Tonya Titsworth, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 17, 2009
0120093330 (E.E.O.C. Nov. 17, 2009)

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