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

Equal Employment Opportunity Commission

May 7, 2015

05-2015-0179-0500 (E.E.O.C. May. 7, 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.

Request No. 0520150179

Appeal No. 0120142377

Agency No. HHSOS00172009

DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in EEOC Appeal No.
0120142377 (December 11, 2014). EEOC Regulations provide that the Commission may, in
its discretion, grant a request to reconsider any previous Commission decision where the
requesting party demonstrates 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. See

29 C.F.R. § 1614.405(c).
In our prior decision, we found that the Agency was in breach of the April 1, 2009 settlement
agreement into which the parties entered to resolve an equal employment opportunity (EEO)
complaint. In its request, the Agency argues that Complainant’s appeal of its final
determination regarding her breach was untimely. Our prior decision relied upon that final
determination and failed to address the merits of the timeliness argument which the Agency
had clearly raised on appeal. However, we find that our prior decision correctly concluded
that the Agency had breached the agreement, and because we have an inherent interest in
enforcing valid settlement agreements, we now DENY the Agency’s request for
reconsideration.

In addition to opposing the Agency’s request for reconsideration, Complainant requested that
we dismiss it. Both of those issues are now moot. However, we shall address Complainant’s
“Cross Request for Reconsideration” wherein she asks us to clarify that “return to status quo
when the April 1, 2009 Settlement Agreement is rescinded means return to the position
Complainant encumbered at that time.” Our regulation is clear:

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When the Commission determines that an agency is not in compliance and the
noncompliance is not attributable to acts or conduct of the complainant, it may
order such compliance or it may order that the complaint be reinstated for
further processing from the point processing ceased.

29 C.F.R. § 1614.504(c).1

Thus, to the extent that Complainant is now arguing she is entitled
to be returned to the position she held before or at the time the agreement was executed or any
other “interim relief” under 29 C.F.R. § 1614.502, her arguments are not well taken. On
remand, Complainant has two choices: she can request that the Agency specifically implement
the terms of the agreement or she can request that the EEO complaint that gave rise to the
settlement agreement be reinstated from the point where its processing ceased.
After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120142377 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request. The Agency shall comply with the Order as set forth below.

ORDER
Within thirty (30) calendar days of the date this decision becomes final, the Agency is ordered
to notify Complainant of her option to obtain specific performance of the settlement agreement
or to have her EEO complaint reinstated. Complainant shall be notified that in order to
reinstate the EEO complaint, she must return any monetary benefits received pursuant to the
agreement. The Agency shall determine its obligations due to Complainant, or return of
consideration or benefits due from Complainant and shall include such information in the
notice to Complainant. The Agency shall also notify Complainant that she has fifteen (15)
calendar days from the date of her receipt of the Agency’s notice within which to notify the
Agency either that she wishes to reinstate the EEO complaint or that she wishes to allow the
terms of the agreement to stand.
If Complainant elects specific performance, the Agency shall notify Complainant that the terms
of the settlement agreement shall stand and the Agency will abide by all of the terms of the
Agreement.
If Complainant elects to reinstate her EEO complaint, the Agency shall resume processing the
EEO complaint from the point processing ceased and in accordance with 29 C.F.R.
§ 1614.108 et seq. The Agency shall issue to Complainant a copy of the investigative file and
also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar
days of the date this decision becomes final, unless the matter is otherwise resolved prior to

1 In our prior decision, we gave Complainant the choice between having the terms of the
settlement agreement specifically implemented or having her complaint reinstated for further
processing from the point processing ceased.
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that time. If Complainant requests a final decision without a hearing, the Agency shall issue a
final decision within sixty (60) days of receipt of Complainant’s request.
IMPLEMENTATION OF THE COMMISSION’S DECISION

(K0610)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See

29 C.F.R.
§ 1614.409.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. 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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
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denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court 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:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
May 7, 2015