0120071833
01-22-2009
Dennis S. Freeman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dennis S. Freeman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071833
Agency No. 1E-501-0003-05
DECISION
Complainant filed a timely appeal with this Commission from a letter
of determination by the agency dated February 2, 2007, finding that it
was in compliance with the terms of the December 9, 2004 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.
The December 9, 2004 settlement agreement provided, in pertinent part,
that:
4. on January 24th the parties will meet in person and by conference
call at the Hawkeye District office to select the neurologist for the
3rd opinion. The parties will flip a coin to determine who strikes the
first name. The last remaining name will conduct a review, examination
and assessment of the employee's condition.
5. in the event, the neurologist determines that [Complainant] can
return to a truck driving positions, he will be allowed to bid on the
first subsequent vacant position. He will not be allowed to bid during
the annual bid process.1
By letter to the agency dated January 4, 2007, complainant alleged that
the agency was in breach of provisions 4 and 5 the settlement agreement.
Specifically, complainant alleged that management failed to comply with
portion of provision 4 concerning "the last remaining name will conduct
a review, examination and assessment of the employee's condition."
Complainant alleged that he was denied a Department of Transportation
(DOT) medical card by an identified agency contract physician (P1), and
was not allowed to receive the bid for which he was the successful bidder.
Furthermore, complainant alleged that P1 "is not the neurologist that
was stated in the Item #4 and Item #5 of the EEO settlement."
In its February 2, 2007 letter of determination, the agency found no
breach of provisions 4 and 5. According to the agency, the Manager
Transportation Networks (M1), who was involved in the settlement
negotiations, stated that the settlement agreement was honored.
M1 stated that complainant was reviewed, examined and assessed by an
identified neurologist to determine whether complainant could return to
a truck driving positions in accordance with provision 4 of the instant
agreement. M1 stated that complainant was allowed to bid on the first
subsequent vacant position in accordance provision 5 of the agreement,
and was the successful bidder for Motor Vehicle Operator of Route #202.
M1 stated, however, the agency policy states that before being awarded a
bid, the successful bidder would then be sent for a physical to obtain
a Commercial Driver's license. M1 stated that on December 20, 2006,
complainant left his physical appointment making derogatory comments about
the experience and the physician was unable to complete the physical
part of the examination. M1 stated that, as a result, a DOT medical
card could not be issued to complainant.
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, the Commission determines that the record in this
case contains insufficient evidence for us to determine whether a breach
of provisions 4 and 5 of the instant agreement has occurred. We note, for
example, that the agency's final decision finding no breach is predicated
upon statements by M1. However, the record contains no affidavits from
M1 indicating that he fulfilled the obligations under the terms of the
settlement agreement. Given this lack of evidence, we are unable to
ascertain whether the agency complied with the settlement agreement.
Accordingly, the agency's finding of no breach of provisions 4 and 5
of the settlement agreement is VACATED. The matter is REMANDED to the
agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing that
it has complied with provisions 4 and 5 of the settlement agreement.
The supplementation of the record shall include documentation, such
as affidavits from M1, indicating that the agency was in compliance
with the settlement agreement. Within thirty (30) calendar days of the
date this decision becomes final, the agency shall issue a new decision
concerning whether it breached provisions 4 and 5 of the December 9,
2004 settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M1208)
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 (R0408)
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 (Z1008)
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
January 22, 2009
__________________
Date
1 The settlement agreement also provides that the agency to assure a third
opinion of a qualified neurologist be conducted and selected pursuant
to Article 39, Q & A, item 46 of the union manual; that complainant
and union official submit a list of 3 neurologists outside of the Des
Moines metro area to the Labor Relations Specialist; and the Associate
Area Medical Director and the Labor Relations Specialist submit a list of
two neurologists outside the Des Moines metro area by mail to complainant
and the union official. Those provisions are not at issue in the instant
appeal.
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0120071833
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071833