Brenda Fite, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 5, 1998
01980915 (E.E.O.C. Nov. 5, 1998)

01980915

11-05-1998

Brenda Fite, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


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