01987071
03-15-2000
Charles Watson, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Charles Watson v. Department of Agriculture
01987071
March 15, 2000
Charles Watson, )
Complainant, )
)
v. )
) Appeal No. 01987071
Daniel R. Glickman, ) Agency No. 953084
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
On September 25, 1998, complainant filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated August 14,
1998, finding that it was in compliance with the terms of the February
28, 1996 settlement agreement into which the parties entered.<1>
See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999) (to be codified at 29
C.F.R. ��1614.402, .504(b)); EEOC Order No. 960, as amended.
Complainant and the agency entered into a settlement agreement in
resolution of Complaint No. 953084. The settlement agreement indicated
that complainant agreed to withdraw his formal EEO complaint and not file
any new complaint about the issues included in the settlement agreement.
In addition, complainant would accept reassignment to JFK International
Airport and work with the designated Point of Contact (POC), based upon
several provisions, including:
Reassign [complainant] to the JFK International Airport. The
reassignment will take place within thirty days of receipt of updated
medical information regarding [complainant]'s physical condition.
Designate a supervisor for [complainant] who will be responsible
for all typical supervisory functions including implementation of any
modification of duties specified by [complainant]'s medical evaluations
for the duration specified by his doctors.
Designate a point of contact (POC) that will coordinate all requests for
information regarding [complainant]'s need for accommodation. The POC
will act as a liaison between [complainant] and his supervisor from the
date of signature of this agreement to final prognosis and assessment
of [complainant]'s request for accommodation, not to exceed one year
from date of signature of this agreement. The POC may be used to assist
[complainant] and his supervisor in discussions regarding his position
duties/assignments as they relate to accommodations. This person will
coordinate with [complainant]'s supervisor and relate all necessary
information and/or request for information with [complainant], and
vice versa....
Adhere to the medical physician's instructions regarding [complainant]'s
ability to physically perform his duties.
Provide [complainant] reasonable accommodation, if needed based on medical
documentation received from his physician provided such accommodation does
not pose undue hardship for the APHIS. Use the physician's instructions
to determine the duties [complainant] will perform during the period
of accommodation.
Consider [complainant] for any and all overtime assignments and
temporary tours of duty, provided they are within the limitations
established by his medical documentation.
Grant a reasonable amount of administrative leave, normally not more
than 4 hours per request, for all agency requested medical examinations
in relation to [complainant]'s request for accommodation.
By letter to the agency dated July 16, 1996, complainant alleged that
the agency breached the settlement agreement, and requested that his
complaint be reinstated for further processing. Complainant alleged that
the "terms of the Agreement have not and are not being carried out...."
In its August 14, 1998 FAD, the agency concluded that the agency had
substantially complied with the terms of the settlement agreement.
The FAD noted that complainant failed to specifically state which term
or terms of the agreement had been violated. Therefore, the agency
addressed each term of the settlement agreement, finding that the agency
had complied with all of them.
On appeal, complainant presents the details that were lacking in his
original allegation of breach. Specifically, complainant contends
that paragraph (1) of the agreement was violated when he submitted
his medical reports on March 21, 1996 but was not transferred until
June 10, 1996; and that although a supervisor was appointed, he did not
implement any modified duties. Complainant alleged breach of paragraph
(2), when the designated POC purportedly failed to carry out his duties.
Complainant contends that he was constantly assigned a work detail that
involved lifting, bending, standing, and walking, in breach of paragraph
(3); and that the agency did not provide complainant with reasonable
accommodation and failed to consider him for any and all overtime
and temporary tours of duty, in violation of paragraphs (4) and (7)
respectively. Complainant also argues that he was not provided with a
reasonable amount of administrative leave to agency requested medical
evaluations, in accordance with paragraph (10).
EEOC Regulation 65 Fed. Reg. 37,644, 37,660 (to be codified at 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 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, complainant contends that paragraph (1) of the
settlement agreement was breached when his reassignment occurred beyond
thirty days after submission of his medical documents. A review of
the record reveals that, in a letter dated May 31, 1996, complainant
was informed that the effective date of his reassignment was June 10,
1996. The letter also indicated that during a May 16, 1996 telephone
conversation, in an effort to secure reasonable accommodation, the agency
asked complainant to identify the type of work he could perform subject
to the medical documentation submitted in March 1996. According to the
agency, complainant agreed to provide the additional documentation by May
24, 1996, but no such information was provided. In response, the agency
decided to implement the transfer and any reasonable accommodation, based
on the March 1996 documentation. Therefore, the Commission determines
that agency did not breach paragraph (1) of the settlement agreement.
Further, because complainant was reassigned to JFK on June 10, 1996 we
find that any breach that may have occurred was cured.
Complainant also alleges that paragraph (2) was breached when the
appointed POC failed to perform his duties. In the FAD, the agency stated
that a POC was appointed and has served since August 1996. The agency
has submitted no evidence to support its contention. Therefore, we must
REMAND the complaint for a supplemental investigation on this issue.
With respect to the alleged breach of paragraphs (3) and (4), the FAD
stated that the agency followed the medical physician's instructions
and that complainant was reasonably accommodated. Again, the Commission
finds that the agency has failed to support their denial of breach with
evidence. The complaint is REMANDED for a supplemental investigation
on these issues.
The agency's stated compliance with paragraph (7) of the agreement,
requiring that complainant be considered for any and all overtime and
temporary tours of duty, is also unsupported by evidence. A supplemental
investigation on the matter will be conducted on REMAND as we are unable
to determine whether the agreement has been breach, based on the current
record.
Complainant contends that, in violation of paragraph (10), the agency
failed to provide him with a reasonable amount of administrative leave.
The record reveals that complainant's request, dated March 20, 1996,
was approved. Additional requests, dated March 19, 1996, April 3,
1996 and April 10, 1996 were not approved, as they were not for
"agency requested medical examinations." We find that the agency has
not breached paragraph (10), as the plain and unambiguous language in the
agreement only requires administrative time for "agency requested medical
examinations in relation to [complainant]'s request for accommodation."
In summary, the agency's decision that it did not breach paragraph
(1) and (10) of the settlement agreement is AFFIRMED; the agency's
decision that it did not breach paragraphs (2), (3), (4) and (7) is
VACATED and paragraphs (2), (3), (4) and (7) are hereby REMANDED for
further processing in accordance with this decision and the applicable
regulations.
ORDER
The agency is ORDERED to conduct an investigation to establish and
provide the following:
1. The agency shall supplement the record with documentation showing
whether the agency has complied with paragraph (2) of the settlement
agreement, including, but not limited to, affidavits from the POC and
complainant's supervisor.
2. The agency shall supplement the record with documentation showing
whether the agency has complied with paragraphs (3) and (4) of the
settlement agreement.
3.The agency shall supplement the record with documentation showing
whether the agency has complied with paragraph (7) of the settlement
agreement, including, but not limited to, records of overtime and tours
actually worked by complainant.
Thereafter, the agency shall issue a new final decision. 29
C.F.R. �1614.110. The supplemental investigation and issuance of the
final decision must be completed within forty-five (45) calendar days
of the date this decision becomes final. A copy of the final decision
must be submitted to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
March 15, 2000
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________ ________________________________
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.