Allan T. Cummings, Appellant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionApr 13, 1999
01990634 (E.E.O.C. Apr. 13, 1999)

01990634

04-13-1999

Allan T. Cummings, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Allan T. Cummings v. Department of the Interior

01990634

April 13, 1999

Allan T. Cummings, )

Appellant, )

) Appeal No. 01990634

v. ) Agency No. FNP-96-010

)

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

________________________________)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination

in violation of �501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq. Appellant also appeals to the Commission for

a determination as to whether the agency complied with the terms of

a settlement agreement which the parties had entered into. See 29

C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended. The final

agency decision was dated September 11, 1998. The appeal was postmarked

October 29, 1998. The agency failed to submit a postal return receipt

or other evidence that would show when appellant received the final

agency decision. Accordingly, the appeal is deemed to be timely filed,

and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUES PRESENTED

The issues on appeal are: 1. whether the agency properly dismissed

appellant's complaint on the grounds that it involved the same issues

raised in an appeal filed with the Merit Systems Protection Board

(MSPB), and 2. whether the agency breached a settlement agreement that

the parties entered into October 1993.

BACKGROUND

A review of the record reveals that, following the issuance of a

recommended decision by an EEOC Administrative Judge (AJ) finding

discrimination, appellant and the agency executed a settlement agreement

in October 1993.<1> The settlement agreement provided, in pertinent

part, that the agency would pay appellant $10,000.00 and place him into

the position of Park Ranger effective January 9, 1994. The agreement

further stated that:

2. Upon completion of a favorable background check on the complainant,

as required by NPS-9 Law Enforcement Guidelines, the agency shall ensure

that the complainant is enrolled in the first mutually agreeable Basic Law

Enforcement for Land Management Agencies course offered by the FLETC; and

3. If the complainant is unable to meet the requirements of the training

course referenced in item number 2 to obtain a law enforcement commission,

the agency shall ensure that the complainant is placed in an equivalent

position in pay without law enforcement responsibilities.

Appellant subsequently contacted an EEO Counselor and filed a formal

complaint on November 13, 1995, alleging that he had been discriminated

against on the basis of his disability (alcoholism) and in reprisal for

prior EEO activity when: 1. he was not sent to Federal law enforcement

training; 2. he received a notice of proposed removal; 3. his law

enforcement commission was revoked; and 4. the agency failed to comply

with the terms of the October 1993 settlement agreement.

According to the record, appellant was scheduled for law enforcement

training in the spring of 1994, but was unable to attend due to a

medical problem. It appears that appellant was placed into a permanent

Park Ranger position prior to that time. The Park Superintendent noted

that, in the fall of 1994, management discovered that appellant had

misrepresented information on numerous application forms, including

the documentation submitted to initiate the background check for the

position specified in the settlement agreement. Appellant was then placed

into the position of Park Ranger (Film Permit Coordinator), a position

with no law enforcement duties, in early 1995. The agency conducted an

investigation into the falsification, which resulted in appellant's March

1996 termination. Appellant appealed his termination to the MSPB on March

24, 1996. An MSPB Administrative Judge (AJ) issued a decision sustaining

the agency's action and finding no discrimination on March 23, 1998.

In its final decision dated September 11, 1998, the agency dismissed

appellant's complaint on the grounds that his MSPB appeal raised the

same allegations. The agency stated that the matters in question were

directly related to appellant's removal, that is, the issue adjudicated

by the MSPB.

On appeal, appellant asserted that the MSPB AJ specifically excluded

allegations 1, 3, and 4 from consideration. The agency countered that

appellant's actions in falsifying information on his application forms

made it impossible to comply with the terms of the settlement agreement.

The agency further contended that all issues were in fact addressed by

the MSPB.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(d) provides for the dismissal of

a complaint, or portion thereof which raises the same matter as that

contained in an appeal to the MSPB, provided that the complainant has

elected to pursue the matter through non-EEO channels. As stated,

appellant filed an appeal with the MSPB concerning his removal from

employment, and the MSPB issued a decision finding no discrimination

with regard to that action.<2> The Commission notes that the dismissal

of an issue involving a proposed action is proper upon the filing of a

mixed case appeal with the MSPB. Accordingly, the agency's dismissal

of allegation 2 was proper, and is AFFIRMED.

The Commission finds that the remaining allegations concern the agency's

alleged noncompliance with the October 1993 settlement agreement.

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.

In addition, it has long been known that a settlement agreement is a

contract between the employee and the agency, to which ordinary rules of

contract construction apply. Roberts v. USPS, EEOC Appeal No. 01842193

(May 8, 1985). The Commission has further held that the face of the

agreement best reflects the understanding of the parties. See Wilson

v. EEOC, EEOC Appeal No. 01881684 (October 13, 1989). However, despite

the Commission's application of the plain meaning rule in reviewing

settlement agreements, on occasion, parol or extrinsic evidence beyond

the four corners of the document will be considered where the terms of

the settlement are ambiguous or for equitable reasons. See Eggleston

v. Department of Veterans Affairs, EEOC Appeal No. 01901569 (May 22,

1990), request to reopen denied, EEOC Request No. 05900795 (August 27,

1990).

In the case at hand, the record reveals that appellant was placed

into a permanent Park Ranger position following the execution of

the settlement agreement. Further, appellant was scheduled for law

enforcement training, but was unable to attend due to a medical problem.

The agency then discovered, after the settlement agreement was executed,

that appellant had misrepresented information on application forms from

1982 through 1993. It is noted that, while an investigation was pending

in the matter, appellant was reassigned to a Park Ranger position which

did not involve law enforcement duties in early 1995. Therefore, based

upon a review of the record, we find that the agency did not breach the

October 1993 settlement agreement.

CONCLUSION

Based upon a review of the record herein, it is the decision of

the Commission to AFFIRM the agency's dismissal of allegation 2.

The Commission further finds that the agency did not breach the October

1993 settlement agreement.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

April 13, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1The AJ found that appellant was nonselected for a permanent Park Ranger

position because the agency impermissibly perceived him as having a

disability (alcoholism).

2Appellant's petition for review of the MSPB's decision is being addressed

in a separate decision. EEOC Petition No. 03990022.