[Redacted], Emerson S., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Sep 6, 2022

Appeal No. 2022003612 (E.E.O.C. Sep. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emerson S.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2022003612 Agency No. HHS-OS-0006-2021 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 9, 2022, dismissing a formal complaint alleging unlawful 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. BACKGROUND During the period at issue, Complainant worked as a Supervisory Administrative Law Judge (ALJ) at the Agency’s Office of Medicare Hearings and Appeals (OMHA) in Arlington, Virginia. On November 25, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On December 29, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him and subjected him to discriminatory harassment based on race, national origin, sex, religion, color, disability, age, and in reprisal for 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. 2022003612 2 a. In November 2020, Complainant learned management lied to the EEO Counselor in early August 2020, when responding to Complainant’s prior claim regarding the HHS Secretary not ratifying Complainant’s Administrative Law Judge (ALJ) appointment in August 2018. b. Complainant’s received a Letter of Dismissal on October 21, 2020 Formal Complaint that did not meet Federal sector standards. An EEO Specialist electronically signed the letter on behalf of the Branch Chief, EEO Operations Division. c. Complainant reviewed his EEO Counselor’s report in April/May 2020, regarding his prior claim and learned the Associate Chief ALJ had been approving his timecards and charging his time as administrative leave without verifying that Agency management made the statutorily required findings to place him on administrative leave. d. In late October 2020, Complainant learned of the Agency’s continued failure since the last quarter of Fiscal Year 2018, to provide the required No Fear Act statistics for the Office of the Secretary (OS). e. On November 8, 2020, management was allowed to leave HHS on detail with Complainant’s Travel Credit Card. f. On January 19, 2018, after Complainant was placed on administrative leave, management confiscated his Travel Credit Card and he has not seen it since. g. Around September 2020, Complainant learned he could contribute “catch up” contributions to his TSP, but OS OMHA payroll office did not process his request to contribute catch up contributions until December of 2020. h. In December 2020, Complainant learned HHS attorneys breached his privacy when they asked questions about him during a deposition of another former Federal employee who had a pending EEO matter. i. Since January 19, 2018, after Complainant was placed on administrative leave, the Agency has continued to deny Complainant Live Ethics Training; No Fear Act training; and training regarding Federal employee health plans, and related entitlements of all HHS employees such as TSP catch up. j. Since January 19, 2018, after Complainant was placed on administrative leave, the Agency continued to deny him access to his government laptop and his government Microsoft outlook account, which caused him to miss the opportunity to participate in a Merit Systems Protection Principles survey randomly emailed to a selected sample of federal workers because he did not access to his email. 2022003612 3 k. Since January 19, 2018, after Complainant was placed on administrative leave, the Agency has denied him access to the HHS list serve, thus he cannot view job openings. l. Since January 19, 2018, after Complainant was placed on administrative leave, the Agency has not informed him as to whether he was on notice leave or investigative leave. On May 9, 2022, the Agency issued a final decision dismissing the formal complaint on several procedural grounds. First, the Agency dismissed claims a, c, e, f, i, j, k, and l, pursuant to 29 C.F.R. § 1614.107(a)(1), for raising the same matters in prior complaints (Agency File Nos. HHS-OS-0039-2017 and HHS-OS-0027-2020) that were subsequently adjudicated by the Commission (EEOC Appeal Nos. 2021001541 and 202000165). Second, the Agency dismissed claims b, d, g, and h, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency determined that Complainant failed to demonstrate that he was an aggrieved individual. Finally, the Agency dismissed claim g for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant initiated EEO Counselor contact on November 25, 2020, which it found beyond the 45-day limitation period. The instant appeal followed. ANALYSIS AND FINDINGS Previously Raised Claims (Claims a, c, e, f, i, j, k, and l) EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of an EEO complaint that states the same claim that is pending before or has been decided by the agency or the Commission. EEOC’s administrative judges have the authority to dismiss complaints pursuant to 29 C.F.R. § 1614.107 on their own initiative, after notice to the parties, or upon an agency’s motion to dismiss a complaint. The Agency properly dismissed the claims at issue for raising the same matters in a prior complaint. Specifically, the record reflects that Complainant’s prior two complaints (Agency File Nos. HHS-OS-0039-2017 and HHS-OS-0027-2020) involved claims of discrimination and discriminatory harassment when Complainant was purportedly denied training during his placement on administrative leave, and he was purportedly denied access to resources (email, laptop, travel card, job postings) during this time. Complainant also alleged, in the prior complaints, that his ALJ appointment was not ratified. These claims all stemmed from Complainant’s January 19, 2018 placement on administrative leave from the Agency which was addressed in his prior complaints. 2022003612 4 The record further indicates that the Agency previously adjudicated these claims in the relevant prior complaints, and on appeal, the Commission affirmed the Agency’s decisions. See EEOC Appeal Nos. 2021001541 and 202000165.2 Therefore, the Agency properly dismissed any claims that are identical to the claims raised in Agency File Nos. HHS-OS-0039-2017 and HHS-OS- 0027-2020 pursuant to 29 C.F.R. § 1614.107(a)(1). Failure to State a Claim (Claims b, d, g, and h) An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§1614.103, 106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. Here, the Agency properly dismissed the claims at issue for failure to state a claim. We agree with the Agency that Complainant failed to allege any present harm or loss for which there is a remedy with regard to: the EEO Specialist signing his letter of dismissal instead of the EEO Branch Chief (claim b);3 the Agency’s alleged failure to provide statistical information to Congress (claim d); the brief delay in processing his request for TSP catch-up contributions (claim g);4 or when questions were asked about him in a deposition (claim h). As such, we affirm the Agency’s dismissal of these claims for failure to state a claim. 2 The record further indicates that Complainant sought reconsideration of the Commission’s decision which was denied. See EEOC Request Nos. 2021004000 and 2021003458. 3 We also note that 29 C.F.R. § 1614.107(a)(8) provides for the dismissal of a claim alleging dissatisfaction with the processing of a previously filed complaint. This dismissal basis would apply to claims a, b and c. 4 Because we affirm the Agency’s dismissal of claim g for failure to state a claim, we need not address the Agency’s alternative grounds for dismissal of this claim. 2022003612 5 CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons identified above is AFFIRMED. 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. 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. 2022003612 6 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. 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 6, 2022 Date