0120112235
12-21-2011
Amanda L. Tarnowski, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Amanda L. Tarnowski,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120112235
Agency No. 1J-483-0066-10
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency determination dated February 11, 2011, finding that it was in
compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Mail Handler at the Agency’s George W. Young Processing & Distribution
Center in Detroit, Michigan. Believing that the Agency subjected her to
unlawful discrimination, Complainant contacted an Agency EEO Counselor
to initiate the EEO complaint process. On August 17, 2010, Complainant
and the Agency entered into a settlement agreement to resolve the matter.
The settlement agreement provided, in pertinent part, that:
(1) Mr. [W.] stated that a meeting will be held between [FLS] or [TH]
(Local 307); the HR Department Manager ([LW/TZ]); the Counselee and her
representative, [VS], within 21 days.
(2) While the Investigation is pending and prior to Mr. [W]'s formal
decision, Counselee will continue her current assignment on Tour 3 with
Wednesday/Thursday as her off days.
(3) Mr. [W] will make a determination as to whether Counselee's job
was abolished incorrectly.
By email to the Agency dated December 6, 2010, Complainant alleged that
the Agency was in breach of the settlement agreement insofar as a meeting
was not held within 21 days. Complainant’s request on appeal is to
be compensated for her “out of schedule pay” from June 23, 2010 –
March 8, 2011.
In its February 11, 2011 determination, the Agency concluded that
there was no breach because the only reason the meeting did not occur
“within 21 days” was because the union official experienced a death
in the family and was unavailable. Instead, a phone call between Mr. W
and TH took place on September 10, 2010. The Agency further found that
Complainant remained working Tour 3 until the investigation was completed
and the determination as to whether her job was abolished incorrectly
was made.
ANALYSIS
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. Dep’t of Def., 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. Dep’t 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. U.S. Postal Serv.,
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).
Failure to perform in accordance with deadlines specified in a contract
does not necessarily constitute a breach of contract. Time is not
ordinarily of the essence in a contract unless made so by express
stipulation or unless there is something connected with the purpose
of the contract and the circumstances surrounding it which makes it
apparent that the contracting parties intended that the contract must be
performed at or within the time named. Garzino v. Department of the Army,
EEOC Appeal No. 0120072847 (Sept. 27, 2007). Failure to satisfy a time
frame specified in a settlement agreement does not prevent a finding
of substantial compliance, especially when all required actions were
subsequently completed, and the Complainant has not shown that she was
harmed by the delay. Lazarte v. Department of the Interior, EEOC Appeal
No. 01954274 (April 25, 1996).
In the instant case, we decline to find breach of the agreement.
A death in the family precluded the meeting between the union official
who represents Mail Handlers and the other parties from taking place
“within 21 days.” However, management allowed Complainant to submit
documentation in support of her position and to remain where she wanted
to be until the union official returned.
Management described the documentation Complainant submitted as
“inaccurate.” When the union official returned, she (the union
official) provided management “with the true facts,” and it was
determined that the bid position was correctly abolished. The terms of
the settlement agreement did not provide for Complainant to remain in
the bid position if it was determined that it was properly abolished.
The relief Complainant is requesting suggests that her real complaint
concerns the adverse determination she received concerning the abolishment
of her bid.
CONCLUSION
Based on the circumstances herein and because Complainant was permitted
to give her side of the story “within 21 days,” we find no breach
of the August 17, 2010 settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 21, 2011
__________________
Date
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0120112235
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112235