[Redacted], Debra R., Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jul 21, 2022

Appeal No. 2022001905 (E.E.O.C. Jul. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adan N.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2021003220 Hearing No. 490-2015-00165X Agency No. HHS-FDAORASW-069-14 DECISION On May 12, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 12, 2021, final order concerning his equal employment opportunity (EEO) complaint alleging 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Chemist, GS-1320- 12, at the Agency’s Arkansas Regional Laboratory in Jefferson, Arkansas. Complainant joined the Agency on April 21, 2013, and was subject to a one-year probationary period. On August 13, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Indian), age (over 40), and reprisal for prior protected EEO activity under Title VII and the ADEA. 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. 2021003220 2 He subsequently amended his complaint and ultimately raised a total of 24 claims, including several discrete acts of discrimination when management: ordered him to take a proficiency test (claim 1); denied his transfer request (claim 8); denied him training (claims 16 and 18); denied him the opportunity to apply for a grant (claim 20); and removed him from federal service during his probationary period (claim 24). The amended complaint also alleged several incidents of harassment, such as when: management interfered with his work performance (claims 2 and 5); humiliated him (claims 9 and 21); ignored his input (claim 10); and increased his workload (claims 4, 17, and 22). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ assigned to the matter ultimately held a hearing into the merits of the complaint on August 18-19, 2020. A total of seven witnesses testified during the hearing, including Complainant. Complainant, in relevant part, provided detail testimony regarding his qualifications and prior work experience. He then proceeded to detail the underlying allegations in each claim. When Complainant’s attorney and the AJ asked Complainant why he believed the alleged incidents were discriminatory in nature, Complainant repeatedly replied: “I have an accent. I’m old age. I’m Indian.” See, e.g., Complainant’s Hearing Transcript, Day 1, at 110, 114, 135, 138, 154, 160-61, 169, and 196. The named responsible management officials, however, all denied discriminating against Complainant. Following the hearing, the AJ issued a bench decision on September 2, 2020, which found that Complainant failed to prove his allegations of discrimination. In reaching this conclusion, the AJ summarized Complainant’s testimony in each claim and ultimately concluded that the preponderant evidence was not in Complainant’s favor. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. On appeal, Complainant provides a detailed brief for the Commission’s review, containing numerous emails and records intermixed with his contentions. He alleges, in particular, that the AJ erred on the following seven points: 1. Violating the Agency’s Memorandum from Commissioner of Food and Drugs Administration; 2. Making False Final Ruling Statements without listening the real facts; 3. Allowing a liar Agency Director to continue the Hearing Process; 4. Obstruction of hearing during the cross examination of my counsel; 5. Misrepresentation of termination letter by the Honorable Administrative Judge to cover up the true facts; 6. Accepting the fraudulent documents from the Agency; 2021003220 3 7. Denied of ROI documents (Foundation and Official); and 8. Funny remarks about the integrity of my chemistry work. The Agency did not file any timely contentions in opposition to Complainant’s appeal.2 Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), Chap. 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. In reaching this conclusion, we considered each of the points that Complainant raised on appeal; however, we nevertheless remain unpersuaded given the totality of the record. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2 On August 19, 2021, the Agency filed a brief in opposition to Complainant’s appeal, which missed the extended deadline provided by the Commission. After Complainant opposed the Agency’s untimely submission, the Agency acknowledged the late filing and requested that the Commission consider its August 19, 2021 brief, as the Agency’s counsel was “under many competing deadlines.” As we find the Agency’s explanation to be insufficient to establish good cause, we decline to consider the Agency’s opposition brief. 2021003220 4 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021003220 5 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 July 18, 2022 Date