01-2007-0301_McKendall
08-04-2008
Larry J. McKendall, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Larry J. McKendall,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120070301
Agency No. ARCENO02JUN0001
DECISION
JURISDICTION
After receiving no response to his notice of breach, complainant
filed a timely appeal with this Commission alleging that the agency
breach the Settlement Agreement dated February 18, 2003 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:
3. The Army agrees to:
a. Assist [complainant] in filing the appropriate claim forms needed to
support the reimbursement of his leave without pay during his period of
recovery from the Worker's compensations injury.
b. Assist [complainant] in filing the appropriate claim forms should
it be determined that his foot condition is a permanent impairment as
a result of the worker's compensation injury.
c. Assist [complainant] in filing the appropriate claim forms needed to
claim reimbursement for his out of pocket expenses in accordance with
OWCP fee schedule.
4. The Complainant agrees to:
The terms and considerations provided by the Army in paragraph 3;
and he agrees to assist the agency in it's obligation by completing
the appropriate claim forms and furnishing the appropriate medical
documentation needed to support his claims.
By letter to the agency dated September 5, 2006, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms. Specifically,
complainant alleged that the agency had important medical documentation
in its possession that it failed to produce to the Department of Labor.
As a consequence of such alleged failure, complainant argues that his
workers' compensation claim was denied.
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).
The preponderance of the evidence shows that on 29 June 2006,
complainant's supervisor (S1) arranged for a meeting with a representative
from the Civilian Personnel Advisory Center (CPAC), to discuss paperwork
that would be necessary to file a recurrence of his prior injury.
During the meeting, complainant was advised repeatedly by S1 and the
CPAC that when he filed a claim of recurrence, he needed to include
medical documentation with that claim. Complainant was also told
repeatedly that he had 30 days from the time a CA-2a form was filed with
the Department of Labor (DOL) to submit that medical documentation,
which is a requirement of DOL. CPAC also urged complainant to ensure
that his previous physician still accepted workers' compensation cases,
because if that doctor did not, she warned complainant that he may miss
the 30-day deadline while searching for another doctor.
On July 3, 2006, complainant filed a CA-2a form. He did not provide
DOL with any medical documentation at that time, despite the advice
that had been given to him by CPAC. By letter dated July 13, 2006,
DOL notified complainant that it had received his notice of recurrence.
DOL advised complainant in that notice that he needed to furnish medical
documentation in support of his recurrence claim and that he was allowed
30 days to submit all of the information DOL was requesting. DOL's
30-day time-period would expire on August 13, 2006. Having received no
additional information from complainant, DOL issued a Notice of Decision
on August 14, 2006 denying his claim of recurrence because complainant
did not submit medical documentation within 30 days of the date he filed
the CA-2a claiming a recurrence, despite repeated instruction from CPAC
to do so, and despite the July 13, 2006 notice from the DOL that the
medical documentation was due in 30 days.
CONCLUSION
Upon review of the record, we find that complainant failed to present
sufficient evidence to support his claim that the agency breached the
February 18, 2003 Settlement Agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 4, 2008
__________________
Date
2
0120070301
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036