01a50721
01-13-2005
Rakesh D. Bhargava, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rakesh D. Bhargava v. United States Postal Service
01A50721
January 13, 2005
.
Rakesh D. Bhargava,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50721
Agency No. 4J-600-0119-02
DECISION
Complainant appeals to the Commission from the agency's September 21,
2004 decision finding no breach of a settlement agreement. On May 10,
2002, the parties resolved complainant's complaint by entering into a
settlement agreement which provided, in pertinent part, that complainant
would receive the following:
The Postmaster will provide sit down light duty work for 4 hours per day
for [the complainant]. This type of work includes, but is not limited
to: vacation holds, certified mail notices, COD mail, express mail,
nixie mail, etc.
By correspondence to the agency signed August 2, 2004, complainant alleged
that the agency was in breach of the May 10, 2002, settlement agreement.
Specifically, complainant alleged that the agency breached the settlement
agreement when he was sent home one and one-half hours early on July 21,
2004. The agency issued a decision dated September 21, 2004, finding
no breach of the settlement agreement. Specifically, the agency found
that complainant had returned to work from medical leave on July 21,
2004, with medical restrictions. The agency contended that complainant
was sent home early because of complainant's medical limitations and
work availability. Complainant appealed the decision to the Commission.
On appeal, complainant makes no contentions. The agency contends that
complainant did not show that the agency failed to abide by the terms
of the settlement agreement.
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).
It is undisputed that complainant was sent home one and one-half hours
early from his light duty work by the Postmaster on July 21, 2004.
The Postmaster stated he sent complainant home because of the medical
restrictions that complainant was placed under upon his return to work
on July 21, 2004. Further, he stated that the availability of work
precluded complainant from performing light duty work. Complainant
contended that he had no medical restrictions that prevented him from
performing light duty work. By form dated July 21, 2004, the agency's
medical unit official recommended complainant be assigned light duty.
The agreement between the complainant and the agency clearly obliged the
agency to provide complainant with sit down light duty for four hours a
day without resort to extrinsic evidence of his medical condition which,
in any event, cleared him to perform light duty work. The Postmaster's
action in sending complainant home because of medical restrictions and
lack of light duty work was in breach of the agency's obligation under
the settlement agreement. Therefore, the agency's decision finding no
breach of the May 10, 2002 settlement agreement is REVERSED. We REMAND
the case back to the agency for specific enforcement of the settlement
agreement pursuant to the Order herein.
ORDER
The agency shall specifically enforce the settlement agreement. The
agency shall, within 30 days of the date this decision becomes final,
provide complainant with 1.5 hours of excused administrative leave for
July 21, 2004, and restore all annual or sick leave, if any, that was
taken that day. A copy of documentation that demonstrates that the
agency has provided administrative leave and effected this increase
in complainant's annual or sick leave balance<1> must be sent to the
Compliance Officer as referenced herein.
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
January 13, 2005
__________________
Date
1 It is not clear from the record what type
of leave, if any, was taken by complainant.