01a60292
03-23-2006
Raymond Kidd, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Raymond Kidd v. United States Postal Service
01A60292
3-23-06
.
Raymond Kidd,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A60292
Agency No. 4-H-350-0095-05
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 6, 2005, finding that
it was in compliance with the terms of the June 17, 2005 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 (SA) provided, in pertinent part, that:
(1) [The Postmaster] will treat Mr. Kidd with dignity and respect as
all other employees under his supervision.
(2) [The Postmaster] will make Mr. Kidd aware of any problems with his
job before he writes him up.
(3) Mr. Kidd agrees to put up his personal items - including his bags -
in the locker room before he clocks in for work.
By letter to the agency dated June 22, 2005, complainant alleged that
the agency was in breach of the SA, and requested that the agency
specifically implement its terms. Specifically, complainant alleged
that the Postmaster at the Decatur, Alabama Post Office (�facility�)
breached the SA, when on June 22, 2005, he called the postal inspector to
investigate about second and third class mail not being held or delivered
to a postal customer. Complainant alleged that rather than speaking to
him about the incident, the Postmaster called the postal inspector to
handle the situation. The record demonstrates that complainant had been
asked to hold the postal customers's first and second class mail for a
limited duration, while not delivering or holding her third or fourth
class mail. A letter from the postal customer indicates that complainant
was performing the service the customer had requested, and stated that it
appeared that the Postmaster had a personal vendetta against complainant.
In its September 6, 2005 FAD, the agency noted that the Postmaster signed
an affidavit regarding the situation with complainant. The Postmaster
stated when the postal customer at issue came to the Post Office to get
her mail, there was only one (1) piece of first class mail being held and
no second or third class mail. The Postmaster stated that he questioned
complainant about the customer's mail, and complainant stated that he
disposed of the third class mail as he thought the customer requested.
Complainant informed the Postmaster that he knew the proper procedures
for handling all classes of mail. The Postmaster stated that complainant
informed him and the postal inspector that he had received training
on proper handling of mails. The Postmaster then notified the Postal
Inspection Service on June 21, 2005 that he had reason to believe
complainant discarded deliverable mail. The FAD noted that on August
3, 2005, complainant received a 14-Day Suspension for Unsatisfactory
Work Performance. The FAD made no explicit finding as to whether the
SA was breached, but stated that �all involved parties will adhere to
the EEO Settlement Agreement signed on June 17, 2005.�
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 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 the record indicates that on or about June
16, 2005, the facility's 204-B Supervisor and the Postmaster spoke to
complainant about the disposal of the postal customer's third class mail
prior to reporting the incident to the postal inspector. The record
indicates that complainant had at least one training course in 2002
concerning the procedures for handling all classes of mail, and the
Postmaster stated he questioned complainant about his handling of the
customer's mail at issue and whether he knew the proper procedures for
handling all classes of mail on hold. The Postmaster stated that he asked
complainant why he would discard standard mail which the postal customer
had placed on hold. See Postmaster's EEO Investigative Affidavit.
Accordingly, we conclude that the Postmaster made complainant aware of
his concerns regarding the possible discarding of the postal customer's
deliverable mail prior to contacting the Postal Inspection Service
on June 21, 2005, as provided in provision (2) of the SA. Therefore,
the Commission affirms the FAD's implicit finding of no breach.
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
____3-23-06______________
Date