01a52447_r
12-19-2005
Janice Burgos, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Janice Burgos v. Department of Homeland Security
01A52447
December 19, 2005
.
Janice Burgos,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A52447
Agency No. 04-049C/04-4065
DECISION
Complainant appeals to the Commission from the agency's May 27, 2005
decision finding that it was not in breach of a settlement agreement.
On March 3, 2004, the parties resolved complainant's complaints by
entering into a settlement agreement which provided, in pertinent part,
that complainant would receive the following:
. . .
2(a) Grant complainant a temporary reassignment to Port Everglades
pending the results of a Fitness for Duty Evaluation by the Public
Health Service.
2(b) Prior to reaching the final result on the Fitness for Duty
evaluation, the Public Health Service will consult with the complainant's
physician for input.
2(c) Agency agrees to temporarily place complainant on an 8 a.m. to 4
p.m. shift from Monday to Friday in Passenger Processing pending the
final results of a fitness for Duty Evaluation by the Public Health
Service after consultation with Complainant's treating physician(s).
The Fitness for Duty Exam will be evaluated based on Legacy Customs
Inspector position description, i.e. the position description she was
hired under.
2(d) Agency agrees to honor previously approved leave requested by
Complainant for FY 04.
2(e) Agency agrees to submit necessary medical documents to the Public
Health Physician. After consultation with Complainant's treating
physician(s), a final determination as to whether reassignment will
be temporary or permanent will be based on medical documentation from
Public Health Service. The Agency will inform complainant of Agency
final decision within 60 days from receipt of final medical report from
Public Health Service.
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).
Complainant, by letter dated December 7, 2004, alleged that the agency
breached provisions 2(b), 2(c), and 2(e) of the settlement agreement.
Specifically, complainant alleges that the agency breached the settlement
agreement when the Public Health Physician failed to consult her
physician. Complainant further argues that the agency did not use the job
description for which she was hired when being evaluated for her fitness
for duty, as required by provision 2(c) of the settlement agreement.
The agency found that complainant underwent part of the evaluation on
June 2 and 3, 2004. The agency found that by letter dated June 16, 2004,
the Public Health Service requested current medical and clinical findings
from complainant's physician, who never responded. The agency stated that
on August 17, 2004, complainant underwent the remainder of the evaluation.
The agency stated that on January 2, 2005, complainant was informed that
she was no longer medically fit for duty and her temporary reassignment
was made permanent.
The agency argues that it fulfilled its obligation to consult when
it sent the June 16, 2004 letter to complainant's personal physician.
Complainant argues that her physician never received the letter and was
thus never consulted.
With regard to provision 2(c) of the settlement agreement, complainant
argues that the agency was required to evaluate her fitness for
duty based on the �Legacy Customs Inspector� position, the position
description she was hired under. The agency argues that complainant
was tested under the Customs Inspector, GS-1890-05/11 job description.
Complainant argues that such a position, Customs Inspector, did not exist
when she was hired. The agency argues that there is no clear record
as to whether the �Legacy Customs Inspector� and �Custom Inspector,
GS-1890-05/11" is the same position. However, the agency argues that
complainant has the burden of proving that they are not the same in
order to show breach of the settlement agreement.
We find that the agency has breached the settlement agreement.
The settlement agreement in provisions 2(b), 2(c), and 2(e), requires
the agency to consult with complainant's physician. The agency has
admitted that the only effort to consult with complainant's doctor was via
letter. Complainant argues that her physician never received the letter.
The record is devoid of a copy of the purported letter. Further, there
is no indication that complainant's doctor ever received the letter.
Thus, we find the agency has breached the settlement agreement with
regard to its obligation to consult with complainant's physician.
Because breach has been found in this respect, and because we find that
reinstatement of the underlying matter is the most appropriate remedy,
we will not address complainant's other allegations of breach with
regard to this settlement agreement. Thus, the agency must process the
underlying matter from the point where processing ceased.
The agency's decision finding no breach of the settlement agreement is
REVERSED and we REMAND the matter to the agency for further processing.
ORDER
The agency is ordered to resume the processing of the settled EEO
claims from the point processing ceased pursuant to 29 C.F.R. Part 1614.
Within 30 calendar days of the date this decision become final, the agency
must notify complainant of reinstatement of the settled EEO claims.
The agency must provide the Compliance Officer with a copy of this letter,
as referenced herein.
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 19, 2005
__________________
Date