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

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2019002124 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Billy B.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Request No. 2021002081 Appeal No. 2019002124 Hearing No. 443201700072X Agency No. HHSFDAORAC05916 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Billy B. v. Dep’t of Health and Human Service, EEOC Appeal No. 2019002124 (Sept. 11, 2019). 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). On July 5, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race, color, national origin, and in reprisal for prior 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. 2021002081 2 1. On January 27, 2016, prior to the end of his probationary period, he received a letter of termination from his first level supervisor (“S1”); 2. S1 failed to issue him a 2015 end-of-year Performance Management Appraisal Program (“PMAP”) evaluation; 3. [voluntarily withdrawn];2 and 4. In or about July 2015, he received an unfair, improper and discriminatory mid-year PMAP which inaccurately reflected his work performance. After complaining to the Director and Deputy Director of the Investigations Branch, several negative criticisms were removed from his evaluation. His complaint and evaluation reassessment prompted retaliation by S1 and led to his termination. Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing finding no discrimination. The Agency did not issue a final order and the AJ’s decision effectively became the Agency’s final action. Complainant appealed, and the Commission’s prior decision affirmed the Agency’s decision. In his request, Complainant provides no evidence to warrant granting his request. The Commission emphasizes that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Aug. 5, 2015), at 9-18; 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. Complainant has not done so here. 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. 2019002124 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2 On June 14, 2017, Complainant filed a “Motion to Remove one Claim, to Slightly Modify the Other Claims, and to add Three More Claims.” On June 21, 2017, an EEOC Administrative Judge (AJ) denied Complainant’s request to include additional claims (harassment/hostile work environment) as untimely but granted his request to abandon the allegation in Claim 3. Complainant subsequently filed a Motion for Reconsideration, which the AJ denied on July 5, 2017. As Complainant raised the matter again on appeal, the Commission affirmed the AJ’s June 21, 2017 and July 5, 2017 denials of Complainant’s motions for the reasons he already provided. However, the Commission considered the harassment claims as background information in reaching its appeal decision. 2021002081 3 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. 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 May 19, 2021 Date