0120073627
12-04-2007
John Porter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John Porter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073627
Agency No. 4F956005605
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 9, 2007, finding that it was
in compliance with the terms of the May 3, 2005 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.
The settlement agreement provided, in pertinent part, that:
(2) The Agency agrees that if it engages in any other initiatives
relating to or that will affect counselee's medical condition/disabling
condition it will make certain that such initiatives comport with the
applicable rules and regulations of the work place.
(3) Further the agency agrees to comply with the provisions of 20
C.F.R. � 10.506 respecting contacting the employee's physicians and
providing copies of such correspondence.
By letter to the agency dated May 12, 2007, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency reinstate his complaint. Specifically, complainant alleged
that the agency breached the agreement when it contacted his physician
without also contacting him.
In its July 9, 2007 FAD, the agency concluded it was not in breach of the
agreement. It stated that it contacted the physician for clarification
regarding recent medical documentation.
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 O 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, the agency has failed to show it complied with
the settlement agreement. The agency did not provide the Commission
with copies of the relevant correspondence. Rather, in its decision it
mentions contacting the people responsible but does not provide statements
from them. Further, it appears from the decision that it does not deny
contacting the physician, and provides no documentation showing it also
provided complainant with a copy of its correspondence.
Complainant is reminded that if he wishes to have his original complaint
reinstated, he must return the $900 which he was awarded as part of
the agreement, and his work hours and days off would change to what
they were at the time of his complaint. In other words he must return
to the status quo. In the alternative, complainant may ask that the
terms of the agreement stand and for specific performance - copies of
all correspondence related to contacts with his physician.
ORDER
The agency is ordered to notify complainant of his option to either return
to the status quo prior to the signing of the settlement agreement or
to accept the specific performance of the agreement. The agency shall
so notify complainant within thirty (30) calendar days of the date this
decision becomes final. The agency shall also notify complainant that
he has fifteen (15) calendar days from the date of his receipt of the
agency's notice within which to notify the agency either that he wishes
to return to the status quo prior to the signing of the agreement or
that he wishes to allow the terms of the agreement to stand and give to
complainant the copies of any correspondence to and from his physicians.
Complainant shall be notified that in order to return to the status quo
ante, he must return any benefits received pursuant to the agreement.
The agency shall determine any payment due complainant, or return
of consideration or benefits due from complainant, within thirty (30)
calendar days of the date this decision becomes final, and shall include
such information in the notice to complainant.
If complainant elects to return to the status quo ante and he returns
any monies or benefits owing to the agency, as specified above, the
agency shall resume processing complainant's complaint from the point
processing ceased pursuant to 29 C.F.R. � 1614.108 et seq. If complainant
elects not to return to the status quo ante, i.e., not to return any
consideration owing the agency, the agency shall notify complainant
that the terms of the settlement agreement shall stand and submit to
complainant copies of any correspondence to and from his physicians.
A copy of the agency's notice to complainant regarding his options,
including the determination of consideration due or owing, as well
as a copy of either the correspondence reinstating the complaint for
processing or the correspondence notifying complainant that the terms of
the agreement will stand and related medical correspondence was given
to complainant, must be sent to the Compliance Officer, as referenced
below.
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
December 4, 2007
__________________
Date
2
0120073627
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073627