Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1988)

MEMORANDUM^** 

Harry Kasch filed an action in California Superior Court against International Light Metals Corporation (ILMC) and various of its employees. The complaint alleged: (1) age discrimination under state law, (2) breach of contract, (3) breach of implied covenant of good faith and fair dealing, and (4) fraud and deceit. The action was removed to federal court because the disputed contract was an Equal Employment Opportunity Commission (EEOC) predetermination settlement agreement and thus its interpretation involved federal law. The district court granted ILMC's motion for summary judgment as to the second and third causes of action and remanded the first and fourth causes of action to state court.

Kasch appeals the district court's order of summary judgment against him on his second and third causes of action. ILMC cross-appeals on the ground that if we reverse the district court's order of summary judgment, we should also reverse the district court's order of remand. We affirm the order of summary judgment, and thus do not reach the issues raised in the cross-appeal.

* Kasch was employed by ILMC from August 1981 until his retirement date of June 2, 1988. The single issue on this appeal is whether ILMC was obligated to employ Kasch after his retirement date. Kasch contends that such an obligation arose out of an agreement between Kasch and ILMC that was negotiated with the help of the EEOC.

In June 1987, approximately one year before Kasch was scheduled to retire, Kasch received notice that he was going to be laid off. He filed a charge of discrimination with the EEOC, and after a series of negotiations Kasch and ILMC settled their differences. The disputed language in the settlement agreement that was prepared by the EEOC provides:

June 2, 1988 is the date for Charging Party to retire. If the workload is such that it is warranted, he may be extended an invitation by the company to continue working.

Kasch contends that the word "may" creates an obligation on behalf of ILMC to employ him past his retirement date if there is an appropriate workload. ILMC counters that the word "may" should be given its ordinary meaning signifying discretion or choice.

II

Kasch timely appealed and ILMC timely cross-appealed; we have jurisdiction pursuant to 28 U.S.C. § 1291. The district court's grant of summary judgment is reviewed de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990).

Construction of an EEOC predetermination settlement agreement is governed by federal law. Brewer v. Muscle Shoals Bd. of Education, 790 F.2d 1515, 1519 (11th Cir. 1986). However, if the language is clear and unambiguous we need not determine the extent to which federal common law allows extrinsic evidence to be considered. "Summary judgment is appropriate when the contract terms are clear and unambiguous, even if the parties disagree as to their meaning." United States v. King Features Entertainment, Inc., 843 F.2d 394, 398 (9th Cir. 1988).

Ordinarily "may" is " [a]n auxiliary verb qualifying the meaning of another verb by expressing ability, competency, liberty, permission, possibility, probability or contingency." Black's Law Dictionary 883 (5th ed. 1979) (citing United States v. Lexington Mill Co., 232 U.S. 399, 411 (1914)). Although the word "may" can be used in certain situations to imply "shall" or "must", there is nothing in the language of the settlement agreement to indicate that the parties intended "may" to have anything other than its ordinary meaning.

The language of the agreement is not ambiguous. ILMC did not have an obligation; it merely had the option of offering Kasch an invitation to continue working past the date of his retirement. The district court correctly granted summary judgment. Because we affirm the district court's order of summary judgment, we do not reach the issue raised in the cross-appeal concerning the district court's order of remand.

AFFIRMED.