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

Equal Employment Opportunity Commission

Sep 30, 2022

Appeal No. 2022000087 (E.E.O.C. Sep. 30, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Daniel T,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Request No. 2022003063 Appeal No. 2022000087 Agency No. HHS-FDACVM-121-18 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2022000087 (April 11, 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). At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Lead Project Manager, GS-0301-14, at the Center for Veterinary Medicine in Rockville, Maryland. On November 1, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment based on race (African American), disability (physical), and reprisal (prior protected EEO activity) when: 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. 2022003063 2 1. Beginning in March 2017, and continuing to the present, the Deputy Director of Compliance (DDC), and Director of Compliance (DC) have systematically and continuously impeded Complainant’s ability to perform his supervisory functions by delegating work directly to his subordinates without his approval or knowledge; 2. beginning in March 2017, and continuing to the present, DDC and DC have deliberately curtailed Complainant’s supervisory functions by removing work projects and decreasing his workload, which is not done to any of the other five Team Leads, none of whom have prior EEO activity or are an African-American male; 3. Beginning March 2017, and continuing through the present, DC has repeatedly failed to attend scheduled meetings with Complainant regarding his concerns about his workload, supervisory responsibilities, and management of Complainant’s subordinate staff; 4. Beginning March 2017, and continuing to the present, the Supervisory Consumer Safety Officer, and DC have excluded Complainant from Work Planning meetings and deprived him of access to the Work Planning email forum, both of which are relevant to his duties as a Supervisory Project Manager; 5. On or about June 29, 2018, Complainant learned that he was removed as the SharePoint Owner for his division, a responsibility of his position, and had his access and ability to edit the Compliance Shared Documents folder and the Office Director report in SharePoint rescinded; 6. Beginning in July 2018, although Complainant made numerous attempts to regain access, DDC and DC failed to restore Complainant as the SharePoint owner with full access to the Compliance Shared Documents folder; and 7. On September 18, 2018, Complainant received a letter from Human Resources wherein he learned that he was reassigned to the position of Supervisory Project Manager, mandated to complete a one-year probationary period, as well as provided with a new position description which encapsulated responsibilities that Complainant had not been trained in nor was familiar with. After several discussions with Human Resources, the Agency rescinded the one-year probationary mandate but failed to restructure Complainant’s position description which included additional responsibilities about which Complainant has no knowledge and has received no training. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. 2022003063 3 In the decision, the AJ determined that Complainant’s hostile work environment claim was comprised of actions taken by his supervisory chain from March 2017 to September 2018, including, regular usurpation of his supervisory functions; the removal of major tasks from his portfolio, disrespect which undermined his authority; false accusations of performance deficiencies; removal of his ownership access to the Division’s SharePoint site, which was not returned to him despite his requests; and an attempt to place him in a probationary status when his position description was updated. The AJ found that these actions were insufficiently severe or pervasive to establish a hostile work environment. The Agency then issued a final order implementing the AJ’s decision. Complainant appealed. In EEOC Appeal No. 202200087, the Commission affirmed the Agency's final order which implemented the AJ’s summary judgment decision finding no discrimination or unlawful retaliation. In the instant request for reconsideration, nothing that Complainant has submitted supports a determination that the prior decision affirming the Agency final order was in error. We acknowledge that Complainant has presented numerous arguments contending that EEOC Appeal No. 2022000087 was improperly decided based on the evidence. However, Complainant has not provided that EEOC Appeal No. 2022000087 was clearly erroneous. Rather, it appears that Complainant has submitted arguments in an attempt to reassert his original claims. In an attempt to identify material facts in dispute, Complainant has repeated previous arguments regarding managements awareness of his race. However, we note that 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. Even considering Complainant's arguments in the first instance, we do not find that he has pointed to any erroneous interpretation of material fact which would invalidate the prior Commission decision. 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. 2022000087 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2022003063 4 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. 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 September 30, 2022 Date