01A12877_r
10-08-2002
Chester W. Olejasz, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Chester W. Olejasz v. Department of Treasury
01A12877
October 8, 2002
.
Chester W. Olejasz,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A12877
Agency No. 96-2248
Hearing No. 150-97-8210X
DECISION
Complainant files an appeal with regard to his claim that the settlement
agreement entered into between the parties has been breached by the
agency.
The record reveals that complainant, a Customs Inspector, GS-12, submitted
an application pursuant to Vacancy Announcement ENF 2/95-005DES for the
position of Criminal Investigator (Special Agent) in 1995. On September
20, 1995, complainant was tentatively selected for the position with
the condition that he meet all pre-employment requirements, including a
medical examination. However, complainant failed an Ishihara Plate Test
and on June 5, 1996, he was determined to be not medically qualified for
the position of Criminal Investigator due to his color vision defect.
The medical requirements of the Criminal Investigator position state
that normal color vision is required. It further states that the
individual must have the ability to distinguish shades of color by
color plate tests. On July 3, 1996, complainant filed a formal EEO
complaint wherein he claimed that he was discriminated against on the
basis of his disability (color blindness) when he was not awarded the
Criminal Investigator position. The agency accepted the complaint for
investigation. Subsequent to the investigation, complainant requested
a hearing before an EEOC Administrative Judge.
On March 19, 1999, the parties entered into a settlement agreement.
However, complainant claimed in May 1999, that the agency breached
the agreement. On May 21, 1999, the Administrative Judge remanded
the complaint based upon the agency's position that the Office of
Personnel Management (OPM) imposed, controlled, and implemented the
medical standards or test for color vision. The Administrative Judge
directed that the case return to the Commission within 180 days, along
with OPM's response. The response stated that the agency had to obtain
OPM's approval to establish the medical qualifications.
On June 26, 2000, the parties entered into a second settlement agreement.
The settlement agreement provided, in pertinent part, that the agency
agrees as follows:
To develop a practical color vision examination (hereinafter referred
to as the �practical examination�) to test the Complainant's color
vision acuity as relates to the ability to perform the essential job
functions of a special agent series 1811 position. As explained below
in subsection 3, the test will reflect real life situations and will
not use dots and numbers that are used in the Ishihara test.
To develop the practical examination within six months of the date of
execution of this agreement. The six-month time limit may be extended
upon mutual written agreement of the Complainant and the Agency.
. . . .
That if the Complainant passes the above referenced �practical
examination� and meets all other pre-employment requirements, which
apply to all other Special Agent Series 1811 positions, including but not
limited to, drug testing, a background investigation and pre-employment
physical and medical examinations (excluding a color vision examination)
and after appointment, successful completion of all necessary training
at the Federal Law Enforcement Training Center:
To place the Complainant in a U.S. Customs Special Agent position
(Criminal Investigator GS-1811), GS-11, Step 5, effective September
20, 1995. To retroactively reflect promotion to a GS-12, Step 2, in
the Special Agent position effective September 20, 1996. Any regularly
scheduled step increases between September 20, 1996, and the signing of
this agreement will be provided as part of this settlement.
To place the Complainant within the geographic location comprising the
Office of the Special Agent in Charge, Miami, Florida, including Resident
Agent in Charge offices.
Complainant agreed to withdraw his complaint and as follows:
To take the practical examination developed by the Agency within thirty
(30) days of the development of the test. The thirty-day limit may be
extended upon mutual agreement of the Complainant and the Agency.
Both parties further agreed that:
All decisions regarding the decision which determines what constitutes
an �essential function� of a United States Customs Special Agent Series
1811 position will be made by the Agency. The Agency's determination of
the essential functions of the Special Agent, Series 1811 position, is
final and cannot be objected to by the Complainant or his expert witness.
(i) A �practical examination� will be developed by the agency. (ii)
After the practical examination is fully developed, the Complainant's
expert witness will review the practical examination. A copy of the
Complainant's expert witness' credentials will be provided to the
[Agency]. (iii) The Complainant's expert witness may provide input to
the Agency's expert witness regarding the medical feasibility of the
proposed test.<1> The Agency's expert shall give due consideration to
any and all input from the Complainant's expert. The Agency's expert
shall reach the final decision regarding medical feasibility. The final
decision cannot be objected to by the Complainant, his representative,
or his expert witness.
By letter dated February 27, 2001, complainant informed the agency that
it had breached the settlement agreement. According to complainant,
his expert has determined that the test developed by the agency is not a
practical test, but rather is more of a clinical test. Complainant stated
that the agency acted in bad faith by producing a clinical test that is
designed to assure his failure given he previously failed a clinical test.
Complainant claimed that the test developed by the agency does not reflect
the real life situations of a special agent. Complainant further claimed
that the process utilized to select the colors was arbitrary and that the
selected colors do not correlate with the real life situations encountered
by a special agent. Finally, complainant stated that the test has been
designed just for him and is not being utilized throughout the agency
for various job classifications involving inspections and law enforcement.
On April 3, 2001, complainant filed an appeal with the Commission.
Complainant notes that thirty days have expired since he filed his
breach claim with the agency and that the matter has not been resolved.
Complainant reiterates the specific points that he presented in his
February 27, 2001 letter to the agency.
In response, the agency asserts that it has fully complied with the
terms of the settlement agreement. The agency maintains that there is no
provision in the agreement that provided that it would make system-wide
changes in the testing process or that the agency would use Special Agents
from across the nation as test subjects. The agency argues that there
is no provision in the agreement that requires that certain colors be
used in the practical examination. According to the agency, the colors
used in the test are the most basic color terms used to identify various
colors. The agency asserts complainant is arguing that the agency should
identify which colors are essential to the performance of the Special
Agent position and then only require that he identify those colors on
the test. The agency maintains that complainant has failed to specify
why he believes the test is not a practical test that reflects real life
situations and also what type of examination would meet his expectations.
The agency argues that its expert witness has explained that the test
reflects the real life situation of surveillance activity where an
observer must identify and report the clothing color of a suspect or the
color of a vehicle. According to the agency, the test utilized 2x2 inch
color samples at a distance of 100 and 400 inches which approximates the
shirt of an average size man (2x2 feet) from distances of 100 and 400
feet. The agency argues that the test reflects the real life situation
of undercover work performed by Special Agents on a routine basis.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).
With regard to the merits of complainant's allegation of breach, we
find that complainant has not established that the agency breached the
settlement agreement. Complainant challenges the nature of the test
because he believes it is not a practical test as envisioned by the
settlement agreement. However, we observe that the parties agreed in
the settlement that the agency's expert would reach the final decision
regarding the medical feasibility of the examination developed by
the agency. Therefore, complainant is unable to challenge the agency
expert's determination that this test is more likely than not to produce
an accurate diagnosis. Further, even if complainant could contest
the agency expert's determination, we note that complainant did not
show that the test is not a �practical examination.� The agency test
appears to be �practical� given that it reflects the real life situation
of surveillance activity where an observer must identify and report the
clothing color of a suspect or the color of a vehicle.
Complainant contends that a practical test was supposed to be utilized
system-wide, but instead the test has been developed just for him.
The settlement agreement, however, does not provide that the test
developed by the agency has to be utilized system-wide. We further
find that complainant failed to establish that the agency expert did not
give due consideration to the input of complainant's expert or that the
agency otherwise acted in bad faith with regard to the implementation
of the settlement agreement.
Accordingly, the agency's finding that it did not breach the settlement
agreement is proper and is AFFIRMED.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 8, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1�Medical feasibility� shall be defined as �more likely than not to
produce an accurate diagnosis.� (The footnote is part of the settlement
agreement).