01993587
05-18-2000
Samuel J. Joyner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.
Samuel J. Joyner, )
Complainant, )
)
v. ) Appeal No. 01993587
) Agency No.4H320102896, 4H320104695
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W. Region), )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 25, 1999, finding that
it was in compliance with the terms of the June 11, 1997 settlement
agreement.<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 February 25, 1999 settlement agreement provided, in pertinent part,
that:
(1)Parties hereby agree to select an independent orthopedic physician
for final determination of complainant's medical suitability for the
position of PTF Distribution Clerk. It is agreed that the independent
orthopedic surgeon will be selected by contacting the American Medical
Association for a list of five (5) orthopedic physicians, from which
each party will be allowed to strike two (2). The remaining physician
will be used for the final determination. This shall be done no later
than 30 days from today's date.
(2)It is agreed that upon receiving a determination that complainant is
medically suitable for the position of PTF Distribution Clerk, agency
agrees to hire complainant to the first available PTF Distribution Clerk
position, in the Jacksonville area.
(5)Complainant must meet all of the prerequisites for the PTF
Distribution Clerk position applicable to Postal Rules and Regulations
and the Collective Bargaining Agreement to include, but not limited
to, a new period of seniority, salary scale and 90 day probationary
period.
By letter to the agency dated May 5, 1998, complainant alleged that the
agency breached the settlement agreement, and requested that the agency
implement its terms. Specifically, complainant alleged that the agency
failed to hire him to the PTF Distribution Clerk position after he was
medically cleared by the mutually agreed upon orthopedic surgeon.
In its February 25, 1999 FAD, the agency concluded that complainant
failed meet all of the prerequisites for the PTF Distribution Clerk
position as stated in paragraph 5 of the agreement. Since complainant
failed a preemployment physical, the FAD concluded that complainant
did not meet the prerequisites for duty, notwithstanding complainants'
clearance for duty by the mutually agreed upon orthopedic surgeon.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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, we find that the plain meaning of paragraph 1 of the
settlement agreement grants a mutually agreed upon medical expert the
exclusive authority to decide if complainant is medically suitable for
the PTF Distribution Clerk position. Under the agreement, the agency's
expert may not make the determination of complainant's medical suitability
for the position. Nevertheless, a review of the medical expert's report
establishes it does not in fact adequately address whether complainant is
medically suitable for the PTF Distribution Clerk position. The medical
expert's report is inadequate in that it fails to address complainant's
medical condition relative to the functional requirements of the position.
While the record contains the functional requirements of the position,
it appears that the medical expert was not provided with these functional
requirements. For example, the medical expert found that complainant
could perform the duties of the position because he was capable of
intermittent walking for one (1) to two (2) hours a day and lifting
below fifty (50) lbs.; the medical expert stated that complainant could
not bend or pull. However, the functional requirements include inter
alia walking for eight (8) hours a day, lifting up to 70lbs., repeated
bending and pulling. In addition, the medical expert apparently made
no findings on many other functional requirements of the position such
as mental and muscular coordination, pushing and reaching, as outlined
in the Medical Examination and Assessment form.
Before we reach a decision on whether the settlement agreement was
breached, we must first have before us the medical expert's specific
conclusions as to whether the complainant satisfies the functional
requirements of the PTF Distribution Clerk position.
Accordingly, we VACATE the FAD and REMAND the claims for processing
consistent with the ORDER below.
ORDER
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall permit the complainant to supplement the record with
additional medical findings from the mutually agreed upon medical expert
regarding his medical suitability for the PTF Distribution Clerk position.
The supplemental findings may be produced after a new medical examination.
The additional medical findings shall include the expert's conclusions
on whether complainant meets the functional requirements of the position
as provided in the Medical Examination and Assessment form.
If the mutually agreed upon medical expert is not available, the agency
shall cooperate with the complainant by selecting a new expert under
the procedure outlined in paragraph 1 of the settlement agreement.
Once the sixty (60) days has expired, the agency shall either respond
to complainant in writing, within (15) calendar days, specifically
implementing the settlement agreement, or issue a new FAD. A copy of
the new FAD and/or notice of processing 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 (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 (R0400)
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:
May 18, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.