[Redacted], Glayds K., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Nov 15, 2022

Appeal No. 2021001688 (E.E.O.C. Nov. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glayds K.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (National Institutes of Health), Agency. Appeal No. 2021001688 Hearing No. 531-2019-00302X Agency No. HHS-NIH-NIA-132-17 DECISION On January 6, 2021, via her attorney, Complainant filed an appeal after an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ) dismissed her hearing request after Complainant withdrew it, and ordered the Agency to issue a final decision on her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Agency issued its final decision on July 21, 2022. Since the appeal was pending when the FAD was issued, it is timely and accepted. BACKGROUND During the period at issue, Complainant worked as a Biologist, GS-0401-11, until being promoted to GS-12 in May 2013, at the Agency’s National Institute on Aging, Laboratory of Neurogenetics ("Lab") Neuromuscular Disease Research Section (“Section”) in Bethesda, Maryland. 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. 2 2021001688 On November 8, 2017, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against her based on her race/color (African American/Black), national origin (Guyanese), sex (female), disability (diagnosed with bipolar disorder in 2009, but re- diagnosed with Post Traumatic Stress Disorder (PTSD) in 2017, generalized anxiety disorder, benign mitral valve prolapse, and fibroid tumors requiring surgical removal in December 2013) and reprisal for prior protected EEO activity (initiating EEO counseling on July 27, 2017 on the instant EEO complaint) when: 1. On or about June 13, 2017, the Section Chief (“Section Chief”) (Ireland, Caucasian, male), who was her first line supervisor, did not conduct a scheduled meeting with her. 2. On or about June 15, 2017, Section Chief told her he changed her work assignment to making DNA plates, which is usually a role suitable for summer students not a biologist with a Ph.D. 3. After initiating EEO counseling on July 27, 2017, Agency management excluded her from a major project in her office/lab. 4. After initiating EEO counseling on July 27, 2017, Section Chief did not communicate with her on work assignments. 5. Agency management has not assigned her any projects in retaliation for filing the informal complaint. 6. Section Chief subjected her to a hostile work environment when: a. In 2009, he began subjecting her to inappropriate comments and unfair treatment. b. In 2009, he directed lab employees to work on a project, made inappropriate comments and then retracted them and joked he should stop before an EEO complaint is filed against him. c. In 2010, he told her the Agency would submit findings to a top-tier journal without her writing because it had to be perfect. d. In 2010, he purposely distracted her during an experiment and called her an “idiot”. e. In 2010, he required her to work on Christmas Day. f. In 2010, he repeatedly told her she wrote slow, and it took her forever to complete her Ph.D. program. g. After assigning her to lead a task force in March 2011, she had difficulties because he often excluded her from emails that communicated assigned tasks to the group. h. April 2011, he told her no one would put up with her mental illness if she left. 3 2021001688 i. On or about September 2011, after she told him she met with Career Services, he questioned why she would talk to anyone about her career and said she should stay and be comfortable where she is. j. On or about September 2011, on a research article he put her name last. k. In 2011, he told her that she would like the movie, “The Help”. l. In 2012, he joked to her about being from Africa. m. In 2013, he had an uncomfortable exchange with her about her ancestry. n. In 2013, he advised post-baccalaureate students to check her work. o. In 2013, he called her a “Diva,” causing colleagues to not approach her. p. In 2013 and ongoing, he precluded her from writing top-tier papers. q. In 2016 and ongoing, he was not present for her 1:1 standing meetings. r. In 2016 and ongoing, he warned her not to knock on his office door when closed. s. On May 5, 2017, he excluded her from a project after telling her he would include her. t. On or about May 12, 2017, he yelled at her in front of colleagues “No wonder nothing you do ever works” when she answered his questions on protocols. 7. In 2010, he told her the Agency would submit findings to a top-tier journal without her writing because it had to be perfect. 8. In 2013, Section Chief told a colleague Complainant had a heart problem and disclosed his dissatisfaction with managing her medical issues.2 9. In 2013 and 2017, Section Chief notified her multiple times to avoid working with a colleague because she had filed EEO complaints. This regards two incidents, and the second one was in April 2017.3 2 Complainant stated she had surgery to remove her fibroid tumors on December 18, 2013, which required a five-day hospital stay and six weeks of home recovery. Her colleague stated that earlier, he was concerned about Complainant’s well-being and expressed this to Section Chief, who advised she had a heart condition. Complainant believed that she never disclosed her heart condition to him or the Lab Chief and stated Section Chief said this in “an effort to protect himself of [sic.] disclosing my medical information”. 4 2021001688 10. Agency management subjected her to a hostile work environment when: a. In June 2015, Section Chief told her she had to accept a lower model computer than other employees in the laboratory. b. In 2015, Section Chief acknowledged she deserved a promotion but delayed processing the paperwork until 2017, during a hiring freeze. She was notified of the hiring freeze in February 2017, and that it was indefinite.4 c. On May 12, 2017, Section Chief yelled loudly and laughed at her, saying, "no wonder nothing you ever do works" within earshot of colleagues when she answered his question about a protocol. d. In late May or June 2017, Section Chief laughed with another colleague and a new trainee about the time he required her to work on Christmas day. e. Section Chief approached her and pressured her to disclose her political affiliation. f. In late December 2013 or 2014, Section Chief expressed to her his surprise that she wrote well.5 11. On February 23, 2018, Section Chief failed to promote her. 12. In February 2018, the Agency assigned her to report to the Lab Chief (“Lab Chief” British, Caucasian, male), who was her second line supervisor, due to her EEO complaint. 13. In March 2018, Lab Chief re-positioned her photograph under a different lab group in the breakroom, although she was still a member of the Section. 14. On March 14, 2018, Section Chief did not communicate with her about an ongoing collaborative project, and because Section Chief did not speak directly to RMO-2 about the project, Complainant was unable to work on it. 3 The Agency’s definition of this incident did not include the month in 2017. But Complainant stated she recalled two incidents, and the second was in April 2017. Report of Investigation (ROI), Ex. F-1 (Complainant’s affidavit) Bates No. 123. 4 The Agency’s definition of this incident did not include the month in 2017. But Complainant stated she was notified of the hiring freeze in February 2017, and that it was indefinite. ROI, Ex. F-1 (Complainant’s affidavit) Bates No. 127. 5 The Agency’s definition of this incident did not include dates. But the record reflects incident 10f occurred in December 2013 or early 2014. ROI, Ex. F-1 (Complainant affidavit) Bates No. 120 - 121, 129. 5 2021001688 15. On April 5, 2018, Section Chief communicated to staff she no longer reported to him. 16. In April 2018, the Agency removed her name from the Lab staff listing on the National Institute on Aging website, causing harm because her job entailed working with outside agencies, individuals, and groups. 17. On April 23, 2018, all employees and collaborators copied Lab Chief on every email sent to her, including on minor issues. The Agency investigated Complainant’s EEO complaint, as amended. After the AJ remanded the complaint to the Agency for a final decision, it dismissed claims 6 - 11 for failure to timely initiate EEO counseling. It found no discrimination on the remaining claims.6 On appeal, which was filed before the Final Agency Decision (FAD), Complainant argues that more than 15 months elapsed after the AJ’s 60-day time limit, and there was still no FAD. She submits documentation showing that on May 20, 2020, she asked the EEO office about the status of the FAD. Citing caselaw, Complainant argues this extraordinary tardiness warrants a default judgment against the Agency as a sanction. The Agency does not reply to Complainant’s appeal. ANALYSIS AND FINDINGS Complainant's request for default judgment as sanction for delayed FAD Our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Defense, EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional. The Commission stated in Royal v. Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission has the inherent power to protect its administrative process from abuse by either party and must ensure that agencies, as well as complainants, abide by its regulations.” Because of the time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. Here, the Agency failed to comply with the Commission's regulations and the AJ’s order. The Agency issued the FAD 1031 days after the AJ’s ordered deadline, which tracked the regulatory deadline in 29 C.F.R. § 1614.110(b). 6 In the alternative on claims 6 - 7 and 9 - 11, the Agency found no discrimination. On issue 8, it determined that management violated the Rehabilitation Act by disclosing Complainant’s medical information to an unauthorized person. 6 2021001688 Although the Agency failed to timely issue a final decision as required by our regulations, it did not act in in a manner to warrant the sanction of a default judgment against it. See e.g., Josefina L. v. Soc. Sec. Admin., 0120142023 (July 19, 2016) (AJ dismissed the complainant’s hearing request and ordered the agency to issue a FAD within 60-days. The agency’s 471 delay beyond this does not warrant sanctions as the complainant did not show she was prejudiced by the delay); Alaina P. v. Veterans Affairs, EEOC Appeal No. 2020003490 (Sept. 29, 2021) (following the complainant’s hearing request withdrawal, an AJ ordered the agency to issue a FAD. It delayed 387 days beyond the 60-day regulatory time limit to do so. No sanctions warranted); April T. v. Army, EEOC Appeal No. 2021002762 (Aug. 3, 2022) (after the complainant elected a FAD, the agency delayed 446 days beyond the 60-day regulatory time limit). While we do not impose a sanction in the present case, we find the Agency's failure to abide by the AJ’s order and our regulations reflects negatively on its support for the integrity of the EEO process. Beatrice B. v. Veterans Affairs, EEOC Appeal No. 2019001641 (Sept. 17, 2020) (no sanction where following a supplemental investigation, the Agency delayed issuing a final decision for over eight months). Accordingly, we will notify Federal Sector Programs (FSP), which monitors the federal agencies' EEO programs, of the Agency's failure to comply with the regulations on timely issuing FADs. Dismissal of claims for failure to timely initiate EEO counseling An aggrieved person must initiate EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). Complainant initiated EEO counseling on July 27, 2017. A hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice. National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 117 (2002). Unlike a claim based on discrete acts of discrimination, a hostile work environment claim is based on the cumulative effect of individual acts that may not themselves be actionable. Id. at 115. A hostile work environment claim will not be time barred if all acts constituting the claim are part of the same unlawful practice even if some component acts of hostile work environment fall outside the statutory time period so long as an act contributing to the claim falls within the filing period. Id. at 117. Discrete incidents which are part of the hostile work environment that occurred more than 45 calendar days prior to Complainant contacting an EEO counselor may only be challenged as part of the hostile work environment claim and are not independently actionable (meaning, for example, no instatement or back pay for an untimely demotion claim itself). EEOC Compliance Manual, Threshold Issues Sec. 2-IV- C, OLC Control No. EEOC-CVG-2000-2 (May 12, 2000). 7 2021001688 The Agency found that claims 10b and 11, Complainant’s denial of promotion claims were discrete acts. Claim 10b occurred in 2005. The Agency defined claim 11 as occurring on February 23, 2018, but in dismissing it for untimeliness mischaracterized it as occurring in February 2017. The Agency dismissed these claims because Complainant initiated EEO counseling on July 27, 2017, beyond the 45-day time limit. The Agency properly dismissed claim 10b as a discrete, independently actionable claim. But because claim 11 occurred on February 23, 2018, we reverse the Agency’s dismissal of it. The Agency dismissed claims 6, 7, 9, 10a, and 10c - 10f because no hostile work environment incidents occurred within the 45-day time limit of when she initiated EEO on July 27, 2017 (June 12, 2017 - July 27, 2017). We agree with the Agency’s reason for dismissing these incidents.7 On our finding that there were no incidents or acts contributing to Complainant’s hostile work environment within the 45-day filing period - June 12, 2017 - July 27, 2017, there are some incidents on which further explanation is warranted. Complainant alleged that incident 6p started in 2013, that incident 6r started in 2016, and they were ongoing, but did not identify any instances that occurred within the 45-day time limit. In Incident 10e, Complainant alleged Section Chief pressured her to disclose her political affiliation. Specifically, Complainant alleged that Section Chief asked her at an elevator, in a way he assumed he knew the answer, who she voted for President in the November 2016, and a colleague was present. Without more, we decline to find this occurred between June 12, 2017 and July 27, 2017.8 In Incident 10d, Complainant alleged Section Chief laughed with a colleague and a new trainee in late May or June 2017, about the time he required her to work on Christmas day in 2010. She did not indicate whether this incident occurred between June 12, 2017 to July 27, 2017. In any event, we find this incident cannot be part of a hostile work environment claim because it never occurred. 7 The Agency found that claim 8, Section Chief’s disclosure of medical information about her in 2013, was a discrete act, and dismissed it as untimely counseled. We need not determine if it was a discrete act because we affirm the Agency’s dismissal of this incident for the same reason it dismissed incidents 6, 7, 9, 10a, and 10c - 10f. 8 The EEO investigator asked Section Chief and the colleague if Section Chief pressured Complainant to disclose her “political affiliation.” Section Chief denied this, and the colleague stated she had no knowledge of it. 8 2021001688 Section Chief denied this incident occurred, which was bolstered by his persuasive explanation of why Complainant needed to work on Christmas day in 2010, and his statement that Complainant frequently joked with other staff members about this, the trainee stated she had no first-hand knowledge of the laughing, and the colleague, a unit chief in another lab, had no recollection of the laughing. ROI, Exhs. F-3 (Section Chief affidavit), Bates Nos. 208, 215; F-9 (trainee affidavit), Bates No. 446; F-10 (colleague affidavit), Bates No. 465. The Agency defined Incident 6q as Complainant alleging that in 2016 and ongoing that Section Chief did not conduct his one-on-one standing meetings with her. Complainant actually alleged in her complaint that these weekly standing meetings started in June 2016, and that they were regular and productive. ROI, Ex. A-1 (Complaint), Bates No. 52. But in her EEO investigative affidavit, Complainant stated that she and Section Chief had difficulty scheduling their one-on- one meetings because of events between them - travel, illness, deadlines, etc. so they settled on Wednesday mornings following her coworker’s weekly meeting with Section Chief. ROI, Ex. F- 1, Bates No. 97. This was around January 2017. ROI, Ex. F-3, at Attachment 5, Bates No. 244 (email that regular new meeting time was Wednesday mornings). Incident 1 concerns Section Chief not conducting their scheduled one-on-one standing meeting on Wednesday June 13, 2017. This falls within the 45-day time limit to initiate EEO counseling. Complainant stated that on June 13, 2017, Section Chief’s prior meeting went longer than normal, running into her meeting time, and suggested it ran past it. Specifically, Section Chief stated that his one-on-one meetings with staff generally took up to 15 minutes, and Complainant suggested it ran over at least 30. ROI, Exhs. F-1 & F-2 (Complainant affidavits), Bates Nos. 97, 155; F-3 (Section Chief affidavit), Bates No. 204. Complainant and Section Chief dispute whether Section Chief tried to schedule the meeting later in the day. In any event, Complainant’s explanation for the missed meeting - that Section Chief’s prior meeting ran over is not part of a hostile work environment claim because it is not harassing in nature, meaning not in any way abusive, intimidating, hostile, or offensive. Moreover, on June 19, 2017, Complainant emailed Section Chief suggesting they switch their one-on-one meetings to Wednesday afternoon as Wednesday mornings were particularly difficult since Section Chief had only a brief window between his prior meeting with the coworker and Journal Club. On the same day Section Chief suggested they meet after Journal Club, and Complainant agreed. This does not suggest that missed prior meetings were harassing in nature. Merits of incidents 1 - 5 and 11 - 17 To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 9 2021001688 Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., OLC Control No. EEOC-CVG-1994-5 (Mar. 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected basis - race/color, national origin, sex, disability and reprisal. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. To prevail on her disparate treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Incidents 1 and 2 The Agency analyzed these incidents as being harassment claims. It found Complainant did not show they were based on her protected bases, and even in combination with other alleged harassing incidents, fell short of being severe or pervasive. For the reasons in our prior discussion on Incident 1, we find it was not harassing in nature. Accepting Complainant’s reason for why Section Chief missed the June 13, 2017 one-on-one meeting - that his prior meeting ran long, we find this was not discriminatory and Complainant did not prove pretext. In Incident 2, Complainant alleged that around June 2017, Section Chief assigned her to do DNA plates, a role usually suitable for summer students, not a biologist with a Ph.D. A Ph.D. A Research Fellow who worked in the same section and reported to same supervisor as Complainant stated making DNA plates is not beneath a Ph.D. She stated her primary task in a project sometimes involves countless hours of making DNA plates that are absolutely necessary for any genetic and sequencing project, which is the main research theme in the Section. She added that making accurate DNA plates requires someone with a meticulous skill set. Section Chief, an M.D. Ph.D., stated this was an all-hands-on-deck assignment involving a potentially interesting finding on SCA3 gene data on patients with a neurodegenerative disease, and of the 96 DNA plates, he made about 40. 10 2021001688 We find Complainant mischaracterized Incident 2, that it was not harassing in nature, and she was assigned this work because it was a regular part of her duties, not discrimination. Incidents 3, 4, 5, and 14 In finding no discrimination on incidents 3, 4, 5 and 14, the Agency credited Section Chief’s statements, and on Incident 14 also credited Lab Chief’s statement. Incident 3 regards the SCA3 study. Section Chief denied excluding Complainant. Rather, he stated, Complainant only prepared one plate after which she was absent from her desk and bench space, and during this time did not attend weekly meetings on this project. This presumably included other parts of the SCA3 study. Regarding Incident 5, Section Chief listed what he characterized as multiple major projects assigned to Complainant since July 27, 2017. On Incident 4, Section Chief explained the various ways he made himself available to communicate about assignments with Complainant. On Incident 14, Complainant contended that Section Chief did not communicate with her and Lab Chief in March 2018, about an ongoing collaborative project to find the genetic cause of a form of Charcot-Marine-Tooth disease, and because of this was unable to work on it. She stated Section Chief referred her to Lab Chief, her then supervisor, who had no information on the project. According to EEO investigator’s report, Section Chief countered in a supplemental affidavit that he did not refuse to communicate with Complainant about any ongoing collaborative projects nor block her from any project. Rather, Complainant refused to communicate directly with him. Lab Chief stated that to his knowledge Complainant was not blocked from working on this project. We find by a preponderance of the evidence that Incidents 3, 4, 5 and 14 did not occur, and for this reason find no harassment or discrimination regarding them.9 Incidents 12, 13, 15 and 17 Incidents 12, 13 and 15 all concern Complainant’s contention that in February 2018, her direct supervisor was changed from Section Chief to Lab Chief in reprisal for her EEO complaint and investigation. But as found by the Agency, Complainant was moved at her own request. 9 Section Chief’s supplemental affidavit is not in the ROI. The Agency in its FAD, at footnote 131, wrote this supplemental affidavit was not in the ROI but was subsequently obtained and reviewed as part of the evidence of the complaint. The Agency did not submit the supplemental affidavit to the Commission. Nevertheless, we stand by our conclusion that Incident 14 did not occur holds. In addition to Lab Chief not being aware that Complainant was blocked from working on the Charcot-Marine-Tooth disease project, Complainant’s contention is not persuasive. We found she was not excluded from a prior project, as alleged, that Section Chief made himself available to Complainant for communication, contrary to her suggestion, and that despite her contention to the contrary, she continued to be assigned projects after July 27, 2017. 11 2021001688 A Civil Program Coordinator, who worked in Human Resources, Workforce Relations, stated that on January 30, 2018, Complainant contacted her and indicated that while her claims were being looked into, she wanted to be moved to a new supervisor, and National Institute of Aging management approved this. ROI, Ex. F-12, Bates No. 496. We find incidents 12, 13 and 15 occurred because Complainant requested to be moved, not discrimination. Complainant stated that Incident 17, which the Agency defined as all employees and collaborators copying Lab Chief on every email sent to her, including minor issues, concerned a series of emails from the Research Fellow to her from April 5, 2018 - April 20, 2018, that were copied to Lab Chief. Complainant stated the emails concerned a box of missing specimens which did not require Lab Chief’s involvement. The Research Fellow countered that Complainant was responsible for processing the biospecimens in question, the ones from two patients were missing, and this was not a minor issue because reporting missing samples to the Institutional Review Board is required. The Research Fellow stated the samples could be in any of eight to ten -80°C freezers, that the search could be very time consuming, she told Lab Chief she wanted Complainant’s help, and then emailed Complainant asking for her help and copied Lab Chief so he could acknowledge her time spent helping her. We find Incident 17 was not harassing in nature, and the Research Fellow copied Complainant so Lab Chief for the reason she stated, not discrimination. Incident 16 Complainant alleged that in March 2015, her name with contact information was in the Lab staff listing on the National Institute on Aging website, but noticed in early April 2017, that it was no longer there. She did not know who did this. Lab Chief stated he was not aware Complainant’s name was missing. The Agency found there was no information that Complainant’s name with contact information was dropped from the website Lab staff listing after she initiated EEO counseling, as opposed to before. Specifically, the Agency noted as evidence Complainant submitted a printout from July 17, 2018, of the Lab’s staff listing. Referring to the printout, the Agency referenced the fact that the names with contact information of Section Chief, and two others who reported to him - the head of the Genomics Technologies Group since 2008, a Ph.D. GS-13 Biologist (Caucasian, Female, United States) and a full-time since June 2016 Post-baccalaureate Intramural Research Training Award (IRTA) Fellow (Caucasian, female, Irish heritage) also were not listed in the above printout. The Agency found there was no evidence of reprisal. We agree. We add that on the website printout, Complainant’s name is listed as one of the authors of at least two “key papers”. Further, only 25 Lab staff names with contact information were on the printout. Even Lab Chief was not included. Organizational charts show the Lab has about 50 staff. ROI, Ex. G-1, Bates Nos. 615 - 621. So, the website staff listing included only about half of the Lab staff names with their contact information. Complainant has not shown she was targeted based on any of her protected groups regarding this matter. 12 2021001688 Incident 11 Complainant’s most recent promotion was in May 2013 to GS-12. She still worked for the Section Chief then. Complainant amended her complaint on April 6, 2018. The Agency accepted the amendment, which included Incident 11, defining it as on February 23, 2018, her supervisor failed to promote her despite her being qualified [per her recent evaluation]. ROI, Ex. C-4, Bates No. 87. But the EEO investigator inadvertently did not investigate this claim. ROI, investigative summary (claims in numerical order, number 11 skipped over), Bates No. 4. The EEO investigator did not ask anyone about Complainant not being promoted on February 23, 2018. Nevertheless, we find there is sufficient information in the record to decide the merits of Incident 11. In finding no discrimination on Incident 11, the Agency characterized it as occurring in February 2017, like the later part of Incident 10b - that by the time Section Chief put Complainant in for promotion in February 2017, there was an indefinite freeze. Section Chief stated that unbeknownst to him, a hiring freeze went into effect on January 20, 2017. This was implemented by the new Presidential administration. The EEO investigator asked the head of the Genomics Technologies Group about allegation 10b. She replied in her March 16, 2018 affidavit that she was aware of three promotions, including Complainant’s, that were currently delayed because of the hiring freeze. ROI, Ex. F-6, Bates No. 365. Complainant did not dispute there was a freeze and does not raise this matter on appeal. We find that Section Chief’s paperwork putting Complainant in for a promotion was not processed in February 2018, because of the freeze, not discrimination. CONCLUSION The FAD is AFFIRMED.10 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. 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. 10 We reversed the Agency’s dismissal of Incident 11. But we affirmed the Agency’s alternate ground that there was no discrimination on this matter. 13 2021001688 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. 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. 14 2021001688 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 sig Carlton M. Hadden, Director Office of Federal Operations November 15, 2022 Date