01A32691_r
03-03-2004
Robert E. Vann, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Robert E. Vann v. Department of the Army
01A32691
March 3, 2004
.
Robert E. Vann,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A32691
Agency No. BODNFO0106B0270
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated March 4, 2003, finding that it was in
compliance with the terms of the December 12, 2001 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
The [Agency] agrees to do the following:
The Agency will submit a Request for Personnel Action on 15 December
2001 to process a retroactive promotion to Medical Clerk, Series 679,
GS-05 with an effective date of 8 October 2000. Complainant will receive
back pay in accordance with the Back Pay Act, 5 U.S.C. 5596, to include
all statutory and regulatory deductions. Complainant's current detail
will continue.
Without undue delay, place Complainant in a suitable position within his
qualifications and medical restrictions as a GS-05 within the Womack Army
Medical Center (WAMC). This will be accomplished by a management-directed
reassignment into a position which is within the appointing authority of
the Commander, WAMC. The Complainant will receive any required training
for the position offered.
Prior to assigning him to a new position, that job description will
be provided to the Agency's Occupational Health Physician and to the
Complainant's private Physician and/or Psychiatrist. The Occupational
Health Physician will ensure that the duties of the position are
consistent with the Complainant's medical restrictions based on the
private Physician/Psychiatrist's report (provided as detailed in
paragraph 4).
Pay attorney's fees of $900.
The complainant agrees to:
Provide a report to the Occupational Health Physician from his treating
Physician or Psychiatrist detailing his current physical and mental
limiting conditions; . . . .
By letter to the agency dated February 3, 2003, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to comply with paragraphs 3.2 and 3.3
of the agreement by placing complainant in a suitable position and by
providing a proposed job description to complainant's psychiatrist.
Further, complainant notes that he is in the same position that he was
in prior to the settlement agreement which he claims has resulted in a
deterioration of his psychological health.
In its March 4, 2003 decision, the agency concluded that it did not
breach the terms of the December 12, 2001 settlement agreement. Rather,
the agency claims that complainant failed to provide management with
a report from his physician detailing his current physical and mental
limiting conditions, as required in paragraph 4 of the agreement.
The agency notes that complainant's doctor stated only that complainant
�would function well in a non multi-task and non-medical based activities�
and �has plans to explore paralegal studies in the future and position
at JAG or Life Center with the Chaplain will enhance this plan.� The
agency noted that there are two GS positions in the WAMC Judge Advocate
Office which both have been filled for two years. Further, the agency
noted that the WAMC Chaplain's Office is staffed with a contract employee
and military personnel and does not have civilian positions. Thus, the
agency concluded that there are no suitable positions available within
the WAMC and within the appointing authority of the Commander, WAMC.
On appeal, complainant states that the agency erred in concluding
that he did not comply with paragraph 4. Complainant noted that his
doctor responded on February 4, 2002, and again on August 22, 2002,
to the agency's request for medical information. Further, complainant
notes that the agency corresponded with his attorney on November 22,
2002, stating that it was working on a job description and expected to
have one available shortly for complainant. Complainant notes that
the agency still has not placed him in a suitable position nor has
it provided a proposed job description to complainant's psychiatrist.
Complainant requests that the agency specifically implement the terms
of the settlement agreement.
The record contains a December 27, 2001 request from the agency
to complainant's physician (Doctor A) to provide a current medical
accommodation report. The letter asks complainant's physician to provide
recommendations on how WAMC can best accommodate complainant and the
specific limitations he requires.
On February 4, 2002, complainant's physician responded to the agency's
December 27, 2001 request. Doctor A noted that complainant has been
treated for Acute Stress Disorder since March 2, 2001. Doctor A stated
that he should work in a situation that will not offer further stressors
for him. Doctor A explains that �[h]e would function well in a non-multi
task and non-medical based activities.� The doctor noted complainant's
interest in paralegal studies and states that a position at JAG or Life
Center with the Chaplain will enhance his plan. Further, the doctor
noted that complainant has foot problems for which he receives treatment
and stated that �[a] position that does not require constant ambulation
and long fixed standing on his feet would help his condition.�
The record contains a July 10, 2002 letter from the agency to
complainant's physician noting that complainant has been working in
his present position since October 2000 without excessive sick leave
or performance problems. The agency questions whether complainant is
still unable to function in a non-multi-task, non-medical facility.
The letter asks that the doctor circle yes or no in response.
The record contains a copy of the agency's July 10, 2002 letter with a
circle around the yes response, indicating that Doctor A is of the medical
opinion that complainant is unable to function in a non-multi-task,
non-medical facility.
Additionally, the record contains an August 22, 2002 letter from Doctor
A to the agency stating that complainant �continues to have difficulties
with his work� and �has stayed with said job with hopes of getting a
less stressful position.�
The record also contains a November 2, 2002 electronic mail message from
the Office of the Staff Judge Advocate to complainant's attorney stating
that �a job position within WAMC at the GS 5 grade is being prepared
to determine the accuracy of duties and will be sent to his physician
for review.�
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).
In the present case, the Commission is unable to determine whether
the agency has breached the terms of the December 12, 2001 agreement.
According to paragraph 3 of the agreement, the agency was required to
place complainant in a suitable position within his qualifications and
medical restrictions as a GS-05 within the WAMC. The agreement provided
that prior to assigning him a new position, that job description
will be provided to the agency's Occupational Health Physician and
to complainant's private physician and/or psychiatrist to ensure that
the duties of the position are consistent with complainant's medical
restrictions. Paragraph 4 of the agreement further provides that
complainant will provide a report to the Occupational Health Physician
from his treating physician or psychiatrist detailing his current physical
and medical conditions.
The record reveals that complainant's doctor provided responses
on February 4, 2002, and again on August 22, 2002, to the agency's
requests for information concerning his medical condition. Although the
doctor's responses do not contain great detail, they do indicate that
complainant is still receiving treatment for Acute Stress Disorder.
Doctor A states that complainant should work in an environment that
will not offer further stress, in a position that is a non-multi task
and involves non-medical based activities. Further, the doctor notes
that complainant has foot problems and recommends a position that does
not require constant ambulation and long fixed standing on his feet.
Based on a review of the record, we find that the agency does not
provide specific evidence indicating that it placed complainant in a
suitable position within his qualifications and medical restrictions as
a GS-05 or that there were no such positions available. Although the
agency indicates on appeal that there are no suitable positions that
are �non-multi task� and �non-medical,� there are no such statements in
the record supporting that argument from appropriate agency personnel
such as the Commander or a personnel employee. Complainant has not
identified a specific suitable GS-05 position. Further, we find that
the agency failed to show that it provided a proposed job description
to complainant's physician and/or psychiatrist. Although the record
contains a November 7, 2002 electronic mail message from the Staff Judge
Advocate's Office stating that a suitable position is being prepared,
the record contains no evidence that the proposed position description
was prepared and sent to complainant's physician.
Accordingly, the agency's final decision is VACATED and the matter is
REMANDED for further processing in accordance with the Order below.
ORDER
The agency is Ordered to take the following actions:
Supplement the record with documentation indicating what actions
have been taken to find complainant a GS-05 position within WAMC in
accordance with the terms of the December 12, 2001 settlement agreement.
Specifically, the agency shall provide affidavits, sworn statements,
or other appropriate documentation indicating its efforts to locate an
appropriate position within complainant's medical restrictions and whether
such a position is available. If appropriate, the agency shall also
provide documentation showing whether it provided complainant's private
physician and/or psychiatrist a copy of the proposed job description
prior to assigning complainant to a new position.
The agency shall then issue a new final decision addressing the issue
of settlement breach, and providing complainant with a statement of his
right to appeal to this Commission. The agency shall issue the final
decision within 30 days of the date this decision becomes final.
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
March 3, 2004
__________________
Date