01976619
08-25-2000
Robin S. Nitz, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Nitz v. United States Postal Service,
Appeal No. 01976619
08-25-00
.
Robin S. Nitz,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01976619
Agency No. 4-J-493-1136-95
DECISION
Complainant timely filed an appeal with the Commission for a determination
regarding whether the agency breached the settlement agreement that
resolved her complaint of unlawful employment discrimination in violation
of Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. �791.<1>
The appeal is accepted in accordance with EEOC Order No. 960, as amended.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
refered to as 29 C.F.R. �1614.402(a)).
The issue presented is whether the agency breached a settlement agreement
that it entered into with complainant in July of 1995. The agency employed
complainant as a part-time letter carrier at its facility in Benton
Harbor, Michigan. She placed a bid on a full-time carrier route, but was
notified by the postmaster that she was not the senior qualified bidder
for the position. Investigative File (IF) 194. She filed a complaint
in which she alleged the postmaster discriminated against her on the
basis of physical disability (multiple sclerosis) by not accepting her
bid for the rural carrier route. On July 11, 1995, the parties entered
into a settlement agreement which contained the following provision:
The [agency's] medical and health unit will make an appointment with a
board-certified specialist and notify me of the time and date no later
than 7-28-95. This specialist is to determine if [complainant] can meet
the essential functions of a regular rural carrier position. Based on the
opinion of the board-certified specialist, if [complainant is] able to
carry the route with or without reasonable accommodation, without causing
any undue hardship on the service under the law, management will assign
[complainant] to [rural route 4]. The said board-certified specialist
will be selected from a list of 3 specialists in the medical field for the
condition in question. Selection will be made by the alternate striking
of names by the employer and [complainant and/or her] representative.
IF 181. Complainant and the postmaster mutually agreed on the selection
of a contract physician to conduct the fitness-for-duty examination.
IF 163. The examination was conducted on September 28, 1995, and
the examining physician notified the postmaster of the results of
that examination. IF 173, 175. Based upon the physician's report, the
postmaster determined that complainant could not fulfill the requirements
of a regular rural carrier, and consequently awarded rural route 4 to
another bidder. IF 176.
The settlement agreement specified that complainant would be given
rural route 4 if the board-certified specialist retained to conduct the
fitness-for-duty examination concluded that complainant could carry the
route, with or without reasonable accommodation, without imposing an undue
hardship upon the agency. IF 181. The contract physician conducted the
examination on September 28, 1995. In an eight-page report, the contract
physician set forth his findings and conclusions. In paragraph (1) of
the report, the contract physician stated that complainant was capable
of performing the functional requirements of a rural carrier position,
but that she would not be able to safely lift seventy pounds or manage
steps and other irregular terrain, particularly in slippery environments.
IF 168. In paragraph (5), the physician noted that complainant's
multiple sclerosis and its effects on her ability to control her arms
and legs raised the potential of complainant being hazardous to herself
and others when she drove. IR 167. He also noted that exacerbations
and remissions, as well as the disease itself, could not be predicted.
IF 167. He stated in his concluding paragraph:
In summary, [complainant] can't fulfill her job without some assistance or
�slack.� She has been doing a full-time job over the last week and [has]
been getting by. It is reasonable with some allowances that the patient
will be able to tolerate a full-time job. She will be at increased risk
for falling. If she lets herself get fatigued there will be increased
risk of exacerbation of the MS. The MS though can exacerbate with or
without a change in fatigue, given the nature of the condition.
IF 166-67. On the basis of the contract physician's report, the agency's
medical officer notified the postmaster that complainant could not fulfill
the job requirements of a full-time regular rural carrier position without
assistance or reduction in the essential requirements of the position.
IR 174. The medical officer made the following findings:
1. [Complainant] is moderately ataxic with regard to walking and turning.
She was unsteady when testing her gait and balance, and would have fallen
without assistance.
2. [Complainant] may not be able to lift heavy parcels without
assistance and over irregular ground terrain, especially in slippery
environmental conditions. It is advised [that] she have assistance or
leave notification for the customer to pick up the parcel at the postal
facility. However, this does not provide quality customer service and
[inconveniences] the customer.
3. Technically, if [complainant] is required to do her job without
assistance and/or variance from the essential job requirements, she
would not be able to perform then safely.
4. Additionally, it is noted that the effects of her multiple sclerosis
on her ability to control her arms and legs makes her somewhat hazardous
to herself and others when operating a motor vehicle, especially as her
multiple sclerosis progresses.
IF 175. Based upon the medical officer's recommendation, the postmaster
notified complainant, by letter dated November 24, 1995, that complainant
would be placed in off-duty status, retroactive to November 17, 1995,
on the grounds that complainant might be injurious to herself or others.
The notice further stated that:
It appeared from recent medical evaluations from [the contract physician]
that you cannot perform the essential duties of your position in a safe
manner. Pending further investigation, you are hereby advised that you
will remain in an off-duty status until further notice.
IF 177. On November 30, 1995, complainant wrote a letter to the EEO
investigator charged with processing her case, in which she stated
that the agency failed to adhere to the stipulations contained in the
July 1995 settlement agreement. She stated that the agency's medical
officer misinterpreted the contract physician's report. She argued that
the medical officer's conclusion that complainant would not be able to
operate a motor vehicle safely was speculation and not based on the
contract physician's complete medical opinion. IR 179. On December
13, 1995, complainant wrote a second letter to the EEO investigator,
stating that she wished to have her complaint reinstated. IF 185.
The agency thereafter issued a final decision in which it determined
that there was no breach of the agreement. It is from this decision
that complainant now appeals.
Settlement agreements are contracts between complainant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Herrington v. Department of Defense - Defense Commissary Agency, EEOC
Request No. 05960032 (December 9, 1996) (face of the agreement best
reflects the understanding of the parties); Eggleston v. Department
of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In
interpreting settlement agreements, the Commission has applied the
contract principle known as the "plain meaning rule" which holds that
where a writing is unambiguous on its face, its meaning is determined
from the four corners of the instrument without resort to extrinsic
evidence. Klein v. Department of Housing and Urban Development, EEOC
Request No. 05940033 (June 30, 1994); Brown v. Department of Commerce,
EEOC Request No. 05921059 (June 24, 1993).
Complainant initially argues that the agency breached the settlement
agreement by relying on the medical officer's interpretation of the
contract physician's report. The settlement agreement executed by the
parties on July 11, 1995, unambiguously states that the agency was to
arrange for a fitness-for-duty examination. The agency accomplished
this by having its medical officer refer complainant to the contract
physician. IR 173. The examination was conducted on September 28, 1995.
Complainant and the agency's medical officer both agreed to the selection
of the contract physician, and there are no indications that complainant
objected to that choice. IF 163-65. The agreement clearly specified
that the agency would assign complainant to rural route 4 if the contract
physician determined that she could perform the essential functions of
that position. The contract physician conducted the examination and issued
a report that included his recommendation. On the basis of the contract
physician's report, the medical officer concluded that complainant's
multiple sclerosis prevented her from performing the essential functions
of the rural carrier position. He provided his opinion of the results
of the examination to the postmaster, as he was obliged to do under the
terms of his employment with the agency. Complainant has not presented
any evidence in support of her assertion that the agency was precluded
by the settlement agreement from relying on the opinions of its own
medical officer.
Next, complainant maintains that the medical officer's opinions are
irrelevant and misstate the contract physician's opinions. Contrary to
complainant, however, we find that the conclusions drawn by the medical
officer are entirely consistent with the contract physician's report.
The medical officer's conclusion regarding complainant's ability to
walk and her unsteadiness are supported by the contract physician's
findings that complainant has exhibited the staggering and walking
incontinence normally associated with multiple sclerosis, and that
her walking remained unsteady. IF 172-73. The medical officer's
conclusion regarding complainant's inability to lift heavy parcels and
walk over terrain is taken from paragraph (1) in the �discussion� section
of the report. IF 168. The medical officer's remaining conclusions
are likewise drawn from paragraph (5) and the summary paragraph of the
contract physician's report. IF 166-67. Complainant merely challenges
the medical officer's interpretation of the contract physician's findings.
She has not presented any documents or testimony showing that the medical
officer made his determination in a manner that was inconsistent with
the terms of the July 1995 settlement agreement.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that the agency breached the July 11, 1995 settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
__08-25-00________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.