U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Byron E.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Office of the Secretary - Age Administration), Agency. Appeal No. 2021001541 Agency No. HHS-OS-0027-2020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 21, 2020, dismissing his 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 At the time of events giving rise to this complaint, Complainant worked as an Administrative Law Judge, AL-3, Series 935, at the Agency’s Office of Medicare Hearings and Appeals, Arlington Field Office facility in Arlington, Virginia. On May 6, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), religion (religious belief not aligned with management officials), disability, age (64 years), and reprisal for prior protected EEO activity when: 1. In 2011, Complainant was denied the opportunity to become a member of a Union 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. 2021001541 2 Bargaining Unit such as the type of bargaining unit of which the Administrative Law Judges on the Departmental Appeals Board (DAB) are members; 2. On January 19, 2018, Complainant was placed on “enforced leave” (administrative leave); 3. On an unspecified occasion in 2018, Complainant was not reimbursed for travel costs associated with his case before the Merit System Protection Board (MSPB); 4. From January 19, 2018 to the present, Complainant has been unable to participate in an agency employee survey, complete training, receive a Christmas card and other Agency notifications due to lack of access to his email due to his administrative leave status; 5. On May 28, 2020, Complainant learned that all the electronic copy of files and hearing recordings Complainant had previously adjudicated had been “destroyed” (deleted) from the regular office electronic filing location; 6. In late May/early June 2020, Complainant learned that his appointment as an Administrative Law Judge was not ratified by the Secretary of the Department of Health and Human Services while Complainant was in administrative leave status; 7. On or about July 2020, Complainant was not eligible to apply for a Chief Administrative Law Judge position that became open. Complainant believes that due to the lack of access to his email while on administrative leave status, he did not receive notifications for Administrative Law Judge-2 (ALJ-2) positions. Had Complainant been able to apply, he would have been selected and would then have had the qualifications to apply for the Chief Administrative Law Judge position; and 8. In August 2019, Complainant learned that the Agency transferred human resources (HR) authority from the Program Support Center (PSC) and the Rockville Center to OMHA in 2015. The Agency dismissed the claims on various grounds. With regard to claims 2, 4, 6 and 7, the Agency found the claims were identical to previously-filed claims that were currently pending before this Office. With regard to claims 1, 3, and 8, the Agency found that Complainant’s EEO Counselor contact was untimely. Finally, with regard to claim 5, the Agency found that Complainant failed to state a claim. The instant appeal by Complainant followed. 2021001541 3 ANALYSIS AND FINDINGS Untimely Raised - Claims 1, 2, 3 and 8 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Here, the record discloses that the latest alleged discriminatory event raised by the above-numbered claims occurred in August 2019, with the remainder happening before that date. Complainant, however, did not initiate contact with an EEO Counselor until March 10, 2020, which is beyond the forty-five (45) day limitation period. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Previously Raised - Claims 6 and 7 EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency. In dismissing claims 6 and 7, the Agency determined that the claims were the same as those raised in an earlier complaint that is currently pending before this Commission. Because Complainant alleges that due to his allegedly discriminatory suspension, he was prevented from learning about or applying for job openings and his appointment as an Administrative Law Judge was not ratified, we find that he is stating the same claim as stated in his pending complaint where he alleges that his suspension was discriminatory. In the instant claim he is merely elaborating on the harm caused by such an allegedly discriminatory suspension, that harm being he was unable to have his position ratified or to apply for other positions. The underlying issue in both cases, however, is that the suspension was discriminatory. We therefore agree with the Agency that claims 6 and 7 state the same claim as a previously-filed claim. Failure to State a Claim - Claims 4 and 5 With regard to the remaining claims 4 and 5, the Commission finds that the complaints fail to state a claim under the EEOC regulations because Complainant failed to allege that he was subjected to harassment that was sufficiently severe and/or pervasive to alter the conditions of his employment. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Nor has he 2021001541 4 shown he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly, the Agency's final decision dismissing Complainant's complaint 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. 2021001541 5 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 April 29, 2021 Date
