John Porter, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 4, 2007
0120073627 (E.E.O.C. Dec. 4, 2007)

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