Jonathan V., 1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Sep 27, 2018

0520180526 (E.E.O.C. Sep. 27, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jonathan V., 1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.

Request No. 0520180526

Appeal No. 0120152151

Hearing Nos. 531-2014-00288X
531-2015-00208X

Agency No. HHSFDACVM07311

DISMISSAL OF REQUEST FOR RECONSIDERATION

Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120152151 (November 30, 2017).
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(b).

By regulation, requests must be filed within 30 calendar days after the party receives the previous
decision. 29 C.F.R. § 1614.405(b). A document is timely if it is received or postmarked before
the expiration of the applicable filing period or, in the absence of a legible postmark, if it is received
by mail within 5 days of the expiration of the applicable filing period. 29 C.F.R. § 1614.604(b).

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.
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It is noted that the Commission’s previous decision included a Certificate of Mailing indicating
that, for purposes of timeliness, the Commission will presume that the decision was received
within 5 calendar days of the date on which it was mailed, November 30, 2017. Complainant is
presumed to have received the previous decision no later than December 5, 2017. As evidenced
by the postmark date, Complainant mailed the request on July 19, 2018, which was beyond the 30-
day limit set by regulation. As justification for the late request submission, Complainant argues
that he mistakenly believed the Commission’s decision dated November 30, 2017, required the
Agency to issue a second final decision for his reprisal claim. He also states that there are
numerous other extenuating circumstances, which individually or collectively may justify and
excuse his late filing.

The Commission finds Complainant’s contentions to be unpersuasive. In our decision dated
November 30, 2017, we informed Complainant of his right to request reconsideration of the
decision. We advised Complainant of the time limits for filing the appeal and the consequences of
an untimely filing. Nevertheless, Complainant did not file his request for reconsideration until
July 19, 2018, nearly eight months after our 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
dismiss the request. The decision in EEOC Appeal No. 0120152151 remains the Commission’s
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

ORDER

The Agency is ordered to issue a final order within 30 calendar days of the date this decision is
issued and provide Complainant with appeal rights to the Commission. The Agency shall provide
proof of its compliance by providing the Compliance Officer with a copy of the final order in
accordance with the Implementation Order below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or filed your appeal with the Commission. 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. 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.

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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 27, 2018
Date