01A21569_r
12-10-2003
Stephen M. Rivera, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephen M. Rivera v. United States Postal Service
01A21569
December 10, 2003
.
Stephen M. Rivera,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21569
Agency No. 1-H-328-0022-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
final determination dated December 11, 2001, finding that it was in
compliance with the terms of a March 16, 2000 settlement agreement.
The Commission accepts the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The March 16, 2000 settlement agreement provided, in pertinent part, that:
(1) All �MDO's� on all tours, should have a list of all employees
(Career, Casual, TE) including pay locations and supervisors, who have
the capability and are willing to communicate with the hearing impaired
via sign language.
(2) An in-house interpreter should be provided for all Safety Talks,
Service Talks, Training, and any Special Instructions given, in reference
to Job/Employment related meetings, including, but not limited to,
Opting and Downsizing. Additionally, an in-house interpreter should be
provided for all Central Florida Satellite Broadcasts, as well as any
other Postal videos, until such time as a closed-captioning is provided.
(3) Supervisors are to speak slowly and carefully when giving training
instructions and will be augmented with written instructions.
(4) If the in-house interpreter is unable to fully communicate with
[complainant], the [agency] will provide a State �QA� or National
Certified �ASL� Interpreter.
By letter to the agency dated October 5, 2001, complainant asserted
that the agency failed to fully comply with any of the above referenced
provisions. Specifically, complainant identified the following ten
incidents concerning the agency's failure to provide a sign language
interpreter for complainant:
No interpreter was provided for complainant at Friday safety/service talk
meetings at complainant's pay location, precluding his participation;
On a daily basis, certain supervisors held work-related meetings,
but failed to provide complaint with an interpreter, precluding his
participation;
On July 9, 2001, the agency canceled required testing because an
interpreter could not be provided, and repeatedly ignored complainant on
this issue since August 31, 2000. Moreover, alll clerks at complainant's
pay location began qualifying for the new data conversion operator
positions, but complainant was discriminated against because the
agency failed to provide adequate preparation for testing procedures and
comprehension. An �ASL� interpreter was required to assist complainant's
understanding and performance, but the agency failed to provide one.
On July 6, 2001, in responding to a request from the union,
complainant's supervisor indicated that no scheduled arrangements to
have an interpreter for complainant had been made, thus excluding him
from required on the job activities.
On July 5, 2001, and thereafter, two management officials met with nine
clerks from complainant's pay location, to advise them that their bids
would be abolished on August 11, 2001. The clerks had an opportunity
for questions and answers, but complainant could not participate because
the agency failed to provide an interpreter.
On June 29, 2001, the agency failed to provide complainant with
an interpreter on a mandatory safety talk on the topic of anthrax,
rendering him an �outcast.�
On May 3, 2001, after a 2-week wait, the agency provided an interpreter
to give complainant an individual account on meetings held by a named
agency manager. However, complainant desires to feel included by being
able to participate in the meetings while they are taking place, and
his inability to do so promotes a feeling of isolation. Also, the
interpreter was only available for 45-minutes, so that complainant
was rushed through the session, which also included coverage of a
union matter.
On April 20, 2001, a named agency manager conducted a meeting,
but responded to complainant that no interpreter was available, and
that another meeting would be arranged for him the next week, thereby
excluding complainant and other hearing impaired employees from this
meeting. People with disabilities want to fit in with their peers,
and they do not want private meetings.
On February 2, 2001, a named supervisor conducted a mandatory Voice
of the Employee (VOE), but failed to provide complainant with an
interpreter.
On August 31, 2000, the agency failed to provide complainant with an
interpreter for testing on the 710 Clerical Exam and 714 typing Exam,
which are required to qualify for data conversion operator positions,
precluding complainant from acquiring this position.
In its December 11, 2001 final determination, the agency made reference to
its August 8, 2001 written response to an August 7, 2000 meeting between
complainant and management concerning its failure to provide him with
an interpreter as a reasonable accommodation. Based thereon, the agency
generally found that although an interpreter was not always provided to
complainant at the time of a presentation, complainant was not harmed
or denied any benefits because of short delays. More specifically, the
agency addressed the incidents in complainant's breach claim as follows:
Regarding incidents 1, 2, 5, 6, and 7, the agency determined that
complainant agreed that in lieu of an interpreter, the agency could
provide a written version of the talks before-hand, as well as a flip
chart for his questions. Therefore, in light of this arrangement,
the agency found no breach of the settlement agreement.
Regarding incidents 3 and 9, the agency determined that on August 7,
2000, a management official, with the assistance of an interpreter,
reviewed issues complainant had with the computer used to train on the
Tray Management System, and that complainant had an interpreter when he
took a written examination in September 2000 and again on July 25, 2001.
Therefore, the agency found no breach of the settlement agreement.
Regarding incident 4, the agency found that on July 17, 2001, complainant
attended a meeting to discuss the issue of �his abolishment� with the
assistance of a certified interpreter; and, regarding incident 8, found
that in March 2001 complainant received VOE training with the assistance
of a certified interpreter. Therefore, the agency found that neither
incident 4 or 8 constituted a breach of the settlement agreement.
On appeal, complainant denies that he agreed to an alternative
arrangement, and asserts that the only agreement is the one reflected
in the settlement agreement. Moreover, complainant avers that
he has a difficult time with written language, so that providing
a written copy of a presentation is not especially helpful to him.
Furthermore, complainant contends that the agency's failure to provide an
interpreter while a presentation is on-going denies him the opportunity
to participate, not only because he cannot ask his own questions,
but also because he cannot know the questions being asked by others.
Additionally, complainant contends that the agency's response to
incident 3 does not address the same issue, which concerns his lost
opportunity for a new bid position due to the impending abolishment
of his flat-sorter bid, and avers that at no time was a certified
interpreter provided to explain the abolishment of the bid position.
As to incident 8, complainant argues that this training was mandatory,
such that the agency's failure to provide an interpreter breached the
settlement agreement. Finally, as to incident 9, complainant contends
that he failed several in-service exams which would have qualified him
for a data conversion position after the abolishment of his bid position,
due to the lack of an interpreter, noting that the Tray Management System
had nothing to do with this testing.
Analysis and Findings
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).
The Commission notes that the agency admits that it routinely fails to
provide complainant with the services of a sign language interpreter at
the time of a presentation, as contemplated by the settlement agreement,
but instead provides an alternative service (i.e., flip-chart and written
notes), or the services of a sign language interpreter after-the-fact.
Complainant maintains that these services fail to comply with the
settlement agreement because they do not permit him to meaningfully
participate in presentations/meetings/discussions, as would the services
specified in the settlement agreement.
The Commission determines that a reasonable interpretation of
the pertinent provisions of the settlement agreement reflects an
agency obligation to provide the specified services at the time
of the presentation, and that there is no provision allowing for an
alternative service. Furthermore, we find that the essential benefit of
the settlement agreement to complainant is that he be able to participate
in all work-related presentations, as well as training, and that the
agency's alternative services do not confer this benefit to complainant.
Moreover, we find that the agency apparently intends to continue to
provide only the alternative services which it is currently providing to
complainant. Therefore, we find that the agency has fundamentally breached
the settlement agreement, and does not intend to cure its non-compliance.
Accordingly, for the reasons set forth above, we find that the appropriate
remedy in this case is reinstatement of complainant's underlying complaint
at the point at which processing ceased. See 29 C.F.R. � 1614.504(c).
In conclusion, we REVERSE the agency's December 11, 2001 final decision
finding of compliance with the settlement agreement, and as a remedy,
we REMAND the case to the agency to reinstate the underlying complaint,
as more fully set forth in the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Within thirty (30) calendar days of the date that this decision becomes
final, the agency is ordered to reinstate Complaint No. 1-H-328-0022-00
at the point at which processing ceased. The agency is ordered provide
complainant with written notice of this action.
A copy of all pertinent documentation verifying compliance with the
above order must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 10, 2003
__________________
Date