01A41665
07-15-2004
David P. Norman, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
David P. Norman v. Department of the Air Force
01A41665
July 15, 2004
.
David P. Norman,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A41665
Agency No. 9R1M01208L04
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated December 9, 2003, concerning the terms of the
January 17, 2003 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:
2. In exchange for the actions and promises the Complainant in paragraph
1 of this agreement the Agency agrees that:
(b) The Complainant's 5-day suspension will be reduced to a 3-day
suspension with 2 days being considered a weekend. The net effect of
this action will be that the Agency will give complainant 4 days backpay
at his May of 2001 paygrade. The Agency will ensure that FM is provided
the dates for which the Grievant is being reimbursed in order to ensure
accurate interest is accessed on this amount due the Grievant.
The agency will reimburse the Complainant the 2 and 1/4 hours of AWOL
that was deducted from his pay in 2001.
By letters to the agency dated June 25 and August 6, 2003, complainant
alleged that the agency was in breach of the settlement agreement.
Specifically, complainant alleged that the agency failed to reduce his
suspension to 3 days, and that complainant was not paid 4 days backpay
with interest. After the agency made efforts to rectify the alleged
breach and so informed complainant, complainant filed a second breach
claim on November 6, 2003, claiming that he should have been paid for
32 hours of backpay per provision 2(b) of the agreement, but 2.75 hours
had been deducted from the 32 hours in error. Complainant noted that the
deduction of 2.75 hours was related to his reimbursement properly given
for provision 2(c) of the agreement, and should not have been deducted
from the 32 hours of backpay he was entitled to under provision 2(b).
In a December 9, 2003 response to complainant's second breach claim,
the agency stated it could not respond to the breach claim within the 30
days provided for in the regulations, and gave complainant appeal rights
to the Commission. The agency stated that a request for information
needed to respond to complainant had been requested from the Pensacola
payroll office, and would be sent to complainant after it was received.
On January 7, 2004 complainant appealed the agency's December 9, 2003
decision concerning his second breach claim (related to backpay) to
the Commission.
By letter dated January 30, 2004, the agency sent complainant information
indicating that, contrary to his breach claim, he had been properly
compensated under provisions 2(b) and (c) of the Settlement Agreement.
The information sent to complainant showed that on November 7, 2003,
he had received 34.25 hours (32 hours per 2(b), and 2.25 hours per
2(c)) at the appropriate 2001 pay rate, for a total of $924.41, which
was the amount reflected on complainant's November 7, 2003 Leave &
Earnings Statement.
By letter dated February 6, 2004, complainant provided comments to his
appeal, stating that the agency had paid complainant as outlined in
the information attached to its January 30, 2003 letter to complainant.
Complainant specifically states, however, that the agency paid him �a sum
of $924.41 (34.25 hrs x $26.99 = $924.41) in retroactive earnings but did
not include the interest that had accrued on the money due [complainant]
as required by [provision] 2(b) of the settlement agreement.�
In response to complainant's appeal comments, the agency provides
documentation showing that interest owed in the amount of $137.85 was
paid to complainant pursuant to provision 2(b) on December 13, 2003,
and states that the documentation was previously provided 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).
In the instant case, we find that complainant has failed to show agency
breach of the settlement agreement. The record shows, and complainant
admits on appeal, that he was paid the amounts required under provisions
2(b) and (c) of the settlement agreement that were the subject of his
appeal to the Commission. Complainant makes no claim on appeal that
the amount paid was incorrect. As for complainant's remaining claim on
appeal that he was not paid appropriate interest on the backpay due
him under provision 2(b), the agency has provided evidence on appeal
that it paid complainant the interest required under provision 2(b) on
December 13, 2003. Absent evidence by complainant that he has not been
paid interest, or that the interest paid by the agency was incorrect,
we find no basis to find agency breach of the settlement agreement.
Accordingly, we find no breach of the parties' January 17, 2003 settlement
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 15, 2004
__________________
Date