01a54711
02-28-2006
Ashish K. Varma, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ashish K. Varma v. United States Postal Service
01A54711
February 28, 2006
.
Ashish K. Varma,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54711
Agency No. 4E-980-0032-04
DECISION
Complainant filed a timely appeal with this Commission from a final
determination by the agency dated June 16, 2005, finding that it was
in compliance with the terms of the March 23, 2004 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) The [agency] will endeavor to allow [complainant] a non-management
person with him when [complainant] is addressed by a management official
in closed quarters.
(2) The [agency] will work to transfer [complainant] into a position
which accommodates his current medical restrictions as approved by [the
Office of Workers Compensation Programs] OWCP and stated in the job
offer of June 26, 2002, and approved by his doctor on 8-20-03, updated
as of 11-13-03. This transfer will be to the [Information Systems,
(IS)] Department or another station or department. This transfer must
be accepted by [complainant]. [S1] will be in contact with [complainant]
by mail on a weekly basis. Both parties agree to expedite this process
in as timely a manner as possible.
(3) If an acceptable transfer has not been accomplished by April 22nd,
the parties agree to meet at 10:00 am on that date to make every attempt
to resolve the issue.
(4) [The agency] will pay [complainant's attorney A] $1,000 in legal fees.
These will be total attorney's fees. . . .
If after the meeting in #3 above the parties have not mutually agreed
to a position [complainant] can transfer into, then [complainant] will
have 7 days in writing from that date to revoke this entire settlement
agreement.
By letter to the agency dated May 7, 2004, complainant alleged that the
agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to tender any suitable offer of work in
that the positions offered did not comply with complainant's medical
restrictions. Complainant further alleged that the meeting called for
on April 22, 2004 did not occur as required.<1>
In its June 16, 2005 decision, the agency concluded that no breach of
the settlement agreement occurred. Specifically, the agency found that
complainant received two position offers, one at Westwood Station and
another at Skyway Station, both as a Distribution Clerk. The agency
further found that complainant returned to his former job offer at
Wallingford Station on July 5, 2004. Additionally, the agency found
that after speaking to complainant's new attorney, the agency had agreed
to pay complainant for 160 hours of back pay and that repayment of the
back pay had been initiated by the agency, together with payment to
complainant's former attorney of the $1,000 pursuant to the settlement
agreement and an additional sum of attorney's fees ($6,646.09) to be paid
to complainant's current attorney. The agency noted that complainant's
new attorney had returned to the agency an executed copy of the job
offer complainant had taken at Wallingford Station, and complainant had
accepted the 160 hours of back pay. Accordingly, the agency found that
it had fulfilled its obligations under the settlement agreement and that
no breach had occurred.
On appeal, complainant states that he agrees with the determination to
provide him with: 160 hours of back pay; attorney's fees of $7,646.09
($1,000 to a complainant's attorney A and $6,646.09 to complainant's
attorney on appeal); and �a formal offer of employment in his current
position with the Post Office.� Complainant said that his appeal is
limited to obtaining an assurance that the agency will continue to
provide him with a reasonable accommodation. Complainant argues:
Provided that the Post Office agree[s] to continue to provide Mr. Varma
with those reasonable accommodations that have been provided to him
over the last three years, set forth in writing, and which are required
under the ADA and Washington law, Mr. Varma agrees with the [agency's]
final determination.
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).
In the instant case, we concur with the agency that no breach of
the settlement agreement has occurred as alleged. We observe that
the parties appear to have agreed, subsequent to the execution of the
March 23, 2004 agreement, to additional consideration that complainant
has accepted. Furthermore, complainant has returned to his position at
Wallingford Station. Complainant does not allege that he is unable to
perform the duties of the position to which he returned or that he is
being denied a reasonable accommodation. We observe that the parties
do not dispute the agency's payment of the attorney's fees described
in the settlement agreement. Accordingly, we find that the agency has
substantially complied with the March 23, 2004 settlement agreement.
We note complainant's concern on appeal that complainant's current
job offer (from 2002) does not incorporate in writing the reasonable
accommodations that have been provided to him over the last three years.
Complainant requests that the agency set forth in writing the reasonable
accommodations to which he is entitled. The agency is not mandated to
provide any such document to complainant. Complainant is not claiming
that he is not being reasonably accommodated, but if he believes in the
future that he is not being reasonably accommodated then he may contact
an EEO Counselor pursuant to 29 C.F.R. � 1614.105(a) in order to file
a separate complaint of discrimination.
Accordingly, we AFFIRM the agency's determination that no breach of the
March 23, 2004 settlement agreement occurred.
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
February 28, 2006
__________________
Date
1The Commission observes that in spite of the settlement reached, the
agency, on May 20, 2004, issued complainant a notice of final interview
and right to file a complaint. Complainant filed a complaint, dated June
3, 2004, which was accepted for investigation by letter dated June 28,
2004. The agency later issued a final decision on the settled matter,
dated February 15, 2005. That decision was, upon discovery of the
settlement agreement, rescinded on April 8, 2005. Neither party argues
on appeal that the settlement agreement of March 23, 2004 is invalid, and
accordingly, we confine our decision herein to the issues surrounding the
terms of the settlement agreement and the agency's compliance therewith.