0520140214
08-21-2014
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520140214
Appeal No. 0120132918
Agency No. 9R1M09176
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120132918 (January 24, 2014). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
In the underlying case, Complainant alleged that the Agency failed to comply with the terms of an October 15, 2010 settlement agreement. In pertinent part, Complainant alleged that the Agency breached provision 1 when it failed to pay him a Performance Based Award (PBA) for fiscal year (FY) 2010 (October 1, 2009 to September 30, 2010). Moreover, Complainant alleged that the Agency breached provision 4 when it forced him to use 45 days of leave to resolve a dispute regarding the reimbursement of his relocation moving expenses.1
The settlement agreement provided, in pertinent part, that:
1. The Complainant will be hired as Assistant Lodging Manager, NAF-048-09, effective April 24, 2009 with an annual salary of $50,000.00 with back pay, benefits, interest, and cost of living increases. Retroactive entitlements will be through 15 Dec 2010. The Agency will accomplish the necessary actions for payment by the NAF accounting office, the Shared Service Center at Randolph AFB, TX, within thirty (30) calendar days of the signing of the agreement. The Complainant will report to duty no later than December 15, 2010, subject to change by mutual agreement of the parties and receipt of orders. Complainant will immediately notify the Agency of any causes for delay, including non-availability of relocation transportation.
4. The Complainant will receive travel and relocation moving expenses as provided in applicable Air Force Manual and the Joint Travel Regulation.
The appellate decision determined that the Agency complied with provisions 1 and 4 of the settlement agreement. Regarding provision 1, the appellate decision found that it contained no stipulation about performance awards. In addition, the appellate decision found that Complainant did not report to duty until March 7, 2011 and thus had not performed any work during FY 2010 on which to base a performance award. Further, the appellate decision found that if Complainant had intended for such an award to be part of the settlement agreement, he should have negotiated for it to be specifically included in the terms. Regarding provision 4, the appellate decision found that it contained no obligation for the Agency to pay Complainant for the leave he used.
In his request for reconsideration, Complainant contended that the appellate decision involved a clearly erroneous interpretation of material fact and law. First, Complainant argued that the appellate decision erroneously concluded that he was not entitled to receive a FY 2010 PBA. Specifically, Complainant asserted that PBAs are based upon the facility's performance (as opposed to the employee's performance) and that the facility met all of its performance objectives in FY 2010. In addition, Complainant asserted that back pay includes bonuses and incentive pay. Second, Complainant argued that the appellate decision erroneously calculated his reporting date. Specifically, Complainant asserted that he was not responsible for his delayed reporting date of March 7, 2011 because the Agency initially issued him orders with errors relating to the reimbursement of his relocation moving expenses. In addition, Complainant argued that the Agency's errors caused him to use 45 days of leave.
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, Complainant failed to show that the appellate decision clearly erred in determining that the Agency complied with provisions 1 and 4 of the settlement agreement. The settlement agreement contains no language requiring the Agency to pay Complainant a performance award or to restore any leave used by Complainant. Complainant's assumptions otherwise were not memorialized in the settlement agreement. The language of the settlement agreement appears to be plain and unambiguous on its face; therefore, its meaning must be interpreted from the four corners of the instrument without resort to extrinsic evidence of any nature.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120132918 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
____8/21/14______________
Date
1 Complainant ultimately received full reimbursement of his relocation moving expenses.
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2
0520140214
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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