0120131850
09-27-2013
Clarence M. Hill, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Clarence M. Hill,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120131850
Agency No. 4H-310-0091-04
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 7, 2013, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant applied for a position at the Agency's facility in Georgia.
Believing that the Agency subjected him to unlawful discrimination, Complainant filed an EEO complaint alleging that the Agency was violating the Rehabilitation Act by requiring applicants, like himself, who applied under a disabled veteran status, to provide medical documentation prior to an offer for employment. The complaint was certified as a nationwide class complaint. See Hill, et al. v. U.S. Postal Service, EEOC Appeal No. 0720080004 (May 23, 2008), request for reconsideration denied, EEOC Request No. 0520080632 (December 17, 2008)
On December 16, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. See Hill, et al. v. U.S. Postal Service, EEOC Appeal No. 0120114130 (June 7, 2012). The settlement agreement provided, in pertinent part, that:
(1) Consistent with the Rehabilitation Act, the Postal Service has been and will continue to be committed to not seeking medical information, in the form of documents or otherwise, before extending a conditional offer. With the exception of the voluntary provision of medical disability information as part of the non-competitive hiring process for persons with severe disabilities.
(2) The Postal Service has been requesting, and will continue to request confirmation of entitlement to veteran's preference as part of the application process. The Postal Service has been requesting, and will continue to request, that veterans claiming 10-point preference based on a compensable disability submit an SF 15, Application for 10-Point Veteran Preference, and a statement showing percentage of disability.
(3) The Postal Service has been refraining, and will continue to refrain, from providing medical release forms of any kind, including the PS Form 2488, Authorization Medical Report, to all applicants for completion until the applicant has received a conditional offer of employment
(4) The Postal Service has been and will continue to maintain medical records of applicants confidentially and separately from personnel files.
By letter to the Agency dated January 31, 2013, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Complainant indicated that he had applied for another position with the Agency. As part of the application process, Complainant was contacted by General Information Services, Inc., WorkOne, a third party ("Third Party"), which held a contract with the Agency to conduct background checks and drug testing of Agency applicants for employment. Pursuant to the background check, Complainant was asked to provide a medical release form which included the question: "Please check if you have or have previously had problems with" followed by a list of some 39 medical conditions, impairments, or symptoms ranging from neck and back pain to cancer to unusual fevers. Complainant believed that this constituted a medical inquiry prior to an offer of employment in violation of the Rehabilitation Act and the Settlement Agreement.
In its March 7, 2013 FAD, the Agency concluded that this form did not constitute a breach of the class settlement agreement. The Agency found that Complainant did not release any medical information to the Third Party. Therefore, there was no violation of the settlement agreement. Further, assuming the form was a violation of the settlement agreement, the Agency indicated that was not aware that the Third Party was using the form until notified by Complainant, and that it immediately directed that the Third Party cease use of the form.
This appeal followed. Complainant indicated that the Agency has once again made an unlawful medical inquiry in violation of the Rehabilitation Act by requesting medical information prior to the offer of employment. Therefore, Complainant requested that the Commission void the settlement agreement, but allow the members of the class to retain the monies awarded under the agreement.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 that the Agency, through the actions of its contractor, has breached the terms of the settlement agreement prohibiting it from requesting medical information prior to extending a conditional offer of employment to applicants.1 It is undisputed that, in the selection process at issue, the Third Party requested medical information from Complainant. The settlement agreement provided that, "[c]onsistent with the Rehabilitation Act, the Postal Service has been and will continue to be committed to not seeking medical information, in the form of documents or otherwise, before extending a conditional offer." Therefore, we determine that the Third Party's medical form constitutes a violation of the explicit terms of the settlement agreement. Whether or not the Agency was aware of the actions of its agent contractor, or whether or not Complainant actually supplied the requested information, have no relevance to determining if a breach of the agreement occurred. Therefore, we reverse the Agency's finding of no breach of the settlement agreement.
When the Commission finds that a settlement agreement has been breached, the only two remedies available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. 29 C.F.R. � 1614.504(c). In this case, we find that it is more appropriate to order specific performance of the terms of the settlement agreement, especially in light of the fact that the agreement determined the rights of a nationwide class and not just the individual rights of Complainant. The class nature of this matter weighs heavily towards preserving the agreement. Accordingly, we will order the Agency ensure that it complies with the settlement agreement in the future and that it provides evidence that it has required its contractor, the Third Party, to cease use of the medical information form that violates the terms of the settlement agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's determination finding no breach and REMAND the matter for further action in compliance with the ORDER below.
ORDER
The Agency shall take all actions necessary to ensure its immediate compliance with all the terms of the settlement agreement.
Within thirty (30) calendar days of the date this decision becomes final, the Agency shall provide documentation to Complainant and this Commission's Compliance Officer, as referenced below, that it has required the Third Party (and any other similar contractor/agent) from seeking medical information (including, but not limited to, the Third Party's medical inquiry form) as part of the application process prior to extending a conditional offer of employment.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 27, 2013
__________________
Date
1 The Agency is also reminded that, under the Rehabilitation Act, "an employer may ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer." Enforcement Guidance on Pre-employment Disability-Related Questions and Medical Examinations (Oct. 10, 1995) (web version), EEOC Notice No. 915.002, at 2; See also 29 C.F.R. � 1630.13(a); Nolan v. Dep't of the Army, EEOC Appeal No. 01975113 (Nov. 1, 2000); see also McKinley v. Dep't of the Army, EEOC Appeal No. 01933326 (Sept. 8, 1994); aff'd on reconsideration, EEOC Request No. 05950027 (Dec. 8, 1995).
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0120131850
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120131850