Raymond Kidd, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionMar 23, 2006
01a60292 (E.E.O.C. Mar. 23, 2006)

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