0120093330
11-17-2009
Tonya Titsworth, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Tonya Titsworth,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093330
Agency No. 200P05932008104128
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 30, 2009, finding that it was in
compliance with the terms of the October 15, 2008 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
[The agency agrees] to offer priority consideration on a one time
basis for a position [complainant] identifies for which she meets basic
qualifications. Complainant will contact [one of two named officials]
in Human Resources when she identifies the position for which she would
like the priority consideration. [The Human Resources Officials] will
meet with complainant to assist her with the application for the position
prior to interviewing with the selecting official.
By letter to the agency dated June 2, 2009, complainant alleged that she
had been misled by the Mediator. Complainant believed that the agreement
allowed a one-time offer in which she could select a position and she
would be the only person interviewed for the position. Complainant
indicated that the Mediator provided her with this explanation. She later
learned that this was not the case and asserts she would never have
signed the agreement if she had not been misled.
In its June 30, 2009 FAD, the agency concluded that complainant failed to
contact the agency regarding the breach in a timely manner. The agency
noted that complainant contacted the EEO Counselor in October 2008,
concerned about the terms of the settlement agreement. However, the
agency asserted that complainant did not contact the agency about this
particular issue until June 2, 2009. As such, the agency determined that
complainant failed to contact the agency in writing within 30 days of
the alleged misleading statements by the Mediator. Further, the agency
noted that complainant failed to establish that she was deceived by the
agency during mediation. The Mediator indicated to the agency that he
properly explained the priority consideration to complainant. He said he
indicated that complainant's application would be the first one sent to
the selecting official, but there was no guarantee that complainant would
receive the job. Further, the agency indicated that complainant failed
to show that she signed the settlement agreement under duress. Therefore,
the agency determined not to set aside the settlement agreement.
Complainant appealed. Complainant indicated that she signed the agreement
based on the understanding that she had a one-time opportunity to pick
a job for which she met the minimum qualifications and that she would
be the only one interviewing for that job. Complainant stated that she
believed this based on the Mediator. Complainant indicated that the
day after she signed the agreement she contacted the EEO Counselor who
told her that she had 72 hours to revoke the settlement agreement and to
contact the Mediator. Complainant contacted the Mediator who explained
"priority consideration" to her. Some seven months later, complainant
indicated that the EEO Counselor said to her, "Oh! By the way, [w]hat
you think you signed you did not!" At that point, complainant contacted
the agency in writing about her concern.
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).
In the instant case, we find that complainant was not timely in contacting
the agency regarding her concern. Complainant stated that she contacted
the EEO Counselor the day after the settlement agreement because of her
concern about the priority consideration. Complainant indicated that the
counselor referred her to the Mediator, who she spoke with. However, she
stated that it was in June 2009 when she learned the correct meaning of
"priority consideration." This timing is rebutted, however by a survey
completed by complainant and dated November 17, 2008, in which she
stated, "I was deceived, I thought I that I had resolved my individual
concern only to find I'm back in the same position I was 5 years ago."
The record indicates that complainant had concerns over the settlement
agreement from the time she initially signed the document in October 2008.
However, she did not revoke the agreement which would have been permitted
for several days following the execution of the settlement agreement.
Despite her expressed belief in November 2008 that the Mediator and
EEO Counselor had deceived her, complainant did not raise the matter in
writing as a breach claim until June 2009, nearly seven months later.
Based on the totality of these circumstances, we find that complainant
has not shown that she contacted the agency in a timely manner regarding
the settlement agreement.
Accordingly, we decline to consider complainant's breach claim and the
agency's determination finding no breach of the settlement agreement 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
November 17, 2009
__________________
Date
2
***Appeal number TX***
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093330