Juan Vega, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 2, 2000
01a02927 (E.E.O.C. Aug. 2, 2000)

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.