01A20524_r
04-17-2002
Arlene Virgilio, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arlene Virgilio v. United States Postal Service
91A20524
April 17, 2002
.
Arlene Virgilio,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20524
Agency Nos. 4-J-480-0051-99
4-J-480-0028-97
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 15, 2001, finding that it was
in compliance with the terms of the May 25, 2001 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:
The Complainant's case will be moved back to where it was within 30
days of the signing of this agreement...Furthermore, her case will not
be marked with caution tape.
By letters to the agency dated July 14, 2001, August 21, 2001, and
September 15, 2001, complainant alleged that the agency breached the
settlement agreement, and requested that her underlying complaint be
reinstated. Specifically, complainant alleged that the agency failed
to place her case in its original location, as mandated by the agreement.
In its October 15, 2001 final decision, the agency concluded that it
did not breach the agreement.
The agency concluded that complainant's case was returned to the same
position guaranteed by the agreement.
On appeal, complainant contends that the agreement promises her that
her case, identified as �1608" will be placed in the proper numerical
sequence, after case �1609.� Instead, complainant contends, that
after the agreement was signed, her case's placement after case 1611
was out of sequence relative to adjoining cases, violating the terms of
the agreement.
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, the Commission finds that the agency did not
breach the settlement agreement. The record reveals that complainant's
case 1608 was originally placed at the end of Row 1, behind case 1609.
After the agreement, complainant's case was likewise at the end of Row
1, but after case 1611. The Commission notes that although adjoining
cases were moved, the pivotal fact is that complainant's case was
positioned at the end of Row 1, the original position guaranteed by the
terms of the agreement. Moreover, we further note that the terms of the
agreement only address the location of complainant's case and does not
dictate the arrangement of other cases in the sequence. Consequently,
we determine that the agency complied with the terms of the agreement by
placing complainant's case in its original position at the end of Row 1.
Accordingly, the Commissions AFFIRMS the agency's finding of no breach
of the agreement.
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 (S0900)
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:
April 17, 2002
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date