Stephen M. Rivera, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 10, 2003
01A21569_r (E.E.O.C. Dec. 10, 2003)

01A21569_r

12-10-2003

Stephen M. Rivera, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Stephen M. Rivera v. United States Postal Service

01A21569

December 10, 2003

.

Stephen M. Rivera,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A21569

Agency No. 1-H-328-0022-00

DECISION

Complainant filed a timely appeal with this Commission from an agency

final determination dated December 11, 2001, finding that it was in

compliance with the terms of a March 16, 2000 settlement agreement.

The Commission accepts the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. �

1614.504(b); and 29 C.F.R. � 1614.405.

The March 16, 2000 settlement agreement provided, in pertinent part, that:

(1) All �MDO's� on all tours, should have a list of all employees

(Career, Casual, TE) including pay locations and supervisors, who have

the capability and are willing to communicate with the hearing impaired

via sign language.

(2) An in-house interpreter should be provided for all Safety Talks,

Service Talks, Training, and any Special Instructions given, in reference

to Job/Employment related meetings, including, but not limited to,

Opting and Downsizing. Additionally, an in-house interpreter should be

provided for all Central Florida Satellite Broadcasts, as well as any

other Postal videos, until such time as a closed-captioning is provided.

(3) Supervisors are to speak slowly and carefully when giving training

instructions and will be augmented with written instructions.

(4) If the in-house interpreter is unable to fully communicate with

[complainant], the [agency] will provide a State �QA� or National

Certified �ASL� Interpreter.

By letter to the agency dated October 5, 2001, complainant asserted

that the agency failed to fully comply with any of the above referenced

provisions. Specifically, complainant identified the following ten

incidents concerning the agency's failure to provide a sign language

interpreter for complainant:

No interpreter was provided for complainant at Friday safety/service talk

meetings at complainant's pay location, precluding his participation;

On a daily basis, certain supervisors held work-related meetings,

but failed to provide complaint with an interpreter, precluding his

participation;

On July 9, 2001, the agency canceled required testing because an

interpreter could not be provided, and repeatedly ignored complainant on

this issue since August 31, 2000. Moreover, alll clerks at complainant's

pay location began qualifying for the new data conversion operator

positions, but complainant was discriminated against because the

agency failed to provide adequate preparation for testing procedures and

comprehension. An �ASL� interpreter was required to assist complainant's

understanding and performance, but the agency failed to provide one.

On July 6, 2001, in responding to a request from the union,

complainant's supervisor indicated that no scheduled arrangements to

have an interpreter for complainant had been made, thus excluding him

from required on the job activities.

On July 5, 2001, and thereafter, two management officials met with nine

clerks from complainant's pay location, to advise them that their bids

would be abolished on August 11, 2001. The clerks had an opportunity

for questions and answers, but complainant could not participate because

the agency failed to provide an interpreter.

On June 29, 2001, the agency failed to provide complainant with

an interpreter on a mandatory safety talk on the topic of anthrax,

rendering him an �outcast.�

On May 3, 2001, after a 2-week wait, the agency provided an interpreter

to give complainant an individual account on meetings held by a named

agency manager. However, complainant desires to feel included by being

able to participate in the meetings while they are taking place, and

his inability to do so promotes a feeling of isolation. Also, the

interpreter was only available for 45-minutes, so that complainant

was rushed through the session, which also included coverage of a

union matter.

On April 20, 2001, a named agency manager conducted a meeting,

but responded to complainant that no interpreter was available, and

that another meeting would be arranged for him the next week, thereby

excluding complainant and other hearing impaired employees from this

meeting. People with disabilities want to fit in with their peers,

and they do not want private meetings.

On February 2, 2001, a named supervisor conducted a mandatory Voice

of the Employee (VOE), but failed to provide complainant with an

interpreter.

On August 31, 2000, the agency failed to provide complainant with an

interpreter for testing on the 710 Clerical Exam and 714 typing Exam,

which are required to qualify for data conversion operator positions,

precluding complainant from acquiring this position.

In its December 11, 2001 final determination, the agency made reference to

its August 8, 2001 written response to an August 7, 2000 meeting between

complainant and management concerning its failure to provide him with

an interpreter as a reasonable accommodation. Based thereon, the agency

generally found that although an interpreter was not always provided to

complainant at the time of a presentation, complainant was not harmed

or denied any benefits because of short delays. More specifically, the

agency addressed the incidents in complainant's breach claim as follows:

Regarding incidents 1, 2, 5, 6, and 7, the agency determined that

complainant agreed that in lieu of an interpreter, the agency could

provide a written version of the talks before-hand, as well as a flip

chart for his questions. Therefore, in light of this arrangement,

the agency found no breach of the settlement agreement.

Regarding incidents 3 and 9, the agency determined that on August 7,

2000, a management official, with the assistance of an interpreter,

reviewed issues complainant had with the computer used to train on the

Tray Management System, and that complainant had an interpreter when he

took a written examination in September 2000 and again on July 25, 2001.

Therefore, the agency found no breach of the settlement agreement.

Regarding incident 4, the agency found that on July 17, 2001, complainant

attended a meeting to discuss the issue of �his abolishment� with the

assistance of a certified interpreter; and, regarding incident 8, found

that in March 2001 complainant received VOE training with the assistance

of a certified interpreter. Therefore, the agency found that neither

incident 4 or 8 constituted a breach of the settlement agreement.

On appeal, complainant denies that he agreed to an alternative

arrangement, and asserts that the only agreement is the one reflected

in the settlement agreement. Moreover, complainant avers that

he has a difficult time with written language, so that providing

a written copy of a presentation is not especially helpful to him.

Furthermore, complainant contends that the agency's failure to provide an

interpreter while a presentation is on-going denies him the opportunity

to participate, not only because he cannot ask his own questions,

but also because he cannot know the questions being asked by others.

Additionally, complainant contends that the agency's response to

incident 3 does not address the same issue, which concerns his lost

opportunity for a new bid position due to the impending abolishment

of his flat-sorter bid, and avers that at no time was a certified

interpreter provided to explain the abolishment of the bid position.

As to incident 8, complainant argues that this training was mandatory,

such that the agency's failure to provide an interpreter breached the

settlement agreement. Finally, as to incident 9, complainant contends

that he failed several in-service exams which would have qualified him

for a data conversion position after the abolishment of his bid position,

due to the lack of an interpreter, noting that the Tray Management System

had nothing to do with this testing.

Analysis and Findings

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 Commission notes that the agency admits that it routinely fails to

provide complainant with the services of a sign language interpreter at

the time of a presentation, as contemplated by the settlement agreement,

but instead provides an alternative service (i.e., flip-chart and written

notes), or the services of a sign language interpreter after-the-fact.

Complainant maintains that these services fail to comply with the

settlement agreement because they do not permit him to meaningfully

participate in presentations/meetings/discussions, as would the services

specified in the settlement agreement.

The Commission determines that a reasonable interpretation of

the pertinent provisions of the settlement agreement reflects an

agency obligation to provide the specified services at the time

of the presentation, and that there is no provision allowing for an

alternative service. Furthermore, we find that the essential benefit of

the settlement agreement to complainant is that he be able to participate

in all work-related presentations, as well as training, and that the

agency's alternative services do not confer this benefit to complainant.

Moreover, we find that the agency apparently intends to continue to

provide only the alternative services which it is currently providing to

complainant. Therefore, we find that the agency has fundamentally breached

the settlement agreement, and does not intend to cure its non-compliance.

Accordingly, for the reasons set forth above, we find that the appropriate

remedy in this case is reinstatement of complainant's underlying complaint

at the point at which processing ceased. See 29 C.F.R. � 1614.504(c).

In conclusion, we REVERSE the agency's December 11, 2001 final decision

finding of compliance with the settlement agreement, and as a remedy,

we REMAND the case to the agency to reinstate the underlying complaint,

as more fully set forth in the ORDER below.

ORDER

The agency is ORDERED to take the following action:

Within thirty (30) calendar days of the date that this decision becomes

final, the agency is ordered to reinstate Complaint No. 1-H-328-0022-00

at the point at which processing ceased. The agency is ordered provide

complainant with written notice of this action.

A copy of all pertinent documentation verifying compliance with the

above order must be sent to the Compliance Officer as referenced below.

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

December 10, 2003

__________________

Date