0120080900
03-18-2008
Bertha A. Gustafson, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Bertha A. Gustafson,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120080900
Agency No. AAFES 07.059
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated November 20, 2007, finding that it was in compliance
with the terms of the August 28, 2007 settlement agreement into which
the parties entered. See 29 C.F.R. �� 1614.402; .405; and .504(b).
The settlement agreement provided, in pertinent part, that:
[T]he Agency hereby agrees:
(a) They will hire [Complainant] as an Intermittent Food Service
Worker at the main Burger King on Lackland AFB at a base hourly rate of
$7.75 provided we receive a favorable background check from Choice Point.
(b) Upon receipt of the favorable background check, the agency agrees
to give [Complainant] a two week timeframe to give her present position
resignation notice.
(c) To train the Complainant for cash handling/Cashier within
the Burger King and the Complainant consents to perform all required
job duties in accordance to the job description for the position,
5582M02-06, Food Svc Wkr (CM-BK), which is in effect today and provided
to the Complainant. If the job description changes at a later date,
the Complainant will be required to perform those duties as would be
required of the position.
(d) They will provide minimum of one weekend day (Saturday or Sunday)
per month as a day off and will not schedule her earlier than 7:00am or
later than 17:00pm for the first twelve months of employment.
By letter to the agency dated October 19, 2007, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency void the settlement agreement and reinstate the underlying
complaint or reform the current settlement agreement as to the minimum
number of hours and other matters. Specifically, complainant alleged
that the issue of the underlying EEO complaint is that complainant was
hired as full-time (34 - 35 hours per week) but she was never scheduled,
so the crux of the relief in the settlement agreement is based on her
working at least 34 hours per week. Further, complainant stated that
any provisions in the agreement that are not specific, omitted or left
unaddressed should be viewed in favor of complainant, consistent with
Federal and State contract laws. Complainant stated that the agency
breached the agreement because complainant has been scheduled less than
34 hours per week or can be sent home earlier than scheduled or asked
to start work later than scheduled.
In its November 20, 2007 final decision, the agency concluded that
it did not breach the settlement agreement. Specifically, the agency
stated that the issue regarding a minimum number of scheduled hours is
not addressed in the agreement, so the matter would constitute a new
claim that would have to be processed accordingly. The instant appeal
from complainant followed. The record contains an EEO Complaint, dated
December 10, 2007 and identified as AAFES 08.023, alleging that the agency
discriminated against her based on sex (female), age (over 40), disability
(Epileptic seizures) and reprisal for prior EEO activity when it started
closely monitoring complainant's work, did not allow her to work at least
34 hours per week, lessened the wages for the hours she did work for
three pay periods, and required her to work the cash register but did not
provide her appropriate training. In a letter dated January 7, 2008, the
agency accepted the claims articulated in AAFES 08.023 for investigation.
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).
We conclude that the agency properly found no breach of the August 28,
2007 settlement agreement because the issue on which complainant claims
noncompliance is not addressed in the agreement. We further note that
complainant's claim that the agency failed to schedule her for at least
34 work hours constitutes a claim of subsequent acts of discrimination
that should be processed as separate complaints rather than as a breach
allegation. See 29 C.F.R. � 1614.504(c). We note that the agency
properly addressed complainant's claim regarding at least a minimum
number of work hours as a new complaint (Agency No. AAFES 08.023).
Thus, we AFFIRM the agency's final decision.
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
March 18, 2008
__________________
Date
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0120080900
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120080900