Complainant,v.Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency.Download PDFEqual Employment Opportunity CommissionSep 28, 201501-2013-1293-0500 (E.E.O.C. Sep. 28, 2015) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency. Appeal No. 0120131293 Agency No. HHS-AHRQ-002-12 DISMISSAL OF APPEAL Complainant filed an appeal concerning her EEO complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. At the time of events giving rise to this complaint, Complainant worked as a Medical Officer in the Agency’s Agency for Healthcare Research and Quality in Rockville, Maryland. On April 26, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when, on February 3, 2012, Complainant received a low rating of 3.3 on her end of the year performance evaluation for 2011. The Agency investigated the complaint and provided Complainant a copy of the report of the investigation (ROI). On February 8, 2013, Complainant sent the Commission correspondence raising issues with the ROI and contending that the instant complaint relates to her prior EEO complaint. The Agency subsequently submitted a copy of an April 16, 2013 settlement agreement entered into by Complainant and the Agency resolving the earlier EEO complaint. In the agreement, the Agency agreed, in relevant part, to rescind Complainant’s 2011 performance evaluation, pay her $8,500.00 in attorney’s fees, and to continue to provide her a neutral employment reference. The agreement noted that Complainant had resigned from her Medical Officer position effective April 5, 2013. In exchange, the settlement agreement provided that Complainant “waives, forfeits, and forever discharges any and all rights she has to continue, or to enter into, any legal action against the Agency…including but not limited to the Equal Employment Opportunity Commission…” In addition, Complainant agreed to 0120131293 2 withdraw her EEO complaint, appeal, and other “actions or suits filed against [the Agency] or its components.” EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides that the Agency shall dismiss a complaint that is moot. To determine whether the issues raised in Complainant's complaint remain in dispute, it must be ascertained (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if the interim relief or events have completely irrevocably eradicated the effects of the alleged violations. See County v. Los Angeles v. Davis , 440 U.S. 625 (1979). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. Upon review, the Commission finds that there is no reasonable expectation that the alleged violation will recur in light of the settlement agreement. As the settlement agreement noted, Complainant has resigned from her position with the Agency effective April 5, 2013. Thus, there is no reasonable expectation that the alleged violation with recur as Complainant is no longer an employee of the Agency. The Commission further finds that these events have completely and irrevocably eradicated the effects of the alleged discrimination. The settlement agreement rescinded her 2011 performance evaluation and provided Complainant attorney’s fees. The Commission notes that Complainant did not request compensatory damages in her formal complaint; therefore, the effects of the alleged discrimination have been completely and irrevocably eradicated. In that regard, the Commission determines that matter is now moot. Accordingly, Complainant's February 8, 2013 appeal is hereby DISMISSED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail 0120131293 3 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 28, 2015 Date Copy with citationCopy as parenthetical citation