0120121672
08-03-2012
Ruben Arreola, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Ruben Arreola,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121672
Agency No. ARCCAD11MAR00909
DECISION
Complainant filed a timely appeal with this Commission from a final Agency determination (FAD) dated January 12, 2012, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to his complaint, Complainant worked as an Aircraft Electrician at the Agency's Corpus Christi Army Depot in Corpus Christi, Texas.
Complainant's supervisor (S1) stated Complainant was on light duty since 2008. In May 2008 the Agency's Occupational Health Clinic (OHC) made a Dispensary Permit for Complainant with various permanent restrictions, i.e., no pushing, pulling, lifting or twisting more than 10 pounds of force (pressure), no work above the shoulder, no work with elbows fully extended, no grasping with more than 10 pounds of force (pressure), no repetitive use of the hands, no vibrating hand tools, and no pushing, pulling, carrying or twisting while standing with more than 20 pounds of force. The record suggests the Dispensary Permit was based on medical documentation Complainant provided in May 2008 for a service (military-National Guard) related neck injury.
In October 2010 Complainant went to OHC and gave a letter written in October 2008 from his private orthopedist with a full release back to work. In reaction S1 gave Complainant a letter citing him for conduct and behavior for misleading his supervisors for the last two years. S1 wrote that while Complainant was on permanent limitations for his back and neck and temporary limitations for carpel tunnel, he had medical documentation releasing him to full duty in October 2008 that he did not give to OHC until October 2010. Complainant contended that the October 2008 medical letter was misinterpreted. According to a statement by an OHC staffer Complainant told him it meant full duties except limitations. On November 2, 2010, OHC made another Dispensary Permit indicating that Complainant was to remain on his permanent limitations stemming from military-National Guard service.
Believing that the Agency subjected him to unlawful discrimination Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process, and filed an EEO complaint in May 2011 alleging disability and reprisal discrimination. The allegations accepted for investigation were OHC staff not allowing Complainant to update his medical documentation on November 2, 2010, S1 requesting additional medical documentation in December 2010, and the Agency proposing his suspension for five days in January 20111 and then doing so in March 2011.
According to the counselor's report S1 stated that Complainant was not doing the essential functions of his position because of his injuries. Complainant stated he was could perform the essential functions except installing converters and working overhead, according to the counselor's report.
On August 25, 2011, Complainant and the Agency entered into a settlement agreement resolving the EEO complaint. The settlement agreement provided, in pertinent part, that:
(1) Agency will allow Complainant to remain in the Directorate of Aircraft Production, Blackhawk Assembly Division, Blackhawk Avionic/Electrician Branch, 524D0 with current supervisor...[S1] and with Complainant's current limitations, to date in accordance with Complainant's...OHC file, until such time as Complainant can provide the proper medical documentation to show the above referenced specific limitation no longer exist[s].
(2) Agency will rescind 5 day suspension dated 2 March 2011, for Creating a Disturbance and Defiance of Authority from Complainant's file and in its place issue a 3 year letter of reprimand.
By letter to the Agency dated October 27, 2011, Complainant alleged that the Agency breached term 1 of the settlement agreement. Specifically, he alleged that on September 8, 2011, and October 11, 2011, he gave OHC medical documentation, but he has not been allowed to return as an Electrician Aircraft Mechanic with referenced specific limitation no longer existing, and has not been permitted to work overtime with other employees in his shop. He asked for back pay for the lost overtime. The record contains medical documentation from Complainant. This includes a note discharging him from physical therapy on May 25, 2011, after six visits starting on May 3, 2011. The note, signed by a physical therapist and physician indicates that Complainant reported he had no pain and did not think he would have any problem going back to work and lifting 35 pounds. They found Complainant's strength to be normal, and wrote that in the clinic he was able to lift and carry 35 pounds without any increase in pain and put a five pound box overhead without any problems. A medical note by Complainant's family physician dated June 23, 2011, represented that Complainant no longer had working restrictions, but had military limitations of 50 to 100 pounds. The doctor wrote Complainant could perform overhead activity, and wrote "lifting items weighing up to 35 lbs without assistance... and over 35 lbs with assistance..." In an accompanying note the doctor wrote Complainant had, among other things, chronic cervicalgia, pain in the joint involving the shoulder region, and pain in his limb. The record contains three OHC Dispensary Permits from September 2011. The first, dated September 6, 2011, indicates that Complainant would have temporary limitations related to his carpel tunnel for three more days and to continue with permanent restrictions. The second, dated September 8, 2011, indicates that Complainant could return to regular duty without limitations.2 The third, dated September 19, 2011, indicates that Complainant's permanent limitations would continue until he was released by the military.
In response to Complainant's notice of breach the Agency submitted a packet with information by the EEO Complaints Manager, a Human Resources Specialist, and an Agency representative. Referring to Notification of Personnel Actions, the Agency EEO Complaints Manager argued that Complainant was not reassigned out of the Work Center.3 He argued that while Complainant contended he submitted medical documentation two times releasing him to full duty, under the settlement agreement the Agency was not obligated to provide him with overtime, rather it was simply required to allow him to remain in the Work Center, and this was done. The Human Resources Specialist wrote that in response to Complainant giving him medical documentation on October 12, 2011, he told him that he was not a qualified medical provider and was unable to determine if it was sufficient to return to full duty, and Complainant said he was currently under review by the military review board to determine his ability to perform his military duties. The Agency representative added that medical documentation does not show Complainant overcame his specific limitations that would allow him to go back to his old full time work as an Electrician Aircraft Mechanic. Among other things the Agency representative pointed to the September 2011 Dispensary Permits which indicate Complainant's permanent restrictions continued.
In its FAD the Agency recounted Complainant's notice of breach and the Agency activities' response. The Agency found that term 1 of the settlement agreement was void for vagueness, and advised Complainant to contact an EEO counselor if he believed he was being discriminated against based on disability to initiate a new EEO complaint. It found that the settlement agreement was vague because it does not identify Complainant's "limitations," does not define "proper medical documentation," does not identify who has the authority to determine if the medical documentation is "proper," and does not indicate what is believed to occur in the event Complainant provides "proper medical documentation." The Agency concluded, however, that the settlement agreement was still valid because it contained valuable consideration, i.e., rescinding the five day suspension.
On appeal Complainant argues that on June 23, 2011, his family physician updated his physical restrictions to allow pushing/pulling/lifting up to 35 pounds, and removed the overhead lifting restriction. He argues that the Agency's failure to return him to full duty was reprisal discrimination, and he has lost overtime wages and promotions. Complainant argues that OHC refused to accept the medical documentation from his civilian doctor, insisting he submit documents from his military service coordinator. Complainant writes that after the settlement agreement he was placed on light duty status and not permitted to work overtime within his limitations. Complainant writes that S1 counseled him for not performing his job functions, and he is continuing to work on his medical situation with the intent to return to full duty. He writes that he wants compensation for overtime he should have worked under his current restrictions. Complainant submits military medical documentation dated February 11, 2012, which based on his medical documentation by his family physician dated June 23, 2011, modified his restrictions to push/pull/lift up to 35 pounds and removing the overhead lifting restriction. The military documentation, nevertheless, still contained restrictions, i.e., could not wear a helmet or body armor at least 12 hours a day and found Complainant did not meet retention standards. Complainant writes he was returned to work without limitations per an OHC Dispensary Permit dated February 14, 2012. He also submits copies of a Notice of Proposed Suspension from April 2012 and related suspension from May 2012. The prior five day suspension, which was rescinded, was not cited in this new discipline.
In opposition to the appeal the Agency submits a copy of the February 14, 2012 Dispensary Permit to which Complainant referred, which returns him to regular duty without limitations. The Agency argues that there is no promise in the settlement agreement regarding overtime. It argues that as soon as Complainant provided medical documentation from the Army (military), his status was immediately changed to having no medical restrictions. The Agency argues that it complied with the settlement agreement requirements regarding being in the appropriate Work Center with the same designation and grade.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 promised in the settlement agreement to allow Complainant to remain in his current work Directorate, Division and Branch, with his current supervisor, and with his current limitations in his OHC file. Complainant does not contend he was reassigned, that his supervisor changed, or that he was asked to work outside the limitations in his OHC file. The record supports the Agency's contention that Complainant was not moved. Under the settlement agreement the Agency also promised the above would occur until Complainant provided proper medical documentation showing the "above referenced specific limitation" no longer existed. Complainant suggests that he submitted to OHC medical documentation dated June 23, 2011, by his family physician fully releasing him, and argues OHC refused to fully release him until he submitted military documentation in February 2012. Complainant argues that as a result he lost overtime and promotions.
While the settlement agreement suggested that something would occur when Complainant submitted medical documentation showing the current OHC limitations no longer existed, it did not indicate what would occur. There is no promise in the settlement agreement to provide Complainant overtime or promotions. Further, on appeal Complainant suggests he still has medical limitations which restrict his performance, i.e., he wrote he continues to work on his medical situation with the intent to return to full duty. Complainant has not shown that the Agency breached the settlement agreement. If Complainant wishes to pursue his claims of discrimination, he should contact an EEO counselor.
CONCLUSION
The FAD is AFFIRMED because Complainant did not show that the Agency breached the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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 3, 2012
__________________
Date
1 While the proposed suspension recounted Complainant submitting the October 1, 2008, medical documentation to OHC, the language therein indicated it was for Complainant's alleged behavior which occurred after this, i.e., creating a disturbance and defiance of authority. According to the counselor's report, however, S1 stated Complainant's delay in making known to management that he had a doctor's statement releasing him to full duty in October 2008 was one reason he proposed the five day suspension.
2 It is not clear if this only referred to the temporary limitations arising from the carpel tunnel.
3 A Notification of Personnel Action indicated that on September 25, 2011, there was realignment. The Blackhawk Avionic/Electrician Branch, 524D0 which Complainant was in changed to Blackhawk Avionic/Electrician Section, P41B10. The EEO Complaints Manager explained that the Depot had a reorganization which resulted in Work Center renumbering. Work Center refers to numbers 524D0 and P41B10.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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