[Redacted], Illa S., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services, (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Dec 16, 2021

Appeal No. 2020002942 (E.E.O.C. Dec. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Illa S.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, (National Institutes of Health), Agency. Request No. 2021004626 Appeal No. 2020002942 Agency No. HHS-NIH-NHLBI-119-17 Hearing No. 531-2019-00058X DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020002942 (August 9, 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 time, Complainant worked as an Extramural Support Assistant at the Agency’s National Heart, Lung, and Blood Institute, Division of Cardiovascular Services, in Bethesda, 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. 2 2021004626 On August 7, 2017, Complainant filed a formal EEO complaint, claiming discrimination based on race, sex, religion, color, age, and in reprisal for prior protected activity when: (1) as of June 2017, her supervisor did not attend follow up meetings to discuss a performance improvement plan issued to Complainant in March 2017; and (2) on June 23, 2017, her supervisor issued Complainant a proposed removal in retaliation for a sick leave request, stating that Complainant performance was unacceptable, for failure to adhere to the March 2017 performance improvement plan. After an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, the assigned AJ denied the hearing request, finding that Complainant repeatedly failed to comply with the AJ’s orders. Following the AJ’s remand of the complaint to the Agency, the Agency issued a final decision finding no discrimination. On appeal, in EEOC Appeal No. 2020002942, the Commission affirmed the Agency’s final decision finding the evidence of record supported the conclusion that no discrimination was established. In the instant request for reconsideration, we have carefully reviewed Complainant’s arguments. We note, however, that Complainant raised no arguments on appeal from the Agency’s final decision. The matters which Complainant raised in the instant request could readily have been raised below. We emphasize 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), Chap. 9 § VI.A (Aug. 5, 2015); 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. 2020002942 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. 3 2021004626 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 December 16, 2021 Date