David Bauer, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionSep 15, 2000
01985345 (E.E.O.C. Sep. 15, 2000)

01985345

09-15-2000

David Bauer, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


David Bauer v. Department of the Interior

01985345

September 15, 2000

.

David Bauer,

Complainant,

v.

Bruce Babbitt,

Secretary,

Department of the Interior,

Agency.

Appeal No. 01985345

Agency No. FNP-95-016

DECISION

On June 29, 1998, after failing to receive a response from the agency

regarding his claim of breach of the terms of a June 5, 1997 Informal

Resolution Agreement (settlement agreement), complainant filed an appeal

with this Commission for a compliance determination.<1>

The settlement agreement provided, in pertinent part, that:

[T]he National Park Service, Shenandoah National Park, is prepared to

offer the following:

Back date promotion from GS-07 to GS-09 from November 1994 to July 10,

1994 with full back pay and benefits.

Expunge all documents related to employee's performance appraisal for

1994 . . .

(3) Lateral Assignment; Transfer to mutually acceptable location without

loss of grade or promotion potential. This transfer will be initiated

within sixty (60) days of the signing of this document by all parties.

Shenandoah NP will bear costs of transfer to another location, except

real estate expenses.

Submit a Quality Step Increase to be retroactive October 01, 1996.

By letter to the agency dated September 2, 1997, complainant alleged

that the agency was in breach of the settlement agreement, and requested

that the agency specifically implement its terms and pay attorney's

fees and legal costs incurred since the agency's breach. Specifically,

complainant alleged that the agency failed to comply with provision 3

of the settlement agreement.

The agency issued a decision finding no breach on June 24, 1998.

Complainant apparently did not receive the agency's decision until he

had already filed his appeal with the Commission. In its decision, the

agency addressed all the terms of the settlement agreement and concluded

that it had substantially complied with its terms and that there was no

breach of the agreement or entitlement to attorney's fees. Specifically,

for provision (3), the decision stated that numerous efforts were made

to find complainant a mutually acceptable location for a transfer,

and that five opportunities for transfer were offered to complainant,

but that he refused each one. The agency further stated that there was

no evidence that the offers were not legitimate or that complainant had

any good grounds for refusing any of the transfer assignments.

In his original appeal documents complainant asserted that, as five

of seven relief terms had been performed by the agency, specific

performance of paragraphs three and four of the agreement was the

appropriate remedy. After receiving the agency's decision, however,

complainant filed additional comments stating that the agency had not

complied with five of seven terms in the agreement. Concerning provision

(3), complainant also asserts in his comments that, apart from an offer

to move to a different district in his present park (Shenandoah), the

agency's �so-called �offers'... were not offers of employment at all.�

Complainant asserts that the Assistant Superintendent merely inquired

about his interest in pursuing a transfer to other parks, and that none of

those discussions constituted offers. Finally, while stating a number of

reasons why he could not accept the transfers discussed with the agency,

complainant states that there were several parks with vacancies that he

was interested in, but when he applied he was not selected. We note that

in response to complainant's appeal, the agency submits a February 23,

1998 compliance report showing agency attempts to reassign complainant,

with five refused by complainant, four attempts at placement rejected

by the receiving park, and one attempt at placement still pending park

selection.

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 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).

As an initial matter, we decline to address complainant's later filed

assertions that additional terms of the agreement had been breached.

In his initial filing on appeal, complainant stated that the agency had

complied with five of seven terms for relief in the settlement agreement,

and that only provisions (3) and (4) of the agreement remained to be

performed. As complainant's initial filing admitted agency compliance

with the additional terms of the settlement in question, we do not

address those claims of breach.

With regard to complainant's breach claims concerning provisions (3)

and (4), however, we find that complainant has failed to show that

the agency breached the settlement agreement. Provision (3) of the

settlement agreement required that complainant be transferred to a

�mutually acceptable� location, and that the transfer be initiated within

sixty days. The record indicates that the agency discussed at least

five potential placements with complainant that it found acceptable

but that he refused for a variety of reasons, and that attempts were

also made to place complainant in other locations that were acceptable

to him. There is no evidence showing that the agency failed to initiate

its efforts within sixty days. Simply because the parties could not

find a mutually acceptable location for complainant's transfer does

not indicate a bad faith violation of the agreement by the agency.

If complainant wished to limit the locations for his transfer, those

locations should have been specifically identified in the agreement.

Moreover, contrary to complainant's apparent understanding of the

agreement, nowhere does it specify that the agency must make a formal

�offer� of transfer in its effort to find a mutually acceptable location

for complainant. As for provision (4), because the parties were unable

to find a mutually acceptable location for complainant's transfer in

provision (3), the agency cannot be found to have breached the agreement

by failing to bear the costs of the transfer. Complainant has therefore

not shown that the agency breached the settlement agreement.<2>

The agency's decision finding that there was no breach of the settlement

agreement is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0800)

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).

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

September 15, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2As complainant is not the prevailing party, we do not address his request

for award of attorney's fees and costs related to his breach claim.

See Dailey v. Smithsonian Institution, EEOC Request No. 05950225 (July

29, 1996).