0120083886
02-04-2009
Jaime Garcia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jaime Garcia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083886
Agency No. 1F-941-0008-08
DECISION
On September 8, 2008, complainant filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) claiming that
the agency was in breach of a January 8, 2008, settlement agreement
into which the parties entered. Complainant contacted an EEO counselor
dated April 23, 2008, making allegations which amounted to a notice of
breach,1and on July 10, 2008, provided the agency at the proper location
an explicit notice of breach. After not receiving a ruling from the
agency on his breach allegation, complainant filed a timely appeal.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405. After complainant filed the appeal, the agency made a final
agency decision (FAD) dated October 9, 2008, finding that it complied
with the settlement agreement.
Complainant was employed as a mail processing clerk at the agency's
San Francisco Processing and Distribution Center in San Francisco,
California. He formerly performed a set of duties designed to meet his
medical limitations. He was terminated effective October 19, 2007,
for physical inability to perform his position.
Under the parties January 8, 2008, settlement agreement, the agency agreed
to rescind the removal. Complainant agreed to provide his current medical
restrictions with a work release date within 30 days. The agency agreed
to make a job offer consistent with the medical restrictions within 30
days of receiving them. Complainant agreed to respond to the job offer
within 30 days.
On February 1, 2008, complainant provided the agency a letter by his
physician dated January 22, 2008. It restricted complainant to only
working on tour II (no night shift work), from working in sustained noise,
and from the workroom floor. It explained that complainant had asthma,
and exposure to a dusty environment from paper and machines exacerbated
this, and that he had anxiety. The physician's letter also limited
complainant from lifting more than 10 pounds, repetitive arm use, and from
pushing and pulling heavy objects due to lateral epicondylitis and wrist
tendonitis. A review of medical documentation complainant provides on
appeal, as well as documentation in one of his companion cases,2 reveals
these restrictions were similar in nature to his past restrictions.
On June 12, 2008, the agency offered complainant the modified assignment
(limited duty) job of distribution clerk. The offer indicated that it
met the limitation of complainant not working under the influence of his
former supervisor in the OPS unit.3 The duties of the job were opening and
dumping pouches and sacks, distributing incoming mail by delivery point,
distributing outgoing mail for dispatch, and maintaining mail records,
face and cancel mail, and tying mail, inserts, and facing slips.
Complainant rejected the job offer by letter dated June 18, 2008.
He explained that the offer did not meet his medical limitations.
Thereafter, on September 26, 2008, the agency offered complainant the
modified assignment (limited duty) of distribution clerk. It indicated
that the job required lifting less than 10 pounds. The listed duties
were separating bundles of carrier routed flats, scanning dispatches and
arriving containers in any given unit, creating and preparing placards
for dispatches in any given unit, and performing quality checks of
mail trays and containers. According to an e-mail by an agency human
resources specialist, complainant signed the job offer and reported to
work on September 28, 2008, but left shortly after reporting, complaining
it was too noisy. According to the e-mail, an emergency alarm was being
tested in complainant's work area.
Complainant's supporting appeal package argues that June 12, 2008 offer
did not meet his medical limitations. He submits an affidavit that it
would require him to perform duties on the workroom floor near machines
running all the time creating dust; sorting mail which requires repetitive
motion; opening and dumping pouches and sacks requiring repetitive
motion and lifting more than 10 pounds; and lifting, pulling and pushing
containers far beyond his medical restrictions. He asks that the
agency be ordered to offer him a position within his medical limitations.
Complainant copied the supporting appeal package to the address provided
for doing so in the FAD, an address in Daley City, California. The agency
does not respond to complainant's contentions on appeal.
The October 9, 2008, FAD indicates that after complainant rejected the
June 12, 2008 job offer, there was much discussion among operations
managers, the agency injury compensation office, and complainant's
Department of Labor, Office of Workers' Compensation Programs (OWCP)
vocational rehabilitation counselor to ensure the next job offer would
not violate complainant's medical restrictions. The FAD references the
September 26, 2008, job offer, and that complainant reported to work
and left shortly thereafter complaining of noise. Based on its efforts
to find complainant work within his medical limitations, the FAD finds
that the agency complied with the settlement agreement.
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 settlement agreement required the agency to offer
complainant a position consistent with his medical restrictions within
30 calendar days of receiving medical documentation of the limitations
from complainant. Complainant provided the medical documentation to
the agency on February 1, 2008, but the agency did not make a job offer
until June 12, 2008. Moreover, complainant persuasively states the job
offer was not anywhere near consistent with the medical restrictions he
provided on February 1, 2008, and the agency does not contest this.
A March 2008 document by an OWCP vocational rehabilitation counselor
states she was advised then by an agency supervisor that the only
available work was on the workroom floor, but this was outside
complainant's non-industrial medical restrictions. A subsequent e-mail
by an agency human resources specialist suggested that the agency worked
with the OWCP vocational rehabilitation counselor in making the June 12,
2008 job offer.
Given the above events, it appears likely the agency got sidetracked into
the injury compensation process, as its June 12, 2008, job offer violated
the settlement agreement both in terms of substantial delay and not being
consistent with complainant's medical restrictions he provided the agency
on February 1, 2008. The agency breached the settlement agreement.
The agency did not provide complainant another job offer until September
26, 2008. Complainant's appeal, which was initially filed prior to
this job offer, does not address this matter. There is insufficient
information in the record to make a determination on whether after
breaching the settlement agreement, the agency came into compliance with
the second job offer. The agency shall comply with the orders below.
ORDER
The agency is ordered to take the following remedial action:
1. To the extent it has not already done so, the agency shall comply
with the January 8, 2008, settlement agreement by offering complainant
a position consistent with the terms therein within 30 calendar days
after it receives this decision.
2. The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, if any, as a result
of its breach pursuant to 29 C.F.R. � 1614.501,
no later than sixty (60) calendar days after the date this decision
becomes final. Back pay, if any, would commence on March 2, 2008, 30
days after complainant provided to the agency medical documentation of
his restrictions pursuant to the settlement agreement. The complainant
shall cooperate in the agency's efforts to compute the amount of back pay
and benefits due, and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented,
and be copied to complainant and his attorney.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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
February 4, 2009
__________________
Date
1 Thereafter, complainant filed a complaint, which the agency dismissed on
the grounds that it amounted to a notice of breach. In Garcia v. United
States Postal Service, EEOC Appeal No. 0120082893 (September 9, 2008),
the Commission affirmed the dismissal, and ordered the agency to process
the matter as a breach of settlement agreement claim under 29 C.F.R.
� 1614.504.
2 We are referring to Garcia v. United States Postal Service, EEOC Appeal
No. 0720080011 (December 18, 2008). In Garcia, the Commission affirmed
a finding by an EEOC Administrative Judge that the agency discriminated
against complainant based on reprisal for prior EEO activity when
in May 2005, it reassigned him from his light duty assignment in the
Operational Plant Support (OPS) unit and assigned him to the workroom
floor. Complainant stopped reporting to work once he was reassigned.
The Commission awarded complainant back pay commencing May 28, 2007.
3 This is the supervisor who retaliated against complainant by reassigning
him out of the OPS unit. On January 9, 2008, complainant's psychologist
restricted complainant, in part, from being supervised or coming under
the influence of the above supervisor.
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0120083886
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120083886