Rakesh D. Bhargava, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 13, 2005
01a50721 (E.E.O.C. Jan. 13, 2005)

01a50721

01-13-2005

Rakesh D. Bhargava, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Rakesh D. Bhargava v. United States Postal Service

01A50721

January 13, 2005

.

Rakesh D. Bhargava,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A50721

Agency No. 4J-600-0119-02

DECISION

Complainant appeals to the Commission from the agency's September 21,

2004 decision finding no breach of a settlement agreement. On May 10,

2002, the parties resolved complainant's complaint by entering into a

settlement agreement which provided, in pertinent part, that complainant

would receive the following:

The Postmaster will provide sit down light duty work for 4 hours per day

for [the complainant]. This type of work includes, but is not limited

to: vacation holds, certified mail notices, COD mail, express mail,

nixie mail, etc.

By correspondence to the agency signed August 2, 2004, complainant alleged

that the agency was in breach of the May 10, 2002, settlement agreement.

Specifically, complainant alleged that the agency breached the settlement

agreement when he was sent home one and one-half hours early on July 21,

2004. The agency issued a decision dated September 21, 2004, finding

no breach of the settlement agreement. Specifically, the agency found

that complainant had returned to work from medical leave on July 21,

2004, with medical restrictions. The agency contended that complainant

was sent home early because of complainant's medical limitations and

work availability. Complainant appealed the decision to the Commission.

On appeal, complainant makes no contentions. The agency contends that

complainant did not show that the agency failed to abide by the terms

of the settlement agreement.

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).

It is undisputed that complainant was sent home one and one-half hours

early from his light duty work by the Postmaster on July 21, 2004.

The Postmaster stated he sent complainant home because of the medical

restrictions that complainant was placed under upon his return to work

on July 21, 2004. Further, he stated that the availability of work

precluded complainant from performing light duty work. Complainant

contended that he had no medical restrictions that prevented him from

performing light duty work. By form dated July 21, 2004, the agency's

medical unit official recommended complainant be assigned light duty.

The agreement between the complainant and the agency clearly obliged the

agency to provide complainant with sit down light duty for four hours a

day without resort to extrinsic evidence of his medical condition which,

in any event, cleared him to perform light duty work. The Postmaster's

action in sending complainant home because of medical restrictions and

lack of light duty work was in breach of the agency's obligation under

the settlement agreement. Therefore, the agency's decision finding no

breach of the May 10, 2002 settlement agreement is REVERSED. We REMAND

the case back to the agency for specific enforcement of the settlement

agreement pursuant to the Order herein.

ORDER

The agency shall specifically enforce the settlement agreement. The

agency shall, within 30 days of the date this decision becomes final,

provide complainant with 1.5 hours of excused administrative leave for

July 21, 2004, and restore all annual or sick leave, if any, that was

taken that day. A copy of documentation that demonstrates that the

agency has provided administrative leave and effected this increase

in complainant's annual or sick leave balance<1> must be sent to the

Compliance Officer as 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

January 13, 2005

__________________

Date

1 It is not clear from the record what type

of leave, if any, was taken by complainant.