01984349
08-04-2000
Wayne F. Peisch, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Wayne F. Peisch v. Department of the Interior
01984349
August 4, 2000
.
Wayne F. Peisch,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01984349
Agency No. FNP-97-109
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated April 10, 1998, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of sex (male) and in reprisal for prior EEO activity when:
He was not selected for a permanent position of Utilities Systems Repair
Operator, WG-07, which was given to a female employee that he trained;
He was assigned to work alone and unsupervised on a Sunday, which is
above his position description, while the female employee was allowed
to work with another employee.
3. On July 21, 1997, management broke an Informal Resolution Agreement
by scheduling him to work weekends;
4. On July 21, 1997, management scheduled him to work 9 days strait
alone in the back country, which is above his position description; and
5. Due to management's actions (above), he was forced to resign on July
21, 1997.
In its decision, the agency dismissed complainant's claims (1), (2),
(4), and (5) as stating the same claim that is pending before, or
has been decided by, the agency, and for claim (3), determined that
it had complied with the terms of the Informal Resolution Agreement.
Specifically, the agency determined that the issue raised in claim (1)
stated the same claim that was withdrawn in connection with an Informal
Resolution Agreement signed on July 8, 1997, and that claims (2), (4), and
(5) were part of complainant's complaint FNP-97-126, which previously had
been accepted for investigation. For claim (3), the agency additionally
determined that complainant was scheduled to have weekend days off on
August 3, 16, and 17, 1997, and his weekend days off were therefore
rotated in accordance with the Informal Resolution Agreement.
On appeal, complainant asserts that he was never given the schedule
referenced by the agency in its decision, and that he was verbally
given a different schedule indicating that he �would be put back on
[his] old schedule working weekends.�
A review of the record shows that the Informal Resolution Agreement
between the parties provided, in pertinent part, that:
1. The complainant will remain in the USRO helper position (WG-5) and
will rotate weekends off starting August 1, 1997. Rotation of weekends
off will continue whenever feasible
The EEO Counselor's report for the complaint settled by the parties
Informal Resolution Agreement indicates that complainant claimed sex
discrimination when he was not selected for a WG-4742-07, Utilities
Systems Repair Operator position. We also note that complainant's instant
complaint asserts that, �I [f]eel the resolution was broken ... they left
me no recourse but to reinstate the complaint for further processing and
bringing a reprisal charge against them.� The record also shows that
by letter dated November 7, 1997, the agency accepted for processing
complainant's claims in agency number FNP-97-126. The letter stated
complainant's claims as alleging that he was �required to work above
[his] position description to accommodate a WG-7 female maintenance
worker (July 20, 1997),� and that he was �subjected to reprisal when
[he] resigned effective July 21, 1997, due to unsatisfactory working
conditions and the lack of problem resolutions by [his] supervisor.�
As an initial matter, concerning claim (1), the record clearly shows that
complainant is attempting to reinstate the same claim that was settled
as part of the parties' Informal Resolution Agreement because of his
belief that the agency breached the agreement. Although complainant
may appeal the agency's decision regarding the alleged breach and ask
that his complaint be reinstated if breach is found, a claim we address
below, any settlement agreement knowingly and voluntarily agreed to by
the parties, reached at any stage of the complaint process, is binding
on both parties. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.504).
Consequently, as complainant withdrew his non-selection complaint as
part of the Informal Resolution Agreement with the agency, we find that
he cannot now file a new complaint on the same matter. Therefore, claim
(1) was properly dismissed.
With regard to claims (2), (4) and (5), 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. � 1614.107(a)(1)) provides that the agency shall dismiss a
complaint that states the same claim that is pending before or has been
decided by the agency or Commission. Here, the record shows that on
November 7, 1997, in complaint number FNP-97-126, the agency accepted for
investigation complainant's claims concerning working above his position
description and the matters surrounding his resignation. Therefore,
as complainant's claims in the present case are based on the same set
of facts and circumstances as those in complaint number FNP-97-126,
they state the same claim, and claims (2), (4) and (5) were properly
dismissed.
As concerns the alleged breach of the Informal Resolution Agreement,
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 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 concur with the agency's determination that it
was in compliance with the Informal Resolution Agreement. Complainant
asserts that his supervisor verbally told him on July 21, 1997 that
(after a schedule of nine straight days working) he would go back to his
old schedule of working weekends. Complainant further contends that, as
a result of that alleged breach of the agreement, he resigned that day.
The Informal Resolution Agreement, however, stipulated that complainant
would rotate weekends off beginning August 1, 1997. Therefore, regardless
of complainant's scheduled work as of his July 21, 1997 resignation,
that resignation occurred prior to any possible implementation of the
provision in the Informal Resolution Agreement concerning complainant's
work schedule. Thus, as complainant resigned prior to the August 1,
1997 date the subject provision was to begin, we find that the agency
properly found that complainant had failed to show that the agency
breached the Informal Resolution Agreement.
Accordingly, the agency's decision dismissing claims (1), (2), (4), and
(5) of complainant's complaint is AFFIRMED. The agency's determination
that complainant failed to show that the agency breached the Informal
Resolution Agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 4, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.