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

Equal Employment Opportunity Commission

Dec 13, 2022

Appeal No. 2022000596 (E.E.O.C. Dec. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliott L.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Request No. 2022003061 Appeal No. 2022000596 Hearing No. 480-2021-00323X Agency No. HHS-FDAOR-APA-070-20 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Elliot L. v. Dep’t of Health & Human Servs., EEOC Appeal No. 2022000596 (Apr. 4, 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). 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. 2022003061 2 Complainant, an applicant for employment and former employee with the Agency, filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), color (black), national origin (Cameroon, Africa), and in reprisal for prior protected EEO activity. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the matter clarified that Complainant’s claims would be addressed as follows: 1. Whether he was subjected to discrimination when on April 9, 2020, after his job interview of February 12, 2020, with the Food and Drug Administration (FDA) in Irvine or Woodland Hills, California (the California position), he became aware that he was not selected for the Consumer Safety Officer (CSO) position in Irvine or Woodland Hills, California posted under job Vacancy Announcement Number [10683417], at GS- 9. 2. Whether he was retaliated against when during his job interview on February 12, 2020, for the CSO job in Irvine or Woodland Hills, California, he conveyed to the job interview panel members that he was a former FDA employee in Kansas and was discriminated and harassed against by the management in Kansas (his former supervisor). He believes that both the interview panel members, the selecting official, maybe the Program Analyst, and maybe the Human Resources in Irvine or Woodland Hills, California, that assisted in the hiring or selection process were complicit in what he deems to be a retaliatory process, when he was not selected for the CSO position. 3. Whether he was subjected to discrimination by the FDA in Cincinnati, Ohio, or by some members of the Agency’s Office of Talent Solutions when on or before June 17, 2020, he was not selected for the CSO Job Vacancy Announcement Number 10695966, at GS-9, in Cincinnati, Ohio (the Ohio position) after his “referral to the selecting official” of March 27, 2020. 4. Whether he was retaliated against by the Agency (the FDA in Ohio or by some members of the Agency’s Office of Talent Solutions) before and/or on June 17, 2020, when he was not selected for the CSO Job Vacancy Announcement Number 10695966, at GS-9, in Cincinnati, Ohio, after the Agency became aware of his EEO complaint against the FDA in California. The AJ notified the parties of her intent to issue a summary judgment decision. The parties submitted responses, and on August 31, 2021, the AJ issued a decision finding that Complainant did not establish that there was a genuine issue of material fact or credibility in dispute indicating that he was subjected to discrimination, reprisal, or harassment as alleged. In the appellate decision, the Commission affirmed the final order. In his request for reconsideration, Complainant expressed his disagreement with the previous decision and reiterated arguments previously made on appeal. 2022003061 3 In addition, Complainant argued that: (1) the previous decision clearly erred by not addressing the specific arguments that he raised supporting a finding of discrimination regarding the California position; (2) the previous decision clearly erred by not addressing his claim of retaliation regarding the California position; (3) the previous decision erred with respect to claim 3 by addressing facts that were not discussed by the AJ in her decision regarding the Ohio position; and (4) the previous decision erred because it did not address his appellate arguments, which he maintained proved that he was retaliated against with respect to the Ohio position. Further, Complainant contends that the Commission erred by addressing his points of error and arguments collectively rather than individually. He maintains that he clearly showed that his non-selections were based on discrimination and reprisal, and requests that the Commission grant his request for reconsideration. Complainant also submitted a statement outlining what he considered to be “judicial misconduct” committed by all of the EEOC Administrative Judges and Office of Federal Operations (OFO) attorneys who adjudicated his four EEO complaints, which includes the instant matter, another pending complaint, and two prior complaints, and the complaint of his colleague. Complainant, among other things, argued that: they are all Caucasians, and/or White, and/or native of the U.S.A., whereas they all know that I am not (as seen in my claims regarding each of my EEO Complaints), and they all discriminated against me, and/or have had bias against me, and wrongfully and intentionally make me lose each of my 4 cases. Complainant also argued that because certain Administrative Judges have ruled against him in the past that they have demonstrated bias against him because of his race, color, and national origin and should have recused themselves from his subsequent cases. The Agency, in pertinent part, maintains that Complainant did not meet the criteria for reconsideration and argued that his request should be denied. ANALYSIS AND FINDINGS The Commission emphasizes that a request for reconsideration is not a second appeal. 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. Thus, the Commission’s scope of review on a request for reconsideration is narrow. Lopez v. Dep’t of the Air Force, EEOC Request No. 05890749 (Sept. 28, 1989). At the outset, we reject Complainant’s assertion that the mere fact that the race, color, or national origin of the adjudicators in his various cases may differ from his means those adjudicators were inherently or demonstrably biased against him. 2022003061 4 Aside from Complainant’s bare assertion, there is no evidence to support his allegation of bias on the part of any Administrative Judge or OFO attorney.2 Also, we find that Complainant has not provided evidence to support his assertion that various Administrative Judges engaged in judicial misconduct by not recusing themselves from his subsequent cases. A motion for recusal should be granted upon a substantial showing of personal bias on the part of the Administrative Judge. Guient v. U.S. Postal Serv., EEOC Appeal No. 0120092811 (Oct. 27, 2009). The Commission has held that merely ruling against one party in the past does not justify recusal. See Smith v. Agriculture, EEOC Request No. 0520100326 (May 28, 2010). With respect to the specific arguments raised by Complainant in his instant request, we find no support for Complainant’s repeated contention that the previous decision clearly erred because it did not specifically address his arguments point by point. Complainant pointed to no authority to support this assertion. Furthermore, as noted by the Agency, the previous decision listed the claims at issue on appeal, and found, among other things, that the preponderance of the evidence did not establish that Complainant was discriminated against as alleged. Moreover, the previous decision clearly indicated that the parties’ arguments on appeal were reviewed. Therefore, we reject Complainant’s implied assertion that the only way the previous decision could have ruled against him would be if his arguments had not been considered. Contention (1): Regarding Complainant’s first contention, he maintained that he was more qualified than the selectees for the California position and that the AJ erred in finding the Agency’s assertion that Complainant’s prior CSO experience was “stale” was not unreasonable, in that he served in the role for around 9 months, approximately 4.5 years before the interview at issue here. Complainant emphasized that: I showed and proved that I was largely more qualified than the 2 selectees in term[s] of education, and in term[s] of experience, since the 2 selectees were not more educated than me, and one of them had just a Bachelor’s degree, whereas I have a Master’s degree in the field and 3 other graduate Certificates in the field, and none of the 2 selectees had any experience whatsoever in the field (the pharmaceutical field), whereas I have several years of experience in the field, and 9 months of work as a CSO in the FDA, which is the very same job at issue here. In a non-selection case like this, one way that a complainant can show pretext is by establishing that the alleged disparities in qualifications between them and the selectee are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen 2 See Catheryn P. v. U.S. Postal Serv., EEOC Appeal No. 2021002386 (Feb. 28, 2022) (noting that an allegation of bias without more is not sufficient reason to reverse an AJ’s decision but rather that a complainant “must show that the AJ’s bias against her so permeated the process, that it would have been impossible to receive a fair hearing, or that the process was so tainted by substantial personal bias that she did not receive a fair and impartial hearing.”). 2022003061 5 the [selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). In this case, we do not find that Complainant established that his qualifications were plainly superior to those of the selectees. In addition to the AJ’s determination regarding how long-ago Complainant’s experience took place, the previous decision also noted that that the record indicated that Complainant did not interview well for the California position. According to the interview panel, Complainant was unable to communicate effectively, focus, or stay on task during the interview. He scored 36/75 and 37/75 from the two interview panelists, P1 and P2. The selectees, however, scored 57/75 and 57/75 and 59/75 and 57/75. Complainant also reiterated his claim that the AJ erred in finding that although the interview notes may not have been signed on the day of the interview, no evidence refuted the Agency’s assertions that the interview notes were taken contemporaneously with his interview, the ratings and scorings were done at the time of the interview, and the interview notes were posted on the Agency’s SharePoint page. Complainant stated that he “[c]learly disputed [the assertion] when [he] said ‘[t]his is not true.’” Complainant believes that this was enough to successfully refute the Agency’s argument. We note, however, that when opposing summary judgment, the non-moving party’s opposition must consist of more than just bare assertions, general denials, conclusory allegations, or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. Fernandes v. USPS, EEOC Appeal No. 0120113904 (Jul. 25, 2013) (citing Celotex v. Catrett, 477 U.S. 317, 322-23 (1986)). Here, we find that Complainant’s mere statement that the Agency’s assertions about his interview notes, ratings, scores, and posting on its SharePoint page were not true was not sufficient to create a genuine issue of material fact as to this matter. Contention (2): Complainant argued that the previous decision clearly erred by not addressing his claim of retaliation regarding the California position. On appeal, Complainant maintained that he proved that the Agency retaliated against him with regard to his April 2020, nonselection, because during his February 12, 2020, interview for the California position, he disclosed his 2015 EEO activity.3 Complainant maintained that P2 was “visibly against [him]” after he told them that he had been discriminated and/or harassed by his former supervisor in Kansas in 2015.” 4 Complainant further stated that: 3 Complainant maintained that he told the panel members about his EEO activity; however, P1 stated that when asked to talk about himself, Complainant indicated that he used to work for the FDA for almost a year in Kansas, that he did not get a good evaluation at midyear, so he was placed on a Performance Improvement Plan. He stated that management forced him to resign from his position, which he did. Complainant, P1 maintained, never told him or P2 that he had filed an EEO complaint against the agency. He only spoke to how poorly he had been treated and that his supervisor harassed him. 4 According to P1, Complainant’s camera was disabled and he and P2 could not see him; therefore, they only had audio communication. Presumably, Complainant was able to see them, however. 2022003061 6 since it committed Fraud and graded my job interview months after it selected the candidates, and almost 2 months after it was aware of my EEO complaint filed against it. This Fraud proves that my non-selection was improper, wrong, false, and even intentionally. Thus, I proved the retaliation claim here. We find that Complainant did not establish clear error with respect to this matter. The previous decision found that the preponderance of the evidence did not establish that Complainant was discriminated against as alleged. This determination encompassed Complainant’s claim of retaliation; therefore, we find that this matter was addressed in the previous decision. Furthermore, in a retaliation case, a complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected 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 the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000). The Commission has held that the nexus or causal connection may be shown by evidence that the adverse action followed the protected activity within such a period and in such a manner that a reprisal motive is inferred. Lee v. Dep’t of Interior, EEOC Appeal No. 01A62376 (Aug. 25, 2006) citing Simens v. Dep’t of Justice, EEOC Request No. 05950113 (Mar. 28, 1996). “The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close’ [in time].” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001), (citing O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (C.A.10 2001); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (C.A.10 1997) (three-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-1175 (C.A.7 1992) (four-month period insufficient)); see also Julian v. U.S. Postal Serv., EEOC Appeal No. 01A54971 (Jan. 6, 2006). Here, Complainant is maintaining that almost five years after his EEO activity, he was subjected to an adverse action by individuals whom he admitted in his affidavit he did not know at the time of the selection decision, and who were unaware of his EEO activity until he allegedly told them. Accordingly, we find that Complainant did not show that there was a causal connection between his EEO activity and this non-selection. Contention 3: According to Complainant, the previous decision erred with respect to claim 3 by addressing facts that were not discussed by the AJ in her decision regarding the Ohio position. In addressing the Ohio position, the AJ found that: With respect to the position in Ohio, Complainant speculates that [A1, an Agency official] informed [A2, Agency official] of his statements to the interview panelists regarding his allegations of harassment and discrimination when he was a CSO in Kansas. 2022003061 7 This speculation necessarily relies upon the assumption that the interview panelists informed [A1] that Complainant discussed these allegations during the interview. Complainant provides no evidence to support this assumption or the assertion regarding [A1’s] alleged conversation with [A2]. The previous decision, however, found that: Regarding the position in Ohio, the Agency initially found Complainant deemed ineligible based on his resume and his name was not listed on the certificate of eligibles. Upon Complainant’s inquiry, the Agency reviewed his resume again and found its mistake and amended the certificate of eligibles and forwarded the certificate, which also added several other applicants, to the hiring managers. The Agency received the amended certificate of eligibles on March 27, 2020, and decided not to interview the additional candidates, including Complainant, since it already decided to select two candidates based on their outstanding resumes and interviews. Complainant thus was not selected for the position in Ohio. We find no error here. The Commission has consistently held that appeals from decisions issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), are subject to a de novo review by the Commission. 29 C.F.R. § 1614.405(a).5 We also find no inconsistency between the issue the AJ focused on and the previous decision. Contention 4: Complainant argued that the previous decision erred because it did not address his appellate arguments, which he maintained proved that he was retaliated against with respect to the Ohio position. Specifically, he noted the AJ’s determination that there was no evidence that A1 communicated with A2 about his EEO activity. Complainant noted an email indicating that A1 participated in a June 9, 2020, mediation regarding his EEO complaint against the Agency concerning the California position. Complainant noted that a few days later, he was not selected for the Ohio position. Complainant maintained that he was among the best qualified applicants, a fact he maintained that neither the Agency nor the AJ ever disputed. According to Complainant, because his assertion that A1 and A2 did communicate about the harassment, which he claims to have been subjected to in Kansas, was never denied or disputed, his contention should have been deemed “a true, valid, and proven statement,” with no further need of proof. The AJ’s determination that he did not provide supporting evidence, he argues, was therefore erroneous. 5 See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2022003061 8 Upon review of the arguments raised by Complainant here, we find that he has not presented sufficiently persuasive evidence to support reconsideration of the previous decision. As was indicated above, Complainant, to establish that that the AJ erred in granting summary judgment, must provide more than just bare assertions, and speculation, he must provide affidavits or other competent evidence. As discussed in our previous decision, the Agency articulated legitimate, nondiscriminatory reasons for Complainant’s non-selection for the position. While Complainant has demonstrated that he was qualified for the Ohio position, Agency officials explained that they chose the selectees because they believed that they were better qualified to meet the Agency’s needs. When choosing among highly qualified candidates for a position, an employer has broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In sum, Complainant has not shown that the Agency’s reasons for his non-selection are unworthy of credence or that discriminatory or retaliatory animus more likely motivated the Agency’s actions. We have reviewed the entire record and considered all of Complainant’s contentions here and before as well as the evidence that was generated at every stage of the complaint process. Complainant has failed to persuade us that our prior decision contained clear errors meriting a grant of his request for reconsideration under 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. 2022000596 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. 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. 2022003061 9 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 December 13, 2022 Date