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

Equal Employment Opportunity Commission

Nov 13, 2018

0520180515 (E.E.O.C. Nov. 13, 2018)

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

Maya F.,1
Complainant,

v.

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

Request No. 0520180515

Appeal No. 0120180315

Hearing No. 531-2013-00097X

Agency No. HHSFDACDER04512F

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180315 (June 13, 2018). 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).

In his underlying complaint, Complainant alleged that the Agency subjected him to unlawful
discrimination and a hostile work environment on the bases of age, race (South Asian), national
origin (Indian), and in reprisal for prior protected EEO activity when:

1. Complainant was notified that his duties were being removed due to submission of
late work;

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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2. Complainant was given a “minimally successful” on his final 2011 Performance
Appraisal;
3. Complainant’s supervisors . . . assigned him unreasonable workloads, provided
conflicting deadlines, micro-managed and scrutinized his work, required him to
comply with unreasonable deadlines, and repeatedly threatened to discontinue his
research projects;
4. Complainant was informed that management was denying his requests for
reassignment to another division;
5. [An Agency official] placed Complainant under a new lab chief . . . who is alleged
to have harassed [Complainant];
6. [an Agency official] cancelled Complainant's previously approved leave, instructed
Complainant to comply with unreasonable deadlines, and made false allegations
that Complainant was engaged in unethical and unacceptable conduct;
7. [An Agency official] repeatedly threatened to take down Complainant's
experimental setups involving UV laser and stated that he would force Complainant
to relinquish and share his lab space with four additional individuals, who would
be permitted to conduct experiments that would actively interfere with
Complainant’s work and destroy his equipment;
8. [An Agency official] informed Complainant that his future with the division did
not look good, indicating that he would not be renewed after October 2013;
9. Complainant was informed that his 2011 rating would be further reduced to
unacceptable and on May 16, 2012, [an Agency official] refused Complainant's
request to raise his summary rating for 2011 from “unacceptable”;
10. management attempted to take over Complainant's [medical countermeasures
(MCM)] grant and repeatedly attempted to assign the grant to another [Principal
Investigator (PI)];
11. management assigned Complainant revised duties that included work on his MCM
grant project but ignored Complainant's repeated requests to work on the project,
blocked the purchase of equipment needed for the project, or otherwise provided
[Complainant] with any divisional support or funds from the MCM grant;
12. Complainant alleged being subjected to harassment as evidenced by:
a. [an Agency official] stopped Complainant’s hiring of a post-doc fellow
for his lab;
b. [an Agency official] yelled at Complainant and ordered him out of his
office when Complainant attempted to complain about the refusal to allow
the hiring of a fellow as well as continuous lack of technical support for his
lab over the last five years;
c. during his mid-cycle performance review, [an Agency official] yelled at
Complainant, telling him, “There is no site visit for you; there is no tenure
for you,” and then further threatened to terminate Complainant’s
appointment;
d. [an Agency official] informed Complainant that [another Agency
official] would not conduct his site visit or support him for tenure;
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13. The acting lab Chief falsely accused Complainant of harassing other coworkers;
stated that Complainant was no longer a PI and that his lab space now belonged to
the acting lab Chief, was condescending, insulting and disrespectful to Complainant
and his work, and he indicated that he would soon be forcibly assigning other
fellows to occupy benches in Complainant's lab;
14. The acting lab Chief informed Complainant that management would begin work to
modify the chemical fume hood in Complainant's lab which would destroy
Complainant's equipment and four years of work, despite Complainant's repeated
requests that the modifications not be carried out;
15. [An Agency official] informed Complainant that management had prematurely
terminated his MCM grant without his knowledge and that all monies had been
refunded.

Following an investigation, the matter was assigned to an EEOC Administrative Judge (AJ) for a
hearing. Following a hearing, the AJ found that Complainant had failed to prove he had been
discriminated or retaliated against. In its final order, the Agency fully implemented the AJ’s
decision. On appeal, the Commission affirmed the Agency’s final order finding that the AJ’s
decision was supported by substantial evidence.

In his request for reconsideration, Complainant raises factual matters that should have been
addressed and resolved in the hearing before the AJ. We find that Complainant’s arguments do
not 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.
Accordingly, we find that Complainant has failed to demonstrate that the Commission should
reconsider its appellate 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. 0120180315 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.
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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

November 13, 2018
Date