01a02927
08-02-2000
Juan Vega, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Juan Vega v. United States Postal Service
01A02927
08-02-00
.
Juan Vega,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02927
Agency Nos. 1F-94-1001-200
4F�94-0001-800
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency, dated February 29, 2000, finding that
it was in compliance with the terms of a November 3, 1999 settlement
agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to
as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b);
and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).
The settlement agreement provided, in pertinent part, that:
(1) A-1, a management official, would review complainant's medical
documentation;
(2) based on the review, a determination of complainant's limitations
would be made;
(3) a search for an appropriate modified assignment to address said
limitations would be made in two specified divisions;
(4) the educational achievements of complainant would be applauded;
(5) six months from the date of signing, A-1 would review options with
complainant; and
(6) A-1 would keep complainant's application in hand for any job
opportunity.
In a letter dated February 17, 2000, complainant alleged that the November
3, 1999 settlement agreement had been violated. Complainant seemed to
imply that management took too much time to offer him an appropriate
position. The agency, in its final decision, argued that there was no
breach of the settlement agreement. According to the agency, A-1 reviewed
complainant's medical documentation and, based on his limitations, made
a job offer to him as a reasonable accommodation on February 22, 2000.
Complainant was given until March 8, 2000, to respond to the offer.
The record indicates that complainant refused the agency's offer.
On appeal, complainant, through his attorney, argued that:
[t]here has been a violation by the [agency] of Sections 501 and 502
of the Federal Rehabilitation Act in that the employer has failed to
comply with the settlement agreement of 11/3/99. They have also failed
to accommodate [complainant] in a timely manner with suitable limited
job replacement, retraining or rehabilitation.
Settlement agreements are contracts between the complainant and the agency
to which ordinary rules of contract construction apply. 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 any resort to extrinsic
evidence of any nature. See Montgomery Elevator v. Building Engineering
Services, 730 F.2d 377 (5th Cir. 1984).
At the outset, we note that complainant did not maintain that the
agency violated provisions (4), (5), or (6) of the settlement agreement;
therefore, these matters will not be addressed in this decision. After a
careful review of the record, we find that there is no persuasive evidence
that the agency violated provisions (1), (2), and (3). The settlement
agreement did not provide a time frame in which the agency had to review
complainant's medical records, determine the extent of his limitations,
and conduct a search for an appropriate position. In such circumstances,
the Commission has held that performance of the contract is required
within a reasonable amount of time. See Gomez v. Department of the
Treasury, EEOC Request No. 05930921 (February 10, 1994). We do not find,
under the facts presented here, that the agency took an unreasonable
amount of time to carry out its obligations.
Neither complainant, nor his attorney, provided any specific
argument or evidence that would indicate how, in their opinion, the
position offered by the agency violated the terms of the settlement
agreement. Consequently, without such an explanation from complainant, we
are unable to find that there was a violation of the settlement agreement.
The agency's final decision is AFFIRMED.
On appeal, the agency indicated that complainant, after refusing to accept
its job offer, resigned. In light of his resignation, we find that a fair
reading of complainant's argument on appeal, that the agency violated
the Rehabilitation Act by failing to accommodate him in a timely manner,
raises the issue of constructive discharge. Complainant is advised that
if he wishes to pursue this claim, through the EEO process, he shall
initiate contact with an EEO counselor within 15 days after he receives
this decision. The Commission advises the agency that if complainant
seeks EEO counseling regarding the constructive discharge allegation
within the above 15 day period, the date complainant filed the appeal
statement, April 18, 2000, shall be deemed to be the date of initial
EEO contact, unless he previously contacted a counselor regarding this
matter, in which case the earlier date should serve as the EEO counselor
contact date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC
Request No. 05970201 (January 16, 1998).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
_08-02-00_________________
Date
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.