01A31929_r
06-10-2003
James P. Price, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
James P. Price v. Department of the Air Force
01A31929
June 10, 2003
.
James P. Price,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A31929
Agency Nos. 5K0M98024, 5K0M0006
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated August 29, 2002, finding that it was in
compliance with the terms of the April 21, 2000 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(3) No reprisal action will be taken against the Complainant.
(4)(k) The Complainant will voluntarily accept termination of employment
if he is unable to work a regular work schedule, consisting of 8 hours
per day/40 hours per week, in the office by April 14, 2001. However,
this will not apply in the event of an injury subsequent to April 14,
2000, prevents the Complainant from working a normal work schedule.
In the event of a subsequent injury, the Agency reserves the right to
deal with such injury and medical condition in the same manner as it
would in the normal course of business.
(4)(l) The Agency will assist the Complainant in filing medical expense
reimbursement claims for past psychiatric medical expenses under workers
compensation procedures.
In a formal complaint dated February 22, 2002, complainant alleged that
he was subjected to discrimination on the bases of disability and in
reprisal for prior protected activity when:
The agency denied complainant the opportunity to participate in the AWS;
The agency changed complainant's work hours, which violated 5 U.S.C. �
6101 and 5 C.F.R. � 610.121;
The agency denied complainant a lunch break on days that complainant
had physical therapy;
The agency required complainant to attend physical therapy for accepted
OWCP claim, during non-work hours;
The agency implied that if complainant did not work a 40-hour workweek,
he would not have a job;
The agency breached a settlement agreement between complainant and the
agency dated April 21, 2000.
The agency issued a final decision dated March 27, 2002, finding that it
did not breach the April 21, 2000 settlement agreement. Regarding the
non-breach claims (identified above as claims (1) - (5)), the agency noted
that they should be processed in a separate complaint from complainant's
breach allegation. Complainant appealed the agency decision to the
Commission. In James P. Price v. Department of the Air Force, EEOC
Appeal No. 01A23064 (July 10, 2002), the Commission determined that it was
unable to ascertain whether the agency breached the settlement agreement
and therefore remanded the breach allegation for further processing.
The record reveals that following the Commission's decision, the agency
contacted complainant regarding his breach claim. In an August 15,
2002 letter, complainant lists eight reasons why provision (3)(a) of the
settlement agreement was breached. Specifically, complainant states
that (1) he was denied the chance to participate in the AWS; (2) his
work hours were changed which was prohibited under 5 U.S.C. 6101 and 5
C.F.R. 610.121; (3) he was denied a lunch break on days he had physical
therapy; (4) he was required to attend physical therapy for accepted
OWCP claim during non-work hours; (5) it was implied that if he did not
work a 40-hour workweek, he would not have a job; (6) the agency denied
complainant a lunch break on days that complainant had physical therapy;
(7) the agency failed to allow complainant a modified work schedule to
attend physical therapy during work hours; (8) he was forced to seek
employment elsewhere.
Additionally, complainant states that the agency breached provision
(4)(k) of the agreement in that when complainant had a subsequent injury
on October 10, 2000, the agency failed to deal with the injury and
medical condition in the same manner as it would in the normal course
of business, since it required him to attend physical therapy for the
accepted OWCP claim during non-work hours. Complainant states that the
agency also proceeded to terminate his employment even after he and his
doctor called to advise of his medical status and the reason for the
delays in his surgery and return to work.
Finally, complainant claims that the agency breached provision (4)(l)
in that the agency provided no assistance for reimbursement of past
psychiatric medical expenses.
In its August 29, 2002 decision, the agency concluded that it did not
breach the terms of the April 21, 2000 settlement agreement. The agency
noted that in December 2001, complainant provided a medical report
releasing him to work for 40 hours per week and requiring him to attend
physical therapy three times a week for six weeks. The agency explained
that complainant was given a 40-hour workweek and was offered a modified
schedule to allow him to attend physical therapy. The agency stated
that complainant did not complain to management about the modified
work schedule prior to his departure in February 2002. The agency
stated that there is no evidence that complainant requested to work an
alternate work schedule, that he was denied a lunch break on the days
he attended physical therapy, or that complainant complained about not
having sufficient time for a lunch break. Thus, the agency concluded
that it did not breach provision (3)(a) of the agreement.
Additionally, with regard to complainant's claim that the agency
failed to deal with his subsequent injury of October 10, 2002, in
the same manner as it would in the normal course of business, the
agency concluded that complainant was not treated any differently
than any employee who was cleared by their doctor to work 40 hours
per week and had a prescription to perform physical therapy. Finally,
with regard to complainant's claim that the agency breached provision
(4)(l) when the agency failed to provide assistance for reimbursement of
past psychiatric medical expenses, the agency notes that according to
the affidavit of Person A, Injury Compensation Program Administrator,
she does not recall complainant ever asking for assistance in filing
for reimbursement of psychiatric bills. The agency notes, however,
that Person A acknowledges providing complainant assistance in seeking
reimbursement for pharmacy bills. The agency concluded that because
there is no evidence that complainant actually sought assistance from the
agency in filing for reimbursement of past psychiatric medical expenses
or was denied assistance on matters for which he did seek assistance,
the agency finds it did not breach this provision of the agreement.
Complainant filed the present appeal from the agency's August 29,
2002 decision.
In response to complainant's appeal, the agency argues that complainant's
claim regarding the breach of the no-reprisal clause was properly
processed as a separate complaint of discrimination. The agency states
that subsequent to complainant's breach claim, he filed a formal complaint
(Agency No. 5K0M020005) on June 11, 2002, alleging discrimination based
on reprisal and disability in that the agency failed to accommodate
him, denied him alternate work schedule participation and changed his
work hours. The agency notes that this complaint was accepted for
investigation and that the report of investigation was completed on
February 19, 2003. The agency states that complainant requested a
hearing on this complaint on March 13, 2003.
With regard to complainant's remaining breach claims, the agency
reiterates its position that it did not breach provisions (4)(k) and
(4)(l) of the agreement. With regard to provision (4)(k), the agency
states that it treated complainant's subsequent injury and medical
conditions in the same manner it would have in the normal course of
business. The agency notes that complainant did not present evidence
that the agency's treatment of his subsequent injury differed from
treatment of any other similarly situated employee. The agency argues,
to the contrary, it continued to keep complainant's position available
to him for over eight months after he was required to return to full
time employment as agreed upon in this paragraph of the agreement.
With regard to the alleged breach of provision (4)(l), the agency
notes that in an affidavit from the Injury Compensation Program
Administrator who would have assisted complainant in filing medical
expense reimbursement claims, she claims that complainant never asked
her for assistance in filing a claim for psychiatric bills. The agency
notes that the Administrator acknowledges that she provided complainant
with the form used to request reimbursement of any out-of-pocket medical
expenses covered under worker's compensation. The agency notes that
complainant has not provided any evidence to contradict this assertion.
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).
At the outset, we note that with regard to complainant's claims that the
agency violated the no reprisal clause (listed above as issues (1) -
(8) in his August 15, 2002 letter), we find that the agency properly
advised complainant that these issues should be treated as a separate
complaint of discrimination. See 29 C.F.R. � 1614.504(c).
With regard to the remaining breach claims, we find that complainant
has failed to show that the agency breached the terms of the April 21,
2000 settlement agreement. Regarding provision (4)(k), we find that the
agreement does not place any requirement on the agency regarding how it
should treat complainant after an injury subsequent to April 14, 2000.
Furthermore, even if provision (4)(k) could be interpreted as placing
some requirement on the agency, we find that complainant has failed to
provide evidence that his October 10, 2000 injury was not treated in
the same manner as it would be in the normal course of business.
With regard to provision (4)(l), the agency was required to provide
complainant with assistance for the reimbursement of past psychiatric
medical expenses. Complainant has not refuted the agency's position that
he failed to request assistance in filing a claim for psychiatric bills.
Accordingly, the agency's decision that it did not breach the agreement
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
June 10, 2003
__________________
Date