By Meghan Droste, December 18, 2018

This month’s earworm comes to you from The Sound of Music. Although not a seasonally relevant film, it has been stuck in my head for weeks. That’s why when I read this month’s recent case, I thought of the song “Maria.” In the song, the nuns discuss how to pin down Maria, whose head is always in the clouds. The EEOC’s decision in Shaniqua W. v. U.S. Postal Service, EEOC App. No. 0120182033 (Sept. 11, 2018) left me thinking about what parties can do to pin down a way to specifically perform the terms of an agreement when one party does the very thing they agreed not to do.

In Shaniqua W., the agency and the complainant reached an agreement that included a provision regarding the supervisor’s handling of emails from the complainant. The parties agreed that if the complainant sent an email to her supervisor, the supervisor would not forward the email to other coworkers.  Just over one month after the parties entered into the agreement, the complainant sent an email to her supervisor alerting him to an issue with two of her coworkers. The supervisor then forwarded the complainant’s email to the two coworkers at issue. When the complainant notified the agency of the breach of several provisions of the agreement, the agency determined that the supervisor did violate the agreement but found it had already cured the breach.  The agency stated in its Final Agency Decision that the supervisor “realize[d] the magnitude of the mistake and has assured that this type of error was a single occurrence and will not be repeated.”  The complainant was dissatisfied with the agency’s FAD and filed an appeal.

In its decision on the appeal, the Commission agreed with the finding that the supervisor had violated the agreement.  Unlike the agency, however, it was not persuaded that the supervisor’s assurances were sufficient to cure the breach.  The Commission noted that the breach occurred just over one month after the parties signed the agreement. It also found the supervisor’s lack of explanation for his breach to be concerning. Ultimately the Commission concluded that the supervisor’s “remorse [was] insufficient to demonstrate that the breach was cured.”  It ordered the agency to either reinstate the complaint or specifically perform the terms of the agreement.

When I reached the end of the Commission’s analysis, but before I continued on to the specific terms of the order, I wondered how the agency would be able to specifically perform the term that the supervisor had already breached, particularly when the supervisor’s promise not to do it again was insufficient. It’s not quite as hard as keeping a wave on the sand, but it does seem a little difficult to pin down. The Commission addressed the question by ordering the agency to issue a written counseling to the supervisor, with a copy to the complainant, reminding him of his duty to abide by the agreement. We don’t have a way to know whether the complainant chose specific performance or reinstatement of the complaint, but hopefully either option addressed her concerns and didn’t leave her feeling like she was trying to catch a moonbeam in her hand. Droste@feltg.com

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