0120113978
02-17-2012
David E. Fetters, Sr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
David E. Fetters, Sr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120113978
Agency No. 4K210003411
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated August 5, 2011, 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 worked
as a Rural Carrier at the Agency’s Forest Hill facility in Forest
Hill, Maryland.
Believing that the Agency subjected him to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. In brief, Complainant, who is hearing impaired,
alleged that management told him not to wear his hearing assisted
amplifier because the noise feedback was bothering his coworkers.
Complainant asserted that without his amplifier, he was unable to hear.
On March 31, 2011, Complainant and the Agency entered into a settlement
agreement to resolve the matter. The settlement agreement provided,
in pertinent part, that:
(1) Management will initiate a referral for [Complainant] to meet
with the District Reasonable Accommodation Committee (DRAC) to assess
the noise feedback coming from his hearing assisted amplifier.
(2) The referral will be done within 2 weeks of signing this agreement
or no later than April 15, 2011.
(3) [Complainant] agrees to assist DRAC with assessing his amplifier.
(4) Management will provide training to all employees at the Forest
Hill Station with regards to “Working Together with Dignity and
Respect” no later than April 22, 2011.
By letter to the Agency dated June 27, 2011, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested that
the Agency specifically implement its terms. Complainant alleged that
the Agency failed to uphold the entire agreement and that nothing had
been done to resolve the issue. In response to the Agency requesting
specifically how the Agency breached the agreement, Complainant alleged
that none of the conditions were met by the dates provided for in the
agreement and although the Postmaster contacted him to fill out some
forms, which he submitted some time after, nothing has been done.
In its August 5, 2011 response to the alleged breach, the Agency
concluded that it was in compliance with the agreement. Specifically,
the Agency found that the Forest Hill Postmaster was initially unclear
who would begin the process with the DRAC, but once he was clear he
was responsible he contacted the committee on May 4, 2011 and provided
Complaint with forms to complete. The Agency stated that Complaint did
not assist the DRAC when he failed to complete the forms, violating Term
3 of the agreement. In addition, the Agency found that it subsequently
“initiated” the referral and the agreed upon training of the
employees.
The instant appeal was filed from the Agency’s determination of
compliance. On appeal, Complainant argues that he submitted the necessary
forms to hold a meeting with the DRAC on May 20, 2011, but has yet to
get a response regarding the meeting. Complainant further argues the
Agency’s inactions spurred on further abuse by his co-workers whenever
he wore his amplifier.
ANALYSIS AND FINDINGS
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).
Failure to perform in accordance with deadlines specified in a contract
does not necessarily constitute a breach of contract. Time is not
ordinarily of the essence in a contract unless made so by express
stipulation or unless there is something connected with the purpose
of the contract and the circumstances surrounding it which makes it
apparent that the contracting parties intended that the contract must
be performed at or within the time named. Garzino v. Department of the
Army, EEOC Appeal No. 0120072847 (Sept. 27, 2007).
Following a review of the record, we find a breach of the agreement.
Complaint avers that the Agency breached the agreement because although
he submitted the requested forms on May 20, 2011, for a meeting with the
DRAC, no meeting has been scheduled and he has heard nothing. Here the
agreement called for the specific actions by the Agency by specific
dates. Further, the Commission notes that the actions required were
related to efforts to provide Complainant with reasonable accommodation,
and as such, the Commission is not convinced that the Agency took the
actions necessary as set forth in the agreement, especially since the
duty to reasonably accommodate is ongoing and should be done without
delay. Complainant asserts he filled out the paper work that was given
to him. The Agency failed to initiate the referral in a timely manner
and no subsequent meeting was held by the DRAC. Accordingly, the
Commission finds that the Agency breached the agreement. With regards
to Term 4, training employees at the station, the Agency stated it has
“initiated” training, but has provided no proof that the training
has actually occurred or been completed. The training was an integral
part of the settlement because it was to be provided to Complainant’s
coworkers in order to stem the alleged harassment Complainant states he
has been subjected to over his efforts to improve his hearing at work.
Complaint further contends situations of harassment after the settlement
was signed by the Agency’s employees. It appears these claims go to
the underlying problems with his amplifier. As such, they should be
considered with the underlying complaint.
Because the Commission finds the Agency has breached the agreement
with respect to those clauses dealing with reasonable accommodation,
the Commission is directing the Agency to reinstate the underlying
complaint. In addition, the Agency is reminded that it has an ongoing
responsibility to provide employees with disabilities reasonable
accommodation in an expeditious manner.
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 finding of no settlement breach and reinstate the underlying
complaint in this matter for continued processing as set forth below.
ORDER
The Agency is ordered to reinstate the underlying complaint in this
matter which we define as a claim of reasonable accommodation and ongoing
harassment involving Complainant’s use of devices to accommodate his
hearing impairment. The remanded claims shall be processed in accordance
with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the
Complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final. The Agency shall
issue to Complainant a copy of the investigative file and also shall
notify Complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the Complainant
requests a final decision without a hearing, the Agency shall issue
a final decision within sixty (60) days of receipt of Complainant’s
request.1
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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), at 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
February 17, 2012
__________________
Date
1 At any point during the Agency’s processing of the complaint under
this Order, the parties are free to renegotiate a settlement agreement
resolving the matter.
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0120113978
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113978