
The agency's certification of complainant's disability, which states that
the agency was unable to accommodate complainant's mental condition,
supports her request for retirement benefits. Complainant argues
that the agency fabricated stories regarding her mental condition,
but complainant herself referred to her "severe depression" in one
of her own formal complaints, and her physician diagnosed her with an
adjustment disorder. Further, the HRS, by complainant's own admission,
offered to answer questions concerning the disability retirement forms.
Complainant's failure to contact the HRS with questions does not amount to
a failure on the agency's part to assist complainant with the retirement
application. Accordingly, the agency's decision is AFFIRMED.
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:
December 28, 1999
____________________________
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 Equal Employment Assistant
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.