01A42380
07-29-2004
Michael A. Goldberg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael A. Goldberg v. United States Postal Service
01A42380
July 29, 2004
.
Michael A. Goldberg,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42380
Agency No. 1C-191-0055-03
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated February 13, 2004, finding that it was in compliance
with the terms of a September 12, 2003 settlement agreement. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The September 12 ,2003 settlement agreement provided, in pertinent
part, that:
[Complainant] will visit an orthopedic specialist in this area and
submit an evaluation to [Ms. J]. As part of this visit [complainant]
will provide the local orthopedist with copies of his medical records from
[Dr. R] in California and the jobs functional environmental requirements.
Within two weeks of receiving this information [Ms. J] will copy the
report, send it to the Senior Medical Specialist, [Dr. K], in Pittsburgh,
PA and receive a report from [Dr. K].
If [Dr. K], in light of the new information provided, determines that
[complainant] is physically able to do this job, he will be hired at
the start of the next pay period after a drug test is conducted.
If [Dr. K] determines that [complainant] is physically unfit for this job
then Ms. J and Ms. M] will consult with the Manager of Human Resources
about how to proceed.
[Complainant] may provide a letter on his behalf for [Dr. K], further
explaining the situation and his ability to do this job.
According to the agency, complainant alleged breach of the settlement
agreement in a letter dated December 15, 2003.<1> Complainant purportedly
alleged that the agency violated the agreement when it failed to hire him.
In its February 13, 2004 decision, the agency concluded that it was
in compliance with the terms of the settlement agreement. The agency
reasoned that on October 14, 2003, Ms. J received correspondence from
Dr. K, wherein he indicated that there is a significant risk that
complainant would have a recurrence of an acute flare-up of his lower
back disc problem with the Maintenance Mechanic, MPE-8, position.
Complainant's records were also reviewed by the agency's Associate
Area Medical Director, who agreed with Dr. K's opinion. Thereafter,
complainant was notified that his request for reconsideration for the
Maintenance Mechanic position was denied.
On appeal, complainant first argues that the agreement was breached when
Ms. J failed to received Dr. K's report within two weeks. According
to complainant, the two-week time frame was part of the agreement and
�although a technicality,� constitutes breach of the agreement. Second,
complainant contends that the agency did not bargain in good faith.
Complainant asserts that Dr. K failed to consider the evaluation completed
by complainant's own doctor, finding no limitations which would preclude
complainant from performing all postal employee duties, and erroneously
relied on outdated reports. Complainant disputes Dr. K's conclusions,
asserting that the reports are �riddled with inaccuracies and untruths.�
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).
As noted above, complainant contends that the agency breached the
agreement when Dr. K did not submit a report to Ms. J within the
appropriate time period. To the extent that the agency was required to
receive a report from Dr. K within two weeks of complainant's submission,
it appears that the report was received within three weeks (October 14,
2003), we find this to be a non-material breach.
Regarding complainant's challenges to Dr. K's conclusions, that there was
a significant risk of complainant's condition recurring, we find these to
be outside the terms of the agreement. The settlement agreement required
Dr. K to determine whether complainant was physically able to do the job,
and went on to address the circumstance wherein complainant was physically
able to do the job, as well as the possibility that he was physically
unfit for the position. The terms did not obligate Dr. K to reach a
particular conclusion or for the agency to hire complainant. Therefore,
we do not find that complainant has established a breach of the September
12, 2003 agreement.
Accordingly, the agency's decision is hereby 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
July 29, 2004
__________________
Date
1 The Commission notes that a copy of complainant's allegation of breach
letter is absent from the record, but we are able to make a determination
on the matter based on the present record which includes complainant's
appeal statement.