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

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2021001335 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lamar M.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2021001335 Agency No. HHS-ACL-0001-2020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 30, 2020, dismissing a formal 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 During the relevant period at issue, Complainant worked as a Senior Social Science Analyst, GS- 0101-15, at the Agency’s National Institute of Disability, Independent Living & Rehabilitation Research in Washington, D.C. On May 11, 2020, Complainant filed a formal EEO complaint alleging the Agency subjected him to discrimination based on disability, age, and in reprisal for prior EEO activity when: 1. his previously approved reasonable accommodation for a full-time interpreter was discontinued; 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. 2021001335 2 2. he was not selected for the position of Associate Director, Office of Healthcare Information and Counseling, GS-0301-15, advertised under Vacancy Announcement HHS-ACL-MP-19-10603721; 3. he was not selected for the position of Program Manager, State Health Insurance Assistance Program and the Medicare Improvements for Patients and Provider Act, GS- 0301-15, advertised under Vacancy Announcement HHS-ACL-19-MP-10603721; and 4. he was not selected for the position of Program Manager, Senior Medicare Patrol, GS- 0301-15, advertised under Vacancy Announcement HHS-ACL-MP-19-10603721. In its October 30, 2020 final decision, the Agency dismissed claims 1 - 4, pursuant to 29 C.F.R. § 1614.107(a)(1), for stating the same claims that were raised in prior EEO complaints. The Agency found that in the instant case Complainant raised the same matters already being addressed in EEOC Hearing No. 570-2017-00643X/Agency Case No. HHS-ACL-0001-2016 and EEOC Hearing No. 570-2020-01078X/Agency Case No. HHS-ACL-001-2019, which are currently awaiting a hearing before an EEOC Administrative Judge. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a formal complaint that states the same claims that is pending before or has been decided by the Commission or the Agency. To be dismissed as the “same claim,” the present formal complaint and prior complaints must have involved identical matters. It has long been established that “identical” does not mean “similar.” The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Department of the Air Force, EEOC Appeal No. 01955890 (April 5, 1996) rev’d on other grounds, EEOC Request No. 05960524 (April 24, 1997). The Agency dismissed the current complaint by concluding it raised the same matter that was raised in two prior formal complaints (EEOC Hearing No. 570-2017-00643X/Agency Case No. HHS-ACL-0001-2016 and EEOC Hearing No. 570-2020-01078X/Agency Case No. HHS-ACL- 0001-2019). Here, we find that the Agency properly dismissed all the subject claims on the grounds that the matter raised therein is the same matter that was raised in a prior formal complaint (Agency Case No. HHS-ACL-001-2019) alleging the same claims. Specifically, the Report of Investigation in the above-referenced prior complaint addresses the non-selections under Vacancy Announcement HHS-ACL-19-MP-1063721. Moreover, the issue of the discontinuation of a full- time interpreter was similarly addressed in that prior complaint. 2021001335 3 The Agency’s decision to dismiss the subject complaint for the reasons discussed above 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. 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. 2021001335 4 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 May 24, 2021 Date