01A30233_r
07-31-2003
Emilio Chervoni, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Emilio Chervoni v. United States Postal Service
01A30233
July 31, 2003
.
Emilio Chervoni,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30233
Agency No. 1H-336-0038-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated September 9, 2002, finding that it was in
compliance with the terms of the March 5, 2001 settlement agreement into
which the parties entered.
The settlement agreement provided, in pertinent part, that:
It is mutually agreed that the following is in full settlement of
all outstanding grievances and EEO's pertaining to the transfer of
[complainant] into the Tampa office. He will be assigned a seniority
date of June 19, 1999 and will be given the opportunity to work make up
overtime of 184 hours or 24 opportunities. This offer must be fulfilled
within a two year period from the date of signing and will not have an
impact on normal overtime activities within the pertinent group.
By letter to the agency dated February 20, 2002, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency reinstate the settled matter at the point processing
previously ceased. Specifically, complainant alleged that the agency
failed to assign him a seniority date of June 19, 1999, until more than
two years after the settlement agreement was executed. Complainant also
stated that he had not received the overtime opportunities stated and
that he had missed opportunities to upgrade to level 3.
In its September 9, 2002 decision, the agency concluded that the
settlement agreement had been fully implemented. The agency found
that a Step Two grievance memorandum dated June 8, 2002, documented
that complainant's seniority date had been changed to June 19, 1999,
as the agreement required. The agency further found that the time in
which the agency had to comply with the overtime allotment had not yet
expired and that the agreement specified nothing regarding an upgrade
to level 3 for complainant. Accordingly, the agency found no breach of
the agreement had occurred.
On appeal, complainant explains that in the interim, he entered into a
subsequent settlement agreement regarding the overtime opportunities,
and thus the only remaining breach concerns the agency's failure to post
the specified seniority date more than two years after the agreement
was signed.
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, we find the settlement agreement does not specify
when the agency agreed to assign to complainant a seniority date of June
19, 1999. In such instances, the Commission will assume that the agreed
change was to occur within a reasonable time after the execution of the
settlement agreement. The record confirms that the agency complied with
the agreement regarding complainant's seniority date within a reasonable
time after the execution the agreement. We find nothing in the plain
language of the settlement agreement regarding complainant's "Occ Group"
seniority date, which appears to have changed, as the agency states,
on March 10, 2001. We therefore find that no breach of the settlement
agreement occurred and that complainant is not entitled to reinstatement
of his complaint.
We therefore AFFIRM the agency's decision finding that no breach of the
March 5, 2001 settlement agreement occurred.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 31, 2003
__________________
Date