Sheila D. Trovato, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 18, 2009
0120093666 (E.E.O.C. Dec. 18, 2009)

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