01972672
02-26-1999
Deborah A. Kingwood, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Deborah A. Kingwood v. Department of Veterans Affairs
01972672
February 26, 1999
Deborah A. Kingwood, )
Appellant, )
)
v. ) Appeal No. 01972672
) Agency No. 310-95-1161
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision not to reinstate
her complaint of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. �1614.402(a); EEOC Order No. 960, as amended.
The record reflects that appellant pursued the EEO complaint process.
A copy of the complaint is not in the record. However, upon review of
various documents relating to appellant's settlement of this complaint,
it appears as if the complaint related to alleged discriminatory action
regarding training opportunities.
On October 2, 1995, appellant and the agency entered into a settlement
agreement. The agreement contained, in pertinent part, the following
provision:
3. Agency agrees to support the employee in attending a training seminar
in use of a Personal Computer program of the employee's choice to occur
within the next 12 months. The training seminar will be limited to the
Temple-Killeen [Texas] area, and selected as an evening course at local
college or as a 1 or 2 day seminar which could occur during the regular
work day. Cost of tuition and books/materials will be paid by the Agency.
Transportation costs will be the responsibility of the employee. If the
course should overlap regularly scheduled work hours, administrative
leave will be provided by the Agency.
By letter to the agency's EEO office, dated October 29, 1996, appellant
alleged breach of the settlement agreement. Appellant stated that the
first time she attempted to obtain training pursuant to Provision 3 of
the agreement, her request was denied on the grounds that there was
no one to relieve appellant of her duties in order to attend a free
training seminar. Appellant further alleged that on a second occasion,
she was denied a training request when she chose a college that would
have required her to take administrative leave in order to make it to
the class; but that she was informed that the agency would not pay for
the course and give her administrative leave. Finally, appellant stated
that she was informed that there was no funding available to finance
her training request.
By letter to an agency EEO Specialist, dated December 16, 1996, an agency
EEO Manager noted that appellant's first training request was for a
course held in Austin, Texas, which was not in the Temple-Killeen area
addressed in provision 3 of the settlement agreement. The agency EEO
Manager noted that appellant's second request was for a college course at
the Central Texas College in Killeen, Texas, in August 1996; and that the
course was scheduled for Monday and Wednesday, from 1:00 pm to 3:20 pm.
The EEO Manager stated that the terms of the settlement agreement provided
that appellant could select (1) an evening course at a local college or
(2) a 1 or 2 day seminar which could occur during the regular work day.
The EEO Manager stated that this training request was denied because
appellant selected a college course which required her to attend during
her regular duty hours (8:00 am to 4:45 pm Monday to Friday), rather
than during the evening.
On January 9, 1997, the agency issued a final decision finding no
settlement breach. Therein, the agency identified appellant's training
requests as the denial of "an opportunity to attend a free seminar and to
take an evening college course in Austin, Texas." The agency determined
that the training seminar that appellant had selected was held in Austin,
Texas and that the agency properly denied appellant's request to attend
this seminar because it was not in the Temple-Killeen area, as required
by the terms of the settlement agreement. The agency further stated
that because the training requested was not in the Temple-Killeen area,
"the issue of administrative leave is moot."
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement, the complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30
days of the date when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
Settlement agreements are contracts between the complainant and
the agency, and it is the intent of the parties as expressed in the
contract, and not some unexpressed intent, that controls the contract's
construction. Acree v. Department of the Navy, EEOC Request No. 05900784
(October 4, 1990).
As a threshold matter, the Commission notes that the agency has improperly
categorized the training request denials raised in appellant's allegation
of settlement breach. In its final decision, the agency determined that
appellant alleged that she had been "denied the opportunity to attend a
free training seminar and to take an evening college course in Austin,
Texas." The record, however, reflects that appellant alleged that she
had been denied the opportunity to attend a training seminar in Austin,
Texas, and that she had been denied the opportunity to take a college
course at Central Texas College in Killeen, Texas.
The Commission finds that provision 3 of the settlement agreement of
October 2, 1995, dictates an agency obligation to support appellant in
attending a Personal Computer training program within twelve months of
the date that the agreement went into effect; that the training seminar
was limited to the Temple-Killeen area; and selected as an evening course
at a local college or as a 1 or 2 day seminar. We find that the agency
was not under an obligation, pursuant to the terms of the settlement
agreement, to grant appellant's request for either training opportunity,
which she submitted. First, the training seminar appellant requested to
attend was in Austin and was, therefore, outside of the Temple-Killeen
area. Second, the college course at Central Texas College was not an
evening course or a 1 or 2 day seminar but met, instead during Monday
and Wednesday afternoons from 1:00 pm to 3:20 pm. Neither of the two
training opportunities was the type of training contemplated by the terms
of the settlement agreement. Accordingly, agency's decision finding so
settlement breach was proper and is AFFIRMED.
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. �1614.604(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:
Feb 26, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations