Wayne F. Peisch, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionAug 4, 2000
01984349 (E.E.O.C. Aug. 4, 2000)

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stated the same claim that was withdrawn in connection with an Informal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.