Complainant,v.Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Sep 28, 2015

01-2013-1293-0500 (E.E.O.C. Sep. 28, 2015)

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
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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
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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