0120093666
12-18-2009
Sheila D. Trovato, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sheila D. Trovato,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093666
Agency No. 200I-0673-2005103119
DECISION
Complainant filed a timely appeal with this Commission from a letter of
determination by the agency dated August 5, 2009, finding that it was in
compliance with the terms of a May 21, 2007 settlement agreement. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The May 21, 2007 settlement agreement provided, in pertinent part, that:
6. Agency shall accept Complainant's resignation and shall remove all
disciplinary information from Complainant's personnel file, including
any and all references to the reprimand action as well as provide a
letter of reference for employment purposes that confirm the following:
[Complainant's] dates of employment; [Complainant's] final rate of pay;
and that [Complainant] was fully successful in the performance of her
assigned duties. No further information shall be provided to inquiries
from potential employees.1
By letter to the agency dated June 1, 2009, complainant alleged breach
of provision 6. Specifically, complainant alleged that pursuant to this
provision, she was supposed to receive a letter of reference indicating
she was fully successful in the performance of her assigned duties and
eligible for rehire, upon her resignation on May 27, 2007. Complainant
further stated "after numerous phone calls and seventeen months later,
I received this document on Dec[ember] 11, 2008 [emphasis added]."
Complainant also alleged that the agency breached the agreement when
she was conditionally hired by the Federal Bureau of Investigation
(FBI), pending a background investigation. Complainant asserted that
upon completion of the investigation, she was denied the position
due to derogatory comments made by employees at the agency during the
background investigation. In support of her assertions, complainant
submits a two-paged redacted copy of the interview conducted by the FBI
investigator with a former coworker of complainant.
In its August 5, 2009 letter of determination, the agency found no
breach of provision 6. First, the agency found that complainant's claim
of breach concerning the delay of letter of reference for employment
purposes was untimely filed and, therefore, should not be considered.
Regarding the breach claim relating to the denial of an FBI position
due to the derogatory comments made about her, the agency asserted that
the record evidence establishes that a coworker was interviewed by the
background investigator, who required that he swear to tell the truth
under oath and respond to specific questions. The coworker stated that
he answered the questions to best of his ability. The agency asserts
that the coworker was not providing a job reference during this process,
nor was he authorized to do so. Rather, he was answering questions during
a background investigation for complainant's security clearance for the
FBI position. Therefore, the agency concluded that without evidence
that a representative of the agency provided a negative job reference,
complainant did not establish a breach of the terms of the 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.
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 O 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).
Breach claim regarding delay of letter of reference
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.
Complainant's allegation of breach is untimely, as complainant did not
follow proper procedures in timely alleging breach on this matter. In
accordance with EEOC Regulation, complainant was obligated to contact the
agency's EEO Director in writing of the alleged noncompliance within 30
days. The record indicates, however, that complainant, despite numerous
requests for the letter, waited approximately eighteen months before
filing her breach claim concerning the letter of reference. Moreover, by
the time she filed her breach claim, she had finally received the letter.
The Commission has held that individuals using the EEO process must
act with due diligence in the pursuit of their claims or the doctrine
of laches may be applied. See Odel v. Department of Health and Human
Services, EEOC Request No. 05901130 (December 27, 1990). "The doctrine
of laches is an equitable remedy under which an individual's failure
to diligently pursue their legal remedies can bar their claims." Id.
Regarding complainant's breach allegations concerning the delay of the
reference letter, we find that the doctrine of laches is applicable here.
Here, complainant waited approximately eighteen months to challenge the
settlement agreement. We therefore, determine that complainant failed
to diligently pursue her breach claims and they are barred as untimely
raised.
Breach claim regarding derogatory comments
Complainant alleged that the agency breached provision 6 after she had
been conditionally hired by the FBI, pending a background investigation.
Complainant asserted that, upon completion of the investigation, she was
denied the position due to derogatory comments made about someone at the
agency. We find that after a careful review of the record, complainant
did not put forth sufficient evidence to show that the agency breached
provision 6. The portion of the background investigation submitted
by complainant in support of her claim shows that the investigator
interviewed a former coworker of complainant concerning complainant's
allegations of sexual misconduct on his part. During the course of the
questioning of the former coworker, it appears he made some negative
comments concerning complainant. Under these facts, we concur with
the agency that the coworker's answering questions during a background
investigation is not the same as a representative of the agency providing
an employment reference. See Holloman v. Department of the Army, EEOC
Appeal No. 01911399 (July 16, 1991). We acknowledge that it is possible
that someone else at the agency provided negative information about
complainant during the background investigation. However, even if we
were to accept that the background investigation was the equivalent of a
job reference, there is simply no evidence to indicate that an official
representative of the agency provided negative information during this
process.
Accordingly, for the reasons set forth above, the agency's letter of
determination finding no breach of provision 6 is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 18, 2009
__________________
Date
1 Although in the last sentence of this provision, the settlement
agreement identifies "potential employees," given the context of this
provision, it appears that this was an inadvertent reference, instead of
"potential employers." Moreover, the settlement agreement also provides
for the agency to pay complainant a lump sum payment of $25,000.00.
This matter is not at issue in the instant appeal.
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0120093666
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093666