01984357
02-10-2000
Sherry Walker, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sherry Walker v. United States Postal Service
01984357
February 10, 2000
Sherry Walker, )
Complainant, )
)
v. ) Appeal No. 01984357
) Agency No. 4-H-330-0592-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DISMISSAL OF APPEAL
On May 13, 1998, complainant filed a timely appeal from an April 28,
1998 final agency decision (FAD) determining that the agency had not
breached an October 30, 1997 settlement agreement (SA, or the agreement)
with her.<1> Although the record is not entirely clear in this matter, we
find that, by its terms, the SA does not expressly preclude complainant
from filing an EEO complaint on the agency's alleged failure, for
prohibited reasons, to re-employ her as expressed in a July 23, 1997
letter by the agency to complainant's Congressperson.
It appears complainant, a Transitional Employee (TE) Clerk in the agency's
South Florida District, had initiated EEO counseling on August 14, 1997.
It further appears that complainant did not receive EEO counseling, but,
instead, entered into mediation, which mediation apparently led to the
SA at issue.
We find that, by its terms, the SA provided, in pertinent part, that
complainant "agrees that she has filed this complaint prematurely [and]
agrees to dismiss [the above docketed complaint] and refile at a time
if and when it becomes mature." Although we have reservations about the
legal validity of the SA, see duBois v. Social Security Administration,
EEOC Request No. 05950808 (September 26, 1997) (SA void for lack of
consideration and meeting of the minds), we need not reach that issue
in light of our present decision.
We find, as we have previously indicated, that the SA does not expressly
preclude complainant from pursuing her EEO allegations in the present
case. Therefore, even if were to set aside the SA and reopen this
matter, as complainant would have us do, there is no further relief we
could provide her. Accordingly, we find no justiciable issue before
us and find complainant's appeal to be moot. See Powell v. McCormack,
395 U.S. 486, 496 (1969). We find no argument by complainant, through
her representative, to persuade us to reach a contrary conclusion.
Complainant is free to continue to pursue her allegations, pertaining
to, apparently, the agency's changing her status from a TE to a
Casual Employee, and then declining to offer her a career position.
The parties are advised, however, that, subsequent to complainant's
receiving EEO counseling, and filing her complaint, if any, the agency
may dismiss complainant's allegations, provided the agency issues
a new final decision, with appeal rights to the Commission, setting
forth the legal reasons and factual bases for dismissal in accordance
with the Commission's regulations set forth at 64 Fed. Reg. 37,656
(1999) (hereinafter referred to and codified as 29 C.F.R. � 1614.107,
in pertinent parts).
Having reviewed the entire record, the arguments on appeal, including
those arguments not expressly addressed in this decision, and for the
foregoing reasons, it is the decision of the Commission to DISMISS
complainant's appeal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 10, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.