0120080364
09-22-2009
Parminder S. Gill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Parminder S. Gill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080364
Agency No. 1E-981-0020-00
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 16, 2007, finding that it
was in compliance with the terms of the February 18, 2003, settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) Complainant will be placed on the Postal Service rolls effective
11-13-99. He will not be entitled to back pay for the period of time
between 11-13-99 and the present. However, complainant will have sick
leave credited to his account and pay adjustments done to provide him with
one hour of sick leave for 20 pay periods during each of his Anniversary
years, beginning with pay period 25 of FY 99.
(2) Complainant will sign a release of medical information
form to allow his records to be reviewed by the agency's Contract
Doctor. This form will be provided to [identified individual] as soon
as possible. Management will then schedule complainant for a Fitness for
Duty Exam which complainant must make arrangements to attend. The results
of that exam will be evaluated at the Seattle P&DC and a reasonable
accommodation checklist will be completed with complainant. If work is
deemed to be available at the P&DC, complainant will be accommodated.
(3) If no work is available within complainant's restrictions at
the Seattle P&DC, his name will be submitted to the Seattle Reasonable
Accommodation Committee (DRAC). If complainant qualifies as a disabled
employee, the Committee will evaluate his restrictions and if possible,
attempt to place him in a funded position. Complainant understands this
process, both at the Seattle P&DC and with the DRAC, could result in a
change of tour, assignment, or non-scheduled days. It also could result
in an offer of light duty in another facility that would require a change
in craft and status (to PTF).
(4) Attorney fees of $8,400 will be paid by the Postal Service to
[complainant's attorney]....
The record reflects that complainant filed an appeal regarding this
exact matter in 2005. Gill v. United States Postal Service, EEOC
Appeal No. 01A51195 (October 12, 2006). The Commission therein issued a
decision finding that there was insufficient information in the record
to make a determination as to whether a breach had occurred. As such,
the Commission ordered the agency to provide documentation that it
deemed missing from the file. It also ordered the agency to conduct
a supplemental investigation into whether it had complied with the
settlement agreement.
In response to the Commission's order, the agency concluded in an October
16, 2007, final determination letter that, after a complete inquiry
into complainant's allegations, it had complied with all five terms of
the agreement and as such was not in breach of the settlement agreement.
Specifically, the agency maintained that: complainant's November 12, 1999,
resignation had been cancelled and he had been placed back on the rolls;
his sick leave had been credited to his account as of October 4, 2007;
the results of his fitness for duty examination had been evaluated and a
reasonable accommodation checklist had been completed with the assistance
of complainant and complainant's attorney on March 19, 2004; because
work was not available at the Seattle P &DC, his name was subsequently
submitted to DRAC for evaluation, and DRAC on April 26, 2004, denied his
request for accommodation based on their determination that he was not
a qualified individual within the meaning of the Rehabilitation Act1;
and finally, the agency indicated that attorney fees in the amount of
$8,400 had been paid.
By letter to the Commission dated October 24, 2007, complainant alleges
that the issues regarding the breach of the February 18, 2003, settlement
agreement remain outstanding. Specifically, complainant alleges that the
agency failed to conduct the supplemental investigation that was ordered
by the Commission. Complainant contends that the agency took no action
with regard to the Commission's order and simply reiterated what it had
stated in its original Letter of Determination dated November 4, 2004.
Further, complainant asserts that the agency breached Paragraph 2.
Complainant explains that with the accommodation of a chair, there was
work available that he could do. This was confirmed, he argues, by a
vocational rehabilitation expert, who indicated that, with accommodation,
complainant could continue to work on either the flat sorter machine
or he could manually case mail. Complainant also asserts that the
agency breached paragraph 3 of the settlement agreement because it
incorrectly found that he was not an individual with a disability.
Complainant argues that the agency misconstrued the Rehabilitation Act
and its coverage regarding complainant.
Complainant indicates that he would be agreeable to mediation regarding
this matter. However, he asks that, if mediation is not an option, the
agency be ordered to specifically perform by placing him in a position
where he could be accommodated at the Seattle P &DC or other Seattle-area
facility or in the alternative, the Commission reinstates his complaint.
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 Commission finds that the agency has not
breached the settlement agreement. The Commission acknowledges that the
agency took more time than was reasonable to comply with the settlement
provisions.2 Nonetheless, we find that the agency has complied with all
of the terms of the agreement. While it is clear from complainant's
appeal that he is dissatisfied with the outcome of these proceedings,
it is also clear from the record that the agency has complied with the
actions that it had agreed to take. Finally, we note that, contrary
to complainant's assertion, the agency did comply with the Commission's
Order to provide additional information via a supplemental investigation.
Accordingly, we find that a breach has not occurred.
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 (S0408)
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 (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
September 22, 2009
Date
1 The agency maintains that although it believed the actions it had taken
satisfied the spirit and intent of this stipulation, it took additional
steps to attempt to accommodate complainant.
2 In instances where a settlement agreement does not contain a time
period for the agency to comply with the terms, the Commission will
assume that the agreed change was to occur within a reasonable amount of
time after the execution of the settlement agreement. Rizas v. United
States Postal Service, EEOC Appeal No. 0120073659 (January 22, 2008).
Here, the agency was not in full compliance with regarding the crediting
of complainant's sick leave until October 4, 2007.
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0120080364
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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