01980915
11-05-1998
Brenda Fite, )
Appellant, )
) Appeal No. 01980915
v. ) Agency No. 1H-333-1060-94
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On appellant, through her attorney requested that the Commission set
aside a settlement agreement entered into through the grievance process
and petitioned the Commission for enforcement of the Commission's Order
in Fite v. United States Postal Service, EEOC Appeal No. 01964712 (March
6, 1997).
A review of the record reveals that appellant filed two formal EEO
complaints on November 18, 1994, alleging that she had been subjected
to unlawful discrimination. The agency consolidated appellant's
complaints, and twice dismissed two allegations therein for untimely
EEO Counselor contact. On both occasions appellant appealed, and the
Commission remanded the allegations for a determination whether they
were timely under the continuing violation theory. Fite v. United
States Postal Service, EEOC Appeal No. 01952923 (November 27, 1995);
Fite v. United States Postal Service, EEOC Appeal No. 01964712 (March
6, 1997). Prior to receiving the Commission's second decision, appellant
and the agency settled the complaint on February 13, 1997, through use of
the negotiated grievance procedure. In the agreement, appellant agreed
"to withdraw ALL pending appeals, complaints, grievances, etc., in ALL
forums, including ... EEOC."
By letter to the Commission dated May 5, 1997, appellant, through her
attorney, asserted that the settlement agreement should be set aside
on the grounds that the agency acted in bad faith by entering into the
agreement without notifying appellant's attorney of record. Further,
appellant sought enforcement of the Commission's Order instructing
the agency to conduct a supplemental investigation for a determination
of whether the dismissed allegations were timely under the continuing
violation theory.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. Kleinman v.
USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS,
EEOC Request No. 05930106 (June 24, 1993). The record indicates that
the settlement agreement was reached through the agency's negotiated
grievance procedure. Therefore, the proper forum for appellant to
have raised her challenges to the settlement agreement was within the
negotiated grievance procedure itself. It is inappropriate to now
attempt to use the EEO procedure to collaterally attack a settlement
agreement reached through the agency's negotiated grievance procedure.
Accordingly, appellant's appeal is hereby DISMISSED.
Furthermore, since appellant withdrew all her EEO appeals and complaints
through the subject settlement agreement, specific enforcement of the
Commission's subsequent decision on her EEO complaint is not possible
as the matter has been withdrawn.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
November 5, 1998
______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations