01a53092
09-21-2005
Athena M. Patterson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Athena M. Patterson v. United States Postal Service
01A53092
September 21, 2005
.
Athena M. Patterson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53092
Agency No. 4F-956-0029-04
DECISION
Complainant filed a timely appeal with this Commission from the final
agency's decision (FAD) dated February 28, 2005. The FAD dismissed the
breach claim as untimely filed, pursuant to 29 C.F.R. � 1614.504(a),
and, in the alternative, found that the agency was in compliance with
the terms of the settlement agreement.
On January 13, 2004, complainant and the agency entered into a settlement
agreement that provided that the agency would take the following action:
1. The agency agrees to provide [complainant] with a flexible start
time with staggered hours based on the volume of mail.
Moreover, the agreement provided that if complainant believed that the
agency failed to comply with the settlement agreement, she must notify
the EEO office in writing within 30 days of the alleged non-compliance.
The record reflects that on December 16, 2004, complainant contacted
the agency, claiming breach. Complainant requested a form wherein she
could raise a breach claim.
The agency responded by letter dated December 17, 2004, that it had
no official form for alleging breach; but that a complainant needs
to contact an agency EEO office within thirty days of a breach claim.
Thereafter, by letter to the agency dated January 12, 2005, complainant
provided clarification of the breach claim. Specifically, complainant
claimed that by letter dated November 8, 2004, an agency Postmaster
informed complainant that she (complainant), was not to start early,
which complainant determined was in violation of provision (1) of the
subject settlement agreement.
Complainant noted further that immediately following the execution of
the settlement agreement, an agency Postmaster allowed an agency Clerk to
stagger her start time beyond �the already excessively late start time;�
and that the Clerk's start time prevented complainant from coming in
early to case up large mail volumes. Complainant stated that she waited
for the Clerk to stop reporting to work late, and that when daylight
savings time �cost me an hour of daylight I implemented the agreement.�
On February 28, 2005, the agency issued a decision, finding no breach.
The agency determined that complainant claimed that agency management
did not allow complainant to have flexible start times ; that an agency
postmaster informed complainant that the settlement agreement was
no longer �applicable;� and that complainant would receive �punitive
punishment� if she did not do as the postmaster ordered.
The agency also determined that complainant raised two separate breach
claims. Regarding the first breach claim (disallowance of flexible start
times), the agency found that complainant herself acknowledged that this
breach occurred several days after the execution of the agreement in
January 2004. The agency determined that in regard to a second breach
claim (an agency official informed complainant that the agreement was
�no longer applicable�), the agency determined that complainant was so
informed on November 8, 2004. The agency found no breach, and determined
further that complainant's breach claims were untimely raised.
On appeal, complainant stated that �[A]lthough I missed the 30-day time
frame by 8 days, I feel this matter is still a breach of contract.�
The record shows that complainant knew or should have know of alleged
non-compliance at the latest, on November 8, 2004, when she was informed
by an agency Postmaster that complainant was not to start early,
purportedly in violation of provision (1). However, complainant did not
raise a breach claim until December 16, 2004. The subject settlement
agreement expressly provided that any alleged breach must be reported to
the agency in writing within 30 days of the date of the alleged breach,
in accordance with 29 C.F.R. � 1614.504(a).
On appeal, complainant does not provide adequate justification to invoke
waiver or equitable tolling. Accordingly, we AFFIRM the agency's
determination that complainant's breach claim was untimely raised.
Because we find the breach claim untimely raised, we find it unnecessary
to address the issue of whether the agency breached the instant agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 21, 2005
__________________
Date