[Redacted], Cary J, 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Jun 23, 2021

Appeal No. 2020002874 (E.E.O.C. Jun. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cary J,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2020002874 Agency No. HHS-OS-0011-2019 DECISION Complainant filed a purported appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Supervisory Management Specialist in Washington, D.C. On February 21, 2019, Complainant filed a formal complaint alleging that he was subjected to discrimination based on sex, age, and in reprisal (for opposing discriminatory practices). By letter dated April 5, 2019, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: 1. On September 19, 2018, Complainant requested ASPR human resources leadership to investigate harassment claims which were reported by other employees. 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. 2020002874 2 2. On December 7, 2018, Complainant was reassigned to the Cyber Security Advisor (GS-15) position effective December 10, 2018. 3. On December 10, 2018, Complainant learned that management impeded his ability to compete for the Director, Office of Security, Intelligence and Information Management (SIIM) (GS-15) position. 4. On January 7, 2019, Complainant learned that another employee outside [of the Agency] was selected for the Director, Security Intelligence and Information Management (SIIM) (GS-15) position. 5. Complainant was subjected to harassment when the following events occurred: a. In November 2018, and ongoing, management impeded Complainant’s ability to compete for a Senior Executive Service (SES) position. b. On December 4, 2018, ASPR management subjected Complainant to coercive and threatening behavior. c. On December 2018, and ongoing, ASPR management removed Complainant from participating on the ASPR senior leadership team. d. On January 7, 2019, Complainant was informed that he would be moving from his window office on the fifth floor to the building’s basement. Upon completion of an initial investigation, the Agency forwarded a copy of the Report of Investigation (ROI) and a notice of his right to elect a hearing before an EEOC Administrative Judge or a final agency decision. On September 17, 2019, Complainant requested a final decision. The Agency then conducted a supplemental investigation of certain issues and its supplemented ROI on December 5, 2019. In March 2020, Complainant filed the instant appeal. Complainant requested a default judgment in his favor because the Agency had not issued a final decision within 60 days of his September 17, 2019 request. In response, the Agency states that OFO should dismiss Complainant’s “appeal” on the grounds it is premature. The Agency sets forth that it has not yet issued a final decision in the instant matter. The Agency further asserts that EEOC should deny Complainant’s request for a default judgment. The Agency asserts that Complainant has not been harmed by the delay. The Agency further asserts it has been delayed in issuing a final decision due to an extensive backlog. The record does not contain a final agency decision and there is no evidence that the Agency has since issued a final decision while this matter has been pending before OFO. 2020002874 3 The Commission considers final decisions and does not independently consider interlocutory appeals. See Cecile T. v. Environmental Protection Agency, EEOC Appeal No. 0120161511 (Dec. 20, 2016). Thus, there is no matter over which we currently have jurisdiction.2 Accordingly, the appeal is DISMISSED because the Agency has not issued a final decision. However, we will order the Agency to issue its final decision on this matter promptly pursuant to the following Order. ORDER To the extent it has not already done so, the Agency is ORDERED to issue a final decision within thirty (30) calendar days from the date this decision is issued, pursuant to 29 C.F.R. § 1614.110(b). The Agency shall provide a copy of its decision to Complainant and to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. 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. 2 To the extent Complainant requests default judgment, we decline to address this matter herein because Complainant’s appeal is premature. He may raise this matter once the Agency issues a final decision and if he chooses to file an appeal with EEOC at that time. 2020002874 4 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 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. 2020002874 5 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. 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 June 23, 2021 Date