DIABETES TYPE II AND ACUTE RENAL FAILURE AND DISCRIMINATION
Laurence R. Mason,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070191
Agency No. 4F-900-0232-06
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated September 28, 2006, finding that it was in compliance
with the terms of the July 25, 2006 settlement agreement into which the
parties entered. See 29 C.F.R. §§ 1614.402; .405; and .504(b).
The settlement agreement provided, in pertinent part, that:
I. An apology has been offered to [complainant] relative to any
misunderstanding re: the shredding of the original [Federal Notice of
Traumatic Injury and Claim for Continuation of Pay/Compensation (CA1)]
filed on 5/31/06. A second CA1 was forwarded to Injury Compensation
Section [of the agency] by Redondo Beach [facility] management on 6/16/06.
If the Department of Labor accepts [complainant’s] Department of Labor
claim, then [continuation of payment] will be pay adjusted. The injury
of 5/25/06 has presently been paid via [complainant’s] sick leave pay.
By letter to the agency dated August 24, 2006, complainant stated that
the agency was approaching breach of the settlement agreement because
the Department of Labor (DOL) accepted his workers’ compensation claim on
August 2, 2006 and the agency had yet to adjust his continuation of pay
(COP). Complainant requested that the agency specifically implement the
agreement’s terms and stated that he would request reinstatement of the
initial complaint if the agency failed to do so by September 2, 2006.
In a letter dated September 3, 2006, complainant requested reinstatement
of Agency No. 4F-900-0232-06.
In its September 28, 2006 final decision, the agency concluded that
it did not breach the July 25 agreement. Specifically, the agency
stated that DOL accepted complainant’s claim for “heat exhaustion” and
it agreed to pay complainant COP for time that he was absent from work
for a DOL-accepted illness and credit sick leave used for such illness.
The agency added, “Management only requires that [complainant] provide
the specific dates [complainant was] off work due to heat exhaustion
[and] provide medical documentation substantiating those dates.”
The instant appeal from complainant followed. On appeal, complainant
stated that he requested information regarding his leave hours from
the agency Injury Compensation Specialist (S1) three times but she
never responded (Complainant provided copies of the letters to S1).
Complainant stated that, as a result, he calculated his own hours and
provided a letter dated September 19, 2006 detailing the COP he believes
is due. Also, complainant acknowledged that he suffered a second injury
on June 17, 2006 and stated that he was told the subsequent injury would
become part of the first CA1. In opposition to complainant’s appeal,
the agency stated that complainant failed to show COP-entitlement for
heat exhaustion exclusively.
The record contains a hospital discharge record for a May 25 – 27,
2006 admission, indicating a primary diagnosis of “Acute Renal Failure”
and a Secondary Diagnosis of “Heat Illness, Acute Dehydration, Vomiting,
Diabetes Type II with Neuropath.” Also, the record contains a letter,
dated October 6, 2006, from S1 to complainant stating that she has not
received medical documentation to support his accepted claim of heat
exhaustion for COP payment. A month and a half later, S1 indicated in
a memo that no COP had been paid to complainant.
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 record reflects that the agency agreed to make COP payments
and adjustments if DOL accepted complainant’s claim. DOL accepted
complainant’s claim in August 2006; and the agency, as of November 2006,
acknowledged that it had not made COP payments to complainant and,
subsequently, asserted that complainant was not entitled to such based
on information provided. Based on the total record, the Commission finds
that complainant showed that he provided information and documentation to
the agency as requested and has some entitlement to COP, even if not to
the extent he asserts. Further, we find that the agency has provided no
indication that it has paid or intends to pay complainant COP, although
it agreed to do so in paragraph I of the July 25 agreement.1 Hence,
we find that complainant showed that the agency breached that portion
of the agreement. To remedy a finding of breach, the Commission may
order reinstatement of the underlying complaint, or enforcement of the
agreement’s terms. See 29 C.F.R. § 1614.504(c). We find that enforcing
the agreement’s terms regarding payment of COP is the appropriate remedy
in this case.
Accordingly, the Commission REVERSES the agency’s finding of no breach
of paragraph I and REMAND the matter to the agency to undertake remedial
action consistent with this decision and the ORDER below.
ORDER
Within forty-five (45) calendar days after the date this decision becomes
final, the agency is ORDERED to implement the terms of Paragraph I of
the settlement agreement to the extent that complainant is so entitled
in accordance with Federal Regulations and has not already been paid.
If there is a dispute regarding the exact amount of COP benefits, the
agency shall issue a check to complainant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. Complainant may petition for enforcement
or clarification of the amount in dispute. The petition for clarification
or enforcement must be filed with the Compliance Officer, at the address
referenced in the statement entitled “Implementation of the Commission’s
Decision.”
The agency is further directed to submit a report of compliance,
as provided in the “Implementation of the Commission’s Decision.” The
report shall include all supporting documentation verifying that the
corrective action has been implemented.
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
February 8, 2008
__________________
Date
1 Normally, Department of Labor – Office of Workers’ Compensation
Programs issues are not within EEOC jurisdiction. However, due to the
fact that, within an EEO settlement agreement, the agency agreed to pay
complainant COP benefits pursuant to Department of Labor acceptance,
under the circumstances here, we can order such payment.
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0120070191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070191
