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.