[Redacted], Homer S., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Sep 6, 2022

Appeal No. 2021003478 (E.E.O.C. Sep. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Homer S.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (National Institutes of Health), Agency. Appeal No. 2021003478 Hearing No. 531-2021-00100X Agency No. HHS-NIH-NIDCR-002-20 DECISION On June 2, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. During the relevant time, Complainant worked as an Intramural Research Training Award Trainee at the Agency’s Dental and Craniofacial Research facility in Bethesda, Maryland. On November 12, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of sex (male), religion (Christian), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when the Agency allegedly undertook a series of events including, but not limited to being denied access to the work environment, blocked from the Agency network, kept from observing other researchers and working with specific groups, and receiving a letter that he violated the terms of his position. 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. 2021003478 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, on March 25, 2021, the AJ assigned to the case granted the Agency’s March 9, 2021, motion to dismiss for failure to state a claim, specifically deciding that Complainant was not an employee and, therefore, the case was outside the jurisdiction of the Commission. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. The question before the Commission is whether the AJ properly determined that they, and the Commission, had no jurisdiction by which to render a decision on Complainant’s claims. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence established that Complainant was not an Agency employee. The AJ correctly applied the Ma standards, as affirmed in Serita B. v. Dep’t of the Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016). See Ma v. Dep’t of Health and Human Serv., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)). Notably, the Agency specified to Complainant that he was not an employee, but a trainee. See Roxanne C. v. Dep’t of Energy, EEOC Appeal No. 0120172944 (Feb. 8, 2019) (the Commission found that an intern was not a valid comparator for employment discrimination, because an intern was a contractor and not an employee); Complaint File (CF) at 17. No taxes were withheld; rather, the money was a taxable grant. CF at 17. The work of his program was described as “important, innovative, and increasingly independent,” indicating that the intent was not to be specifically directed by existing objectives of the Agency. CF at 23. He did not accrue annual or sick leave. CF at 19. No health care reimbursement was provided. CF at 45. Complainant acknowledged that, aside from the instruction to work 40 hours per week, no further schedule setting was provided by the Agency. CF at 114. The traineeship was proscribed as limited to one year, May 7, 2018, through May 6, 2019, but was limited to two years. CF at 113, 340. The traineeship was to be one of mutual assent, in that either party could decide not to renew the traineeship after one year. CF at 210. When complainant’s primary institute (PI) decided not to renew his traineeship, Complainant was responsible to find another laboratory in which to perform research. CF at 210. 2021003478 3 Moreover, the Commission decided in 2006 that members of this exact traineeship were not employees of the Agency for purposes of EEOC regulations. El-Gazzar v. Dep’t of Health & Human Serv., EEOC Appeal No. 01A55338 (Feb. 27, 2006). To the extent that Complainant argues that the AJ is inaccurate with specific facts, the record does not support these assertions, and Complainant has not offered specific evidence to the contrary. To the extent that he argues the distinction between 12 and 13 elements as to the relevant legal test, the Commission finds that any typographical errors are harmless in nature and are irrelevant to the issue at hand. Finally, to the extent that Complainant argues that El-Gazzar should not be generalized because the Complainant in that case was a foreign national, the Commission notes that the National Origin of the Complainant was not part of the analysis of that case, and we decline to make the National Origin of any Complainant a differentiating factor for how we apply the law, including this case.2 For the reasons outlined above, we find that Complainant was not an Agency employee for purposes of EEOC regulations, and the AJ properly dismissed the complaint pursuant to 29 C.F.R. § 1614.103(c) and § 1614.107(a)(1). Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. 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. 2 Although this case does not address the merits, the Commission notes that the record demonstrates that Complainant has a history of troubling behavior. He was informed not to return to the Agency because of frequent concerning communication with co-workers that made them afraid for their safety, yet he continued to do so. CF at 350, 354, 361, 363, 366-67, 376, 380, 409-19, 450. Moreover, in this own brief, Complainant notes that he presented at the AJ’s office and caused the AJ to seek a protective order. Complainant’s Brief at 2. This is unacceptable behavior and will not be rewarded by the Commission. Moreover, despite the Agency not being the employer of Complainant, they did have an obligation to protect its employees, contractors, and visitors from behavior such as that evidenced by Complainant. 2021003478 4 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. 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. 2021003478 5 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