01A23338_r
07-18-2003
Harry Vazquez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Harry Vazquez v. United States Postal Service
01A23338
July 18, 2003
.
Harry Vazquez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23338
Agency No. 1E-837-0008-01
DECISION
Complainant appeals to the Commission from the agency's April 30, 2002
decision finding no breach of an April 3, 2001 settlement agreement.
The settlement provided, in pertinent part:
[Manager] agrees to rehire [complainant] as a Mail Handler, PTF,
no later than May 3, 2001 (or earlier if possible). [Manager and
complainant] agree that [complainant] will be under a new 90 day
probation period. [Complainant] will work within [agency official's] pay
location. [Agency official] will address [complainant's] return at the
next standup meeting that is done weekly. This is to prevent any possible
issues/gossip that may result from [complainant's] return. [Manager]
agrees to remove the March 19, 2001 �Removal Letter� from [complainant's]
OPF upon [complainant's] successful completion of the new probation.
On February 28, 2002, complainant subsequently notified the agency that
it had breached the settlement agreement. According to complainant,
the settlement agreement should have resulted in the same seniority date
that would have existed had he not been terminated. Complainant claimed
that he was improperly assigned a seniority date reflecting the date
that his new probation period began, April 21, 2001, rather than the
date his initial probationary period commenced.
In its April 30, 2002 decision, the agency found no breach of the
settlement agreement. The agency explained that complainant received
a new seniority date, new retirement computation date, and new leave
computation date as a result of complainant's rehire under a new
probationary period commencing April 21, 2001.
On appeal, complainant claims that there was no clear �meeting of the
minds� regarding whether he would return to work with a new seniority
date. Complainant argues that absent direct language in the settlement
agreement to the contrary, he should retain his original seniority date.
Complainant also argues that the collective bargaining agreement indicates
he should retain his original seniority date.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).
The settlement agreement provided that complainant would be rehired
and that complainant would have a new 90-day probationary period.
The settlement agreement makes no reference as to whether complainant
would retain his original seniority date or have a different seniority
date. In light of the agreement's silence, we find that the change in
complainant's seniority date did not breach the settlement agreement.
If complainant wished to retain his original seniority date, he should
have negotiated to have such expressly written into the settlement
agreement. We make no finding regarding whether complainant is entitled
to retain his original seniority date under the terms of the collective
bargaining agreement; interpretation of the union contract is not within
the Commission's jurisdiction. However, with regard to the settlement
agreement, we find that the agency's determination that no breach occurred
was proper and is AFFIRMED.
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 18, 2003
__________________
Date