01992320_r
12-22-1999
LaKennedy Moore, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
LaKennedy Moore, )
Complainant, )
)
v. ) Appeal No. 01992320
) Agency No. 1D-234-0059-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely appealed the agency's decision denying his request
that a settlement agreement be enforced. (see 64 Fed Reg. 37,644, 37,659
(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),
and (see 64 Fed Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
cited as 29 C.F.R. �1614.504(b)), EEOC Order No. 960, as amended.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Complainant filed a formal EEO complaint wherein he alleged that he was
discriminated against on the bases of his mental disability (delusional
disorder) when he was denied employment in the position of Mailhandler,
PS-4, on July 8, 1997. The complaint was accepted for investigation.
Subsequent to the investigation, complainant requested a hearing before an
EEOC Administrative Judge. The complaint was resolved by a settlement
agreement entered into on March 30, 1998. The agreement stated in
relevant part:
The Complainant will be reinstated to the hiring registers for these
positions under the Battery 470 to include Mail Handler. If Complainant
is not reached on a Mail Handler register within the next 30-45 days, he
will be placed in the Mail Handler position for which he was not hired.
Complainant will be required to meet all Pre-hire requirements to include,
personal suitability, prehire physical, Mail Handler Strength Test,
and any driving requirements.
The record reveals that complainant was scheduled for a psychiatric
pre-hire physical on July 2, 1998. The examining psychiatrist provided
the agency with an evaluation report. In the report, the psychiatrist
states in part that it would be reasonable to consider complainant for
employment, however, he may be at a greater risk than some others for
decompensation under significant stress. The psychiatrist further states
that it may be prudent to place complainant in a setting where the work
pressure is not inordinately high, or possibly on a route where he may
be involved in mail delivery on a more solitary basis. The psychiatrist
concludes by stating that he feels complainant is capable of returning
to gainful employment at this time.
By letter dated July 17, 1998, the agency denied complainant's request
for the position of Part Time Flexible Mail Handler in the Norfolk,
Virginia Processing and Distribution Center. The agency noted that
according to the psychiatrist's recommendation, it may be prudent to place
complainant in a setting where the work pressure is not inordinately
high, or possibly on a route where he may be involved in mail delivery
on a more solitary basis. The agency stated that the position of Mail
Handler has stress factors and time commitments and that it requires
working closely with others. According to the agency, there was nothing
that it could do to accommodate these restrictions.
By letter dated October 28, 1998, complainant submitted a letter to the
Senior EEO Complaints Processing Specialist wherein he claimed a breach
of the settlement agreement. Complainant stated that the examining
psychiatrist told him that his recommendation was that he return to
gainful employment. According to complainant, a Labor Relations official
informed him in October 1998, that the agency wanted him to see one more
physician, and a decision would be made with regard to hiring him based
on this physician's determination.
Complainant informed the EEO Office that he was scheduled to take a
fitness-for-duty examination for the position of Mail Handler on October
28, 1998. According to complainant, this was the third time that he
was scheduled to see a psychiatrist. Complainant claimed that this
constituted a breach of the settlement agreement because it was agreed
that he would receive a Mail Handler position. Complainant requested
that he be placed in a Mail Handler position with back pay from May 1998.
Complainant also requested compensation in the amount of $15,000.
In its final decision dated January 11, 1999, the agency determined that
the settlement agreement has not been breached. The agency stated that
the settlement agreement was specific in requiring complainant to meet all
the requirements of the Mail Handler position before he would be hired.
The agency noted that because complainant did not initially meet the
pre-hire physical, the Labor Relations Senior Specialist afforded him
an additional opportunity to see another physician.
On appeal, complainant states that the psychiatrist who evaluated
him in July 1998, recommended that he return to gainful employment.
Complainant claims that the agency told him in October 1998, that he
should have another physical evaluation, and that he was scheduled for
an examination on November 13, 1998.
In response, the agency asserts that complainant passed his pre-hiring
requirements and was hired on December 5, 1998. The agency maintains
that there is no settlement breach given that complainant has been hired.
Further, the agency argues that at the time that complainant raised his
allegation of noncompliance, complainant had not met the requirements
of the position. Finally, the agency asserts that complainant waived
any back pay claims.
ANALYSIS AND FINDINGS
Volume 64 Fed Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
cited as 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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
Fed Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited as 29
C.F.R. �1614.504(b)) provides that the agency shall resolve the matter and
respond to the complainant, in writing. If the agency has not responded
to the complainant, in writing, or if the complainant is not satisfied
with the agency's attempt to resolve the matter, the complainant may
appeal to the Commission for a determination as to whether the agency
has complied with the terms of the settlement agreement or action.
The complainant may file such an appeal 35 days after he or she has served
the agency with the allegations of noncompliance, but must file an appeal
within 30 days of his or her receipt of an agency's determination.
The Commission has consistently held that settlement agreements are
contracts between complainant and the agency, and 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
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, 381 (5th Cir. 1984).
Pursuant to 29 C.F.R. �1614.504(b), an agency has 35 days from the receipt
of a claim of breach to resolve the matter. The Commission interprets
that provision to mean that an agency has 35 days within which to cure
any breach that has occurred. See Byrd v. Department of Agriculture,
EEOC Appeal No. 01961893 (July 3, 1997); Covington v. United States
Postal Service, EEOC Appeal No. 01913211 (September 30, 1991).
In the instant matter, complainant claimed that the agency breached the
settlement agreement by not hiring him for a Mail Handler position.
Upon review of the settlement, we note that the agreement stated that
complainant will be required to meet all pre-hire requirements to include
personal suitability, a pre-hire physical, mail handler strength test, and
any driving requirements. The psychiatric evaluation report submitted
in July 1998, offered a mixed appraisal of complainant's ability to
successfully fulfill the requirements of the Mail Handler position.
Although the psychiatrist stated that complainant may be at a greater
risk than some others for decompensation under significant stress, the
psychiatrist stated that he felt complainant was capable of returning
to gainful employment at that time. The psychiatrist added that it may
be prudent to place complainant in a setting where the work pressure
is not inordinately high, or possibly on a route where complainant may
be involved in mail delivery on a more solitary basis. In its hiring
decision in July 1998, the agency denied complainant's request for
employment on the grounds that the Mail Handler position has stress
factors and time commitments, and requires working closely with others.
The agency asserted that there was nothing it could do to accommodate
complainant's restrictions.
We find that the agency has not established that complainant was unable
to meet its hiring requirements in July 1998. The agency has failed to
adequately explain and support its position that it could not accommodate
complainant's restrictions. We are not persuaded that the work pressure
as a Mail Handler would have been inordinate and thus too stressful
for complainant. The psychiatrist stated in July 1998, his belief
that complainant was capable of returning to employment at that time.
Therefore, we find that the agency breached the settlement agreement
when it did not hire complainant as indicated in its letter dated July
17, 1998. We note that complainant was hired by the agency on December
5, 1998. Thus, the agency cured the breach, albeit several months after
it failed to comply with the settlement.
With regard to the agency's assertion that complainant waived any
back pay claims, the Commission has long held that a complainant may
validly waive only those claims arising from discriminatory acts or
practices which antedate the execution of the settlement agreement.
Vigil v. Department of the Army, EEOC Request No. 05960521 (June 22,
1998), (citing Bimes v. Department of Defense, EEOC Request No. 05970359
(March 27, 1997). We find that complainant only waived back pay claims
which he had at the time he entered into the settlement. The agency's
breach of the agreement and subsequent cure warrant that complainant
receive back pay for the period from when the breach began, July 17,
1998, until the breach was cured in December 1998, when complainant
commenced employment with the agency.
Complainant also requested compensation in the amount of $15,000.
Assuming that this is a request for compensatory damages, we note that
the Commission has held that compensatory damages are not available as
a remedy for breach of a settlement agreement. Martin v. Department of
Defense, 05940745 (August 24, 1995).
Accordingly, the agency's final decision finding that there was no breach
of the settlement agreement is hereby REVERSED. This matter is REMANDED
for enforcement of the settlement agreement pursuant to the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall reimburse complainant for back pay for the period from
July 17, 1998, to the date that complainant commenced employment with
the agency in December 1998. The agency shall complete its calculations
and reimburse complainant within sixty (60) calendar days of the date
this decision becomes final.
Copies of the agency's calculation of the amount owed to complainant and
evidence that complainant was reimbursed must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
December 22, 1999
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1 On 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.