Jonathan V.,1 Complainant,v.Don Wright, Acting Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Nov 30, 2017

0120152151 (E.E.O.C. Nov. 30, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jonathan V.,1
Complainant,

v.

Don Wright,
Acting Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.

Appeal No. 0120152151

Hearing Nos. 531-2014-00288X
531-2015-00208X

Agency No. HHS-FDACVM-073-11

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from two final Agency decisions (FAD-1 and FAD-2) 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following
reasons, the Commission AFFIRMS FAD-2. Additionally, FAD-1 issued by the Agency on
April 29, 2015 is VACATED.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the Agency’s Food and Drug Administration, Center for Veterinary Medicine,
Office of Management, in Rockville, Maryland. On October 25, 2010, Complainant applied for
a Social Science Analyst position announced under Vacancy Announcement No. HHS-FDA-04-

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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2011-0005 on the USAJOBS website. Complainant was deemed unqualified for the position and
was not forwarded for further consideration. On March 21, 2011, Complainant claimed that he
learned three female applicants had been interviewed and out of those three, a female applicant
with less experience in the required field had been selected (Selectee). Complainant contended
that he was the best qualified candidate based on his prior experience as an Organizational
Development Specialist, his over 10 years of experience in the field, and his veterans’ preference
status.

On July 18, 2011, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the bases of sex (male), disability, and age when:

1. On November 24, 2010, Complainant discovered he was not selected for the Social
Science Analyst (Organizational Development) position, GS-0101-12/13, Job
Announcement No. HHS-FDA-04-2011-0005; and

2. On March 21, 2011, Complainant discovered the Agency, in evaluating him and the
selectee for the Social Science Analyst (Organizational Development) position, GS-
0101-12/13, awarded the selectee more “points” for her alleged GS-11 experience
than he was awarded for his GS-11 and GS-12 experience.

On September 14, 2011, the Agency dismissed the formal complaint on the grounds that
Complainant raised the matter in an appeal to the Merit Systems Protection Board (MSPB). The
Agency found that, by appealing to the MSPB before his EEO complaint was filed, Complainant
elected that process. Complainant appealed and, in Complainant v. Dep’t of Health and Human
Servs., EEOC Appeal No. 0120120489 (Nov. 9, 2012), the Commission affirmed the Agency’s
dismissal.

Complainant filed a request for reconsideration, and the Commission denied his request finding
that the Commission’s decision did not involve a clearly erroneous interpretation of material fact
or law based on the record that was before the Commission at the time of its previous decision.
Complainant v. Dep’t of Health and Human Servs., EEOC Req. No. 0520130202 (July 19,
2013). However, the Commission, on its own motion, reconsidered its previous decision based
on additional documentation Complainant submitted with his request for reconsideration that
was not (and should have been) included in the record for the underlying appeal.

The documentation established that on February 11, 2011, Complainant filed an appeal with the
MSPB in which he alleged that he was not selected for a Social Science Analyst position based
on the Agency’s failure to give him proper veteran’s preference, age discrimination, sex
discrimination, position misclassification, and improper education requirements. On March 29,
2011, the MSPB Administrative Judge (AJ) issued an “Order and Notice of Hearing and
Prehearing Conference,” in which she stated that the hearing would only address the issue of
whether a 10-point rather than a 5-point preference should have been applied to Complainant’s
application for the position at issue, and “[t]he myriad other issues the appellant raises are either
not within the Board’s jurisdiction to address, or are not within the scope of a claim pursuant to
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the VEOA [Veterans Employment Opportunity Act]...” The Commission concluded that
Complainant raised his claims of sex and age discrimination before the MSPB, and the MSPB
found that it did not have jurisdiction over those claims. The Commission determined that the
case should be considered a “non-mixed” matter and remanded the sex and age claims for further
processing.

On February 2, 2012, the MSPB determined that the Agency did not award Complainant his full
10-point preference during the selection process for its Social Science Analyst position. As a
result, the MSPB ordered the Agency to reconstruct the selection process for the vacancy
announcement giving Complainant a full 10-point veterans’ preference. [Complainant] v. Dep’t
of Health and Human Servs., 117 M.S.P.R. 341 (Feb. 2, 2012). In accordance with that order,
the Agency reconstructed the selection process and granted Complainant the full 10-point
veterans’ preference. Agency selection officials ultimately determined that Complainant was not
qualified for the position.2

On October 9, 2013, prior to the Agency’s investigation of the claims remanded by the
Commission in EEOC Request No. 0520130202, Complainant amended his remanded complaint
to allege that the Agency subjected him to reprisal for prior protected EEO activity when:

3. On September 2, 2013, Complainant discovered that the Management Services
Officer and the Human Resources Specialist (HRS) changed his “Minimally
Qualified” qualification status that he held on or about November 24, 2010 to
“Unqualified” in February 2012 for the Social Science Analyst position he applied for
in October 2010.

The Agency investigated the reprisal claim (claim (3)) separately and issued Complainant a
report of investigation (ROI-1) with a notice of his right to request a hearing before a
Commission Administrative Judge (AJ-1). Complainant timely requested a hearing, but
subsequently withdrew his hearing request on December 16, 2014. Accordingly, AJ-1 remanded
the matter (claim (3)) to the Agency for a final Agency decision.

On November 28, 2014, the Agency concluded its investigation of claims (1) and (2), and again
issued Complainant a separate report of investigation (ROI-2) with a notice of his right to request
a hearing before an AJ (AJ-2). On January 6, 2015, Complainant requested a hearing. Despite
Complainant’s request for a hearing, the Agency issued a FAD (FAD-1) on April 29, 2015,

2 Complainant filed a petition for enforcement with the MSPB claiming that the Agency had
failed to comply with the Board’s order and arguing that he should have been selected. The
MSPB denied Complainant’s petition for enforcement. Complainant filed a petition for review
and, on April 1, 2014, the Board denied Complainant’s petition. MSPB Docket No. DC-3330-
11-0405-B-1 (Apr. 1, 2014). Complainant subsequently filed a civil action challenging the
MSPB’s decision. Ultimately, the U.S. Court of Appeals affirmed the MSPB’s decision.
[Complainant] v. Dep’t of Health and Human Servs., 641 Fed.Appx. 957 (Dec. 15, 2015).
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regarding claims (1) and (2).3 In FAD-1, the Agency determined that Complainant had not been
subjected to age, sex, or disability discrimination. On June 25, 2015, the Agency issued a FAD
(FAD-2) regarding claim (3) finding that Complainant had not been subjected to reprisal as
alleged.

On June 2, 2015, the AJ (AJ-2) assigned to the complaint consisting of claims (1) and (2) issued
an Acknowledgment Order. On September 9, 2015, AJ-2 issued a Memorandum and Order
stating that the Agency’s issuance of FAD-1 was improper and ordered the Agency to withdraw
it. AJ-2 asserted that he had jurisdiction over Complainant’s sex, age, and disability claims
(claims (1) and (2)). Commission records indicate AJ-2 subsequently issued a decision regarding
claims (1) and (2) on November 1, 2017. Despite AJ-2’s prior order, the Agency did not
withdraw FAD-1 and, instead, filed an interlocutory motion with the Commission requesting that
the Commission vacate AJ-2’s Memorandum and Order. Alternatively, the Agency requested
that the Commission remand the entire complaint (including the reprisal claim) to AJ-1, not AJ-
2. Complainant subsequently filed the instant appeal of FAD-2 and in response to the Agency’s
issuance of FAD-1.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he did not withdraw his hearing request as to claims (1)
and (2) and argues that the Agency should be sanctioned for issuing two illegal FADs, including
the first FAD in 2011 that initially dismissed his complaint. Additionally, Complainant claims
that the Agency should be sanctioned for its untimely and incomplete investigation and for not
allowing him to participate in either investigation. Complainant contends that none of the three
women who appeared on the certificate of eligibles was qualified. Finally, Complainant alleges
that the Agency falsified his qualifications. Accordingly, Complainant requests that the
Commission vacate FAD-1.

ANALYSIS AND FINDINGS

The Agency’s Issuance of FAD-1

The Agency issued FAD-1 addressing claims (1) and (2) on April 29, 2015. Therein, the Agency
alleged that it was issuing FAD-1 based upon Complainant’s January 30, 2015 withdrawal of his
hearing request. There is no evidence in the record supporting the Agency’s assertion that
Complainant withdrew his hearing request for these two claims. The record contains
Complainant’s December 16, 2014 hearing request withdrawal; however, Complainant
specifically stated that he was only withdrawing his hearing request related to only the reprisal
claim (claim (3)). As the Agency had issued two separate ROIs at different times and with

3 The Agency claimed that Complainant withdrew his hearing request on January 30, 2015;
however, there is no evidence in support of this claim in the record. The only hearing request
withdrawal in the record is Complainant’s December 16, 2014 request regarding only the
retaliation claim, which the Agency investigated separately with separate rights to a hearing.
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separate rights to request a hearing, the Commission finds that it was reasonable for Complainant
to believe that he was only withdrawing the reprisal claim. Ideally, the Agency should have
issued ROI-2 (on claims (1) and (2)), deemed it supplemental, and submitted it as part of the
record for the hearing request already pending before AJ-1. When the Agency improperly issued
two separate letters informing Complainant of his right to request a hearing, Complainant was
led to believe that his claims had been split into two cases. Pursuant to that belief, Complainant
made it clear that he wished to withdraw only the reprisal claim from the hearing process. AJ-1
then remanded that portion of the complaint for a FAD.

The Commission concludes that, based on the specific circumstances present, the Agency did not
have jurisdiction over Complainant’s sex, disability, and age claims and improperly issued FAD-
1. The record is clear that Complainant wished to withdraw only the hearing request related to
the reprisal claim. Thus, Complainant’s second hearing request was valid and FAD-1 is
VACATED.

The Agency’s Issuance of FAD-2

Neither party challenges the Agency’s issuance of FAD-2 following Complainant’s withdrawal
of his hearing request. Accordingly, the Commission finds that the Agency properly issued
FAD-2 addressing Complainant’s reprisal claim (claim (3)).

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that:
(1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3)
subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists
between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the record, and assuming arguendo that Complainant established a prima facie
case of reprisal, the Commission finds that the Agency articulated legitimate, non-retaliatory
reasons for its actions. More specifically, HRS affirmed that Complainant applied for the
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position at issue in October 2010, and was rated as “Unqualified.” ROI, at 88-89. HRS stated
that, in February 2012, the office was instructed to reconstruct the selection process based on
information provided by Complainant. Id. at 89. HRS explained that she and her first-level and
second-level supervisors reviewed Complainant’s application submission and awarded him five
additional points, as he did not receive the maximum available veterans’ preference points during
the initial selection process. Id. HRS confirmed that even after adding the additional points,
Complainant did not score high enough to be considered qualified for the positions. Id. As a
result, Complainant’s status remained “Unqualified” and he was not forwarded for further
consideration. Id. HRS noted that Complainant’s application status would not follow him or
prevent him from applying for other positions or the same position in the future.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

As Complainant chose to withdraw his hearing request, the Commission does not have the
benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no evidence that Complainant’s prior protected EEO activity was a factor in
any of the Agency’s actions. Complainant’s subjective belief that the management actions at
issue were the result of reprisal is insufficient to prove pretext. At all times, the ultimate burden
remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s
reasons were not the real reasons and that the Agency acted on the basis of retaliatory animus.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant
was not subjected to reprisal as alleged.

Request for Sanctions

Finally, Complainant requested that the Commission sanction the Agency for its improper FAD,
its untimely investigation, for conducting two “ex parte investigations,” for its failure to develop
an impartial record, and for its qualification ratings during the selection process. With regard to
Complainant’s allegations about the investigations, the Commission is not persuaded that the
investigation into Complainant’s complaint was incomplete or otherwise improper. Further,
Complainant was provided multiple opportunities to participate by the investigator, but
Complainant failed to produce an affidavit in support of his claims during both investigations.
See ROI, at 63-75. Furthermore, the Commission notes that Complainant withdrew his request
for a hearing with a Commission AJ regarding the reprisal claim, a process which would have
afforded him the opportunity to conduct discovery and to cure alleged defects in the record. As
to the issuance of FAD-1, as discussed above, the Agency improperly issued FAD-1 while
Complainant had a valid pending hearing request. The Agency created much of the confusion in
this case by issuing two separate hearing requests following its investigation into Complainant’s
initial and amended claims. Notwithstanding the Agency’s multiple mistakes, inadvertent or
otherwise, the Commission declines to issue sanctions in this matter. The record simply does not
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support a finding that the Agency’s erroneous actions were attributable to contumacious conduct
or bad faith. The Commission takes this opportunity, however, to remind the Agency that once a
complainant requests a hearing, the Commission appoints an Administrative Judge who assumes
full responsibility for the adjudication of the complaint, including overseeing the development of
the record. 29 C.F.R. § 1614.109(a). The Agency is then deprived of both the power and
jurisdiction to adjudicate the matter while it is pending before the Administrative Judge.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to VACATE FAD-
1 (claims (1) and (2)) and REMAND the matter for further processing in accordance with the
Order below. Additionally, the Commission AFFIRMS FAD-2 because the preponderance of
the evidence of record does not establish that reprisal occurred.

ORDER

The Agency is ordered to issue a final order within 30 calendar days of the date this decision is
issued and provide Complainant with appeal rights to the Commission. The Agency shall
provide proof of its compliance by providing the Compliance Officer with a copy of the final
order in accordance with the Implementation Order below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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:
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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint.
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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

November 30, 2017
Date