01a23930_r
06-10-2003
Malcolm C. Gustafson, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Malcolm C. Gustafson v. Department of the Air Force
01A23930
June 10, 2003
.
Malcolm C. Gustafson,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A23930
Agency Nos. 9R1M01441, 9V1M02073 & 9V1M01608
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's complaints of unlawful employment discrimination
that the parties had settled is proper. See 29 C.F.R. � 1614.504.
On February 27, 2002, the parties entered into a settlement agreement
resolving the complaints. The settlement agreement provided, in pertinent
part, that:
3.b. The agency will award a retro-active temporary promotion and
associated back-pay for past performance on 01 Feb 98 to 16 Apr 99 from
GS-346-12 to GS-343-13.
It is understood by all parties that the Defense Finance and Accounting
Service (DFAS) will make financial disbursements under this agreement,
and that the Agency has no control over DFAS. Accordingly, the agency
cannot be held responsible for any oversights or delays that may occur
as a result of action or inaction by DFAS. The agency shall use its
influence and resources to facilitate prompt and efficient action on
payments to [complainant] provided for by this agreement.
On June 5, 2002, complainant alleged that the agency breached provision
3.b. of the settlement agreement when he only received $3,224.80.
Specifically, complainant maintains that the $3,224.80 in back pay did
not include the BRAC lump-sum leave payout nor interest on that back pay.
Complainant indicated that the agency, prior to the settlement agreement,
estimated that he would received $6,402.00 after the settlement agreement.
On July 18, 2002, the agency issued its decision finding no settlement
breach. The agency stated that the settlement agreement did not provide
for interest on the back pay. The agency attached to the decision
DFAS's description of what was paid to complainant. The agency maintains
that the estimate that was discussed during settlement negotiations was
strictly an estimate, and that the settlement agreement does not provide
for pay differential for saved leave under BRAC law.
The Commission has 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, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984).
Upon review, the Commission finds that the settlement agreement does
not, specifically, provide for the amount of $6,402.00 to be paid to
complainant as back pay. The record, undisputed by complainant, indicates
that complainant was temporarily promoted and received back-pay, in the
amount of $3,224.80. With regard to the BRAC lump-sum leave payout
and interest on complainant's back pay, the Commission finds that
the settlement agreement does not, expressly, provide for such, which
are beyond the scope thereof. See Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). Ultimately it is
complainant's burden to show that he was paid insufficient monies under
the settlement agreement; complainant has not met that burden.
Accordingly, the agency's decision is hereby 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
June 10, 2003
__________________
Date