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

Equal Employment Opportunity Commission

Jul 28, 2021

Appeal No. 2020002838 (E.E.O.C. Jul. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Helen G.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Request No. 2021002880 Appeal No. 2020002838 Hearing No. 531-2017-00281X Agency No. HHS-FDACDER-078-16 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020002838 (March 17, 2021). 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). During the relevant period, Complainant worked for the Agency as a Consumer Safety Officer, GS-0696-12, at the Agency’s Division of Microbiology Assessment, Office of Process and Facilities, Office of Pharmaceutical Quality, Center of Drug Evaluation and Research in Silver Spring, Maryland. 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. 2021002880 2 On June 2, 2016, Complainant filed a formal complaint alleging that the Agency unlawfully retaliated against her for prior EEO activity when, on April 6, 2016, the Acting Manager of the Division of Microbiology Assessment suspended Complainant from duty without pay for a period of 14 calendar days, from April 7, 2016 to April 20, 2016. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing and Complainant timely responded. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. In his decision, the AJ determined that the Agency proffered legitimate, non-discriminatory reasons for suspending Complainant. The AJ further determined, “examining the evidence in the light most favorable to the Complainant, she cannot establish by a preponderance of the evidence that the Agency discriminated against her on April 6, 2016, when the Agency suspended her from duty without pay for a period of 14 calendar days …for failure to follow instructions.” In her request for reconsideration of that decision, Complainant essentially repeats the same arguments made and considered during her original appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. 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. 2020002838 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. 2021002880 3 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 July 28, 2021 Date