EEOC Appeal 2020001197

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jacinto Q.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.
Appeal No. 2020001197
Agency No. HHS-FDAORASW-081-19
DISMISSAL OF APPEAL
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's decision dated September 25, 2019, dismissing a formal
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.
BACKGROUND
During the period at issue, Complainant was employed by the Agency as a Consumer Safety
Officer at the Agency’s Dallas Field Office in Dallas, Texas.
On July 15, 2019, Complainant filed a formal complaint claiming that the Agency subjected him
to discrimination based on national origin (Hispanic) and in reprisal for prior protected EEO
activity when he discovered in 2019 that the Agency breached a provision of a settlement
agreement he and the Agency entered in March 2001.
The March 2001 settlement agreement stated, in pertinent part that:
Provision 3: The Agency will remove from [Complainant’s] Official
Personnel File (hereinafter referred to as “OPF”) the Official Standard
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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Form (SF-50) effecting his removal on November 25, 2000, and the
corresponding Official Standard Form (SF-52) dated November 25, 2000,
requesting his removal from Federal service. In addition, the Agency will
expunge from [Complainant’s] OPF the “Decision to Remove”
[Complainant] from Federal service dated, November 13, 2000.
Provision 4. The removal action will be substituted with a voluntary
resignation. [Complainant’s] resignation will be effective September 29,
2000, which is the date on which the reassignment became effective.
[Complainant] will be provided with a Standard Form-52, Request for
Personnel Action. [Complainant] must indicate the reasons for his
resignation on the SF-52 form. In order to continue receiving severance
pay, [Complainant] must also state that “Due to personal considerations, I
am unable to relocate to San Antonio, Texas.” The SF-52 will be dated
September 29, 2000. The information contained in the SF-52 form will be
used to prepare the Notification of Personnel Action or SF-50 to effectuate
the resignation. The SF-50 will be dated September 29, 2000.
[Complainant] will be provided with a copy of the revised SF-50 for
inspection, and will notify the Agency of any concerns within 15-days of
receipt of the form.
In its September 25, 2019 decision, the Agency dismissed Complainant’s complaint on two
procedural grounds. First, the Agency dismissed the complaint for untimely EEO Counselor
contact, pursuant to 29 C.F.R. § 1614.107(a)(2), finding that Complainant was notified in 2001
of the incorrect resignation code, but Complainant waited 18 years to initiate EEO Counselor
contact in 2019 to allege breach of the March 2001 settlement agreement. The Agency also
argued that Complainant’s complaint should be dismissed, pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim.
The instant appeal followed. On appeal, Complainant submits a copy of his SF-50 reflecting that
his resignation was effective September 29, 2000. The SF-50 also reflects, in the remarks
section, that Complainant resigned, “Due to personal considerations, I am unable to relocate to
San Antonio, Texas.” However, the SF-50 includes code “312” and identifies the nature of the
personnel action as “RESIGNATION ILTA” which Complainant argues is incorrect because it
indicates that he resigned In Lieu of Impending Action. Complainant further argues that the
personnel action should have been coded 317 – Voluntary Resignation as agreed to in the March
2001 settlement agreement.
Complainant also submits a copy of a December 27, 2016 decision issued by United States
District Court for the United States Circuit Court of Appeals – Federal Circuit (identified as Civil
Action No. 16-2120) affirming a final order of the Merit System Protection Board (“MSPB”)2
2 The MSPB final order was issued on March 24, 2016 and is docketed DA-0752-01-0157-C-1.

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dismissing Complainant’s appeal as untimely regarding his claim that the Agency breached the
same terms at issue in the instant settlement agreement.
ANALYSIS AND FINDINGS
As a preliminary matter, we note that the Agency improperly analyzed the instant complaint in
terms of whether Complainant timely initiated EEO Counselor contact and whether the instant
complaint stated a claim using the dismissal bases detailed in 29 C.F.R. § 1614.107(a).
However, the instant matter is a breach claim and should only be analyzed under the procedures
detailed in 29 C.F.R. § 1614.504(a).
We further note that regulation 29 C.F.R. § 1614.504(a) requires a complainant who believes an
agency has failed to comply with the terms of a settlement agreement to notify the agency's EEO
director of the alleged noncompliance within 30 days of the date complainant knew or should
have known of the breach. Here, the record reflects, as explained in the Federal Circuit
December 27, 2016 decision, that Complainant received the SF-50 with the incorrect code in
2001 and therefore had notice of the error, but he did not allege breach of the March 2001
settlement agreement until October 2014.
We further find that Complainant’s clam of breach is not properly before the Commission on
appeal. Our review of the Federal Circuit’s December 27, 2016 decision, civil action No. 16-
2120, reveals that it encompasses the same matters. The regulation found at 29 C.F.R.
§ 1614.409 provides that the filing of a civil action “shall terminate Commission processing of
the appeal.” Commission regulations mandate dismissal of the EEO complaint under these
circumstances so as to prevent a Complainant from simultaneously pursuing both administrative
and judicial remedies on the same matters, wasting resources, and creating the potential for
inconsistent or conflicting decisions, and in order to grant due deference to the authority of the
federal district court. See Stromgren v. Department of Veterans Affairs, EEOC Request No.
05891079 (May 7, 1990); Sandy v. Department of Justice, EEOC Appeal No. 01893513 (Oct.
19, 1989); Kotwitz v. U.S. Postal Service, EEOC Request No. 05880114 (Oct. 25, 1988).
Therefore, Complainant’s appeal in this matter is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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:

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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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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
May 5, 2020
Date