01996934
04-08-2002
Frank Musk, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frank Musk v. U.S. Postal Service
01996934
.April 8, 2002
Frank Musk,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996934
Agency No. 1-E-801-0048-99
DECISION
Complainant filed a timely appeal with this Commission regarding the
agency's determination that it was in compliance with the terms of the
May 13, 1999 settlement agreement into which the parties entered.<1> See
29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) Complainant will independently seek a medical evaluation of his
current job restrictions and will work with Respondent in attempting to
find a position for which Complainant is qualified.
(2) Complainant will submit his application for disability retirement
within thirty days from the date of signing of this agreement if he is
not able to find a job in the [agency].
By letters to the agency dated June 25, 1999 and August 23, 1999,
complainant claimed that the agency breached the settlement agreement
by failing to return complainant to the position he held prior to his
disciplinary suspension on November 8, 1998.<2> Complainant additionally
contends that the agency has now required him to obtain a medical opinion
from an agency doctor, including a mental evaluation, which he argues
violates the terms of the settlement agreement which only require him
to obtain an opinion from his own physician.
By memorandum dated September 19, 1999, the agency responded that despite
�exhaustive efforts to locate a suitable position� none was found. This
memorandum additionally indicated that by letter dated August 12, 1999,
it informed complainant that his case would be reviewed by the District
Reasonable Accommodation Committee, and that complainant was afforded
the opportunity to add any information, concerns, medical information
or to suggest ways for the agency to provide a suitable accommodation.
The agency further indicated that this Committee convened and reviewed
all of the pertinent information, complainant's restrictions, and all
vacant positions currently available, but that no positions were available
within complainant's restrictions, and no reasonable accommodations were
available to allow complainant to perform the essential functions of his
position. The agency then indicated that it was providing complainant
with an application for disability retirement pursuant to the terms of
the settlement agreement. The agency's November 9, 1999 final decision
reiterated the findings in its September 19, 1999 memorandum.
On appeal, complainant contends that he submitted independent medical
information to verify that he is qualified to perform his former light
duty position, and that he specifically asked the agency to reinstate
him to that position pursuant to the settlement agreement.
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 that the settlement agreement does not
specifically require the agency to reinstate complainant to his former
position. Instead, we find that the pertinent provisions require
the agency to �work with� complainant to find a suitable position.
To satisfy this provision, the agency claims that it convened its
District Reasonable Accommodation Committee with the aim of finding a
suitable vacant position for complainant. However, it provides no reason
for failing to respond to complainant's specific request for reinstatement
to his former position. Moreover, the record is devoid of any evidence
to show that complainant is not qualified for his former position, or
that the position is not available. Therefore, although the settlement
agreement does not require the agency to reinstate complainant to his
former position, it does require the agency to �work with� complainant,
and we find that the agency failed to do so when it did not address
complainant's request for reinstatement to his former position.
Accordingly, we find that the agency has breached the referenced terms
of the settlement agreement as claimed by complainant, and we REVERSE
the agency's finding of compliance, and REMAND the case back to the
agency for action as specified in the ORDER below.
ORDER
Within (30) thirty calendar days of the date that this decision becomes
final, the agency shall review complainant's request for reinstatement
to his former position and respond, in writing, to that request.
The agency must fully justify its decision in this response, and confer
with complainant as necessary when making this decision.
A copy of the agency determination regarding complainant's reinstatement
request must be submitted to the compliance Officer as 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
April 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
______________________________
1On April 5, 2000, complainant filed a �Motion to Hold Appeal in
Abeyance,� indicating that a hearing had been granted by the EEOC Denver
District Office, and that this was the relief requested in the instant
appeal. Review of the Commission's records reveals that on March 7,
2000, complainant requested a hearing on complaint no. 1-E-801-0030-00,
and that this complaint involves the same breach claim which is the
subject of the instant appeal. Therefore, it appears that this is the
hearing to which complainant refers, Hearing No. 320-A0-8186X; however,
the Denver District Office closed the case pursuant to the agency's May
5, 2000 motion to dismiss. We further note that the agency dismissed
complaint no. 1-E-801-0330-00 on the grounds that it raises the same
matter as the instant complaint, and that complainant appealed this
decision to the Commission, EEOC Appeal No. 01A02792.
2According to the record, the agency hired complainant as a custodian
in 1982 under a �disability program,' and in 1997 provided him with a
light duty assignment due to a worsening of his physical condition.
This assignment allowed complainant to sit at a desk while greeting
visitors to the agency's facility. It is this position to which
complainant seeks reinstatement.