[Redacted], Adan N., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services, (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Jan 4, 2023

Appeal No. 2021003220 (E.E.O.C. Jan. 4, 2023)

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. Request No. 2022004385 Appeal No. 2021003220 Hearing No. 490-2015-00165X Agency No. HHS-FDAORASW-069-14 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Adan N. v. Department of Health and Human Services, EEOC Appeal No. 2021003220 (July 18, 2022). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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). During the relevant time, Complainant worked for the Agency as a Chemist in Jefferson, Arkansas. 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 2022004385 On August 13, 2014, Complainant filed a formal complaint claiming discrimination based on national origin, age, and in reprisal for prior protected activity. Following an amendment of the formal complaint, Complainant ultimately raised 24 claims, include the following discrete acts of discrimination: management ordered him to take a proficiency test; denied a transfer request; denied him training; denied him the opportunity to apply for a grant, and removed him from federal service during his probationary period. The amended complaint also contained incidents of alleged harassment, such as management interfering with his work performance, humiliating him, ignoring his advice and work; and increasing his workload. After an investigation into the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The assigned AJ held a hearing on the merits. Following the hearing, the AJ issued a bench decision finding no discrimination was established. The Agency thereafter issued a final order adopting the AJ’s bench decision finding no discrimination. In EEOC Appeal No. 2021003220, the Commission affirmed the Agency’s final order implementing the AJ’s decision finding no discrimination. In the instant request for reconsideration, Complainant provides arguments which were raised, or which could have been raised, below. We note that arguments, in essence, relate to the AJ’s alleged improprieties during the hearing process, such as not “listening to the real facts,” various actions obstructing the hearing, and other such related actions. We note that the prior decision expressly noted the arguments raised on appeal, which are very similar to the ones raised in the instant request. A request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. 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. 2021003220 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 3 2022004385 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. 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 January 4, 2023 Date