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

Equal Employment Opportunity Commission

Dec 16, 2021

Appeal No. 2021004522 (E.E.O.C. Dec. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leandro P.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2021004522 Hearing No. 410-2020-00285X Agency No. HHS-OS-0043-2019 DISMISSAL Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative Judge’s decision dated May 26, 2021, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Public Health Advisor, GS-12, at the Agency’s Office of the Assistant Secretary for Health in Atlanta, Georgia. On September 25, 2019, Complainant filed a formal EEO complaint, that was subsequently amended, claiming that the Agency discriminated against her based on disability and in reprisal for prior protected EEO activity when: 1. Complainant’s request for reconsideration of a reasonable accommodation was allegedly delayed (April 11, 2019). 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. 2021004522 2 2. Complainant was allegedly denied telework and instructed to use leave for one day (June 19, 2019). 3. Complainant’s reasonable accommodation was allegedly denied after reconsideration (July 10, 2019). 4. The processing of a career ladder promotion to GS-13 was allegedly delayed, despite receiving Achieved Expected and Outstanding results on her 2018 and 2019 yearly PMAPs (October 8, 2019). 5. The Agency allegedly failed to accurately correct a SF-50 to reflect competitive status tenure (October 9, 2019). 6. Complainant was allegedly denied a transfer to a position due to incorrect SF-50 career status (August 27, 2019). 7. Complainant was allegedly forced to resign from her position with OASHA, due to a directed reassignment and accept a new position with the Center for Disease Control and Prevention (CDC) (November 25, 2019). After an investigation and supplemental investigation into the accepted claims, the Agency provided Complainant with copies of the reports of investigation (ROI) and notices of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Thereafter, the Agency filed a motion to dismiss the complaint, arguing that on February 23, 2021, Complainant had filed a civil action in the U.S. District Court for the Northern District of Georgia (Civil Action No. 1:21-ev-00755-JPB-JSA) that raised the same claims as those alleged in her administrative EEO complaint. As such, the Agency argued the Commission no longer had jurisdiction of these matters pursuant to 29 C.F.R. § 1614.107(a)(3). On May 10, 2021, the AJ issued a notice of proposed dismissal. Both Complainant and the Agency submitted responses. On May 26, 2021, the AJ denied the Agency’s motion to dismiss. The AJ determined that Complainant had filed a complaint before the U.S. District Court for the Northern District of Georgia, but she subsequently withdrew the civil suit on May 13, 2021, and no longer had a pending civil action. Nevertheless, the AJ dismissed the formal complaint. Specifically, the AJ determined that Complainant elected to appeal the same claims at issue to the Merit Systems Protection Board (MSPB) and dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(4). The instant appeal followed. On appeal, Complainant argues, in pertinent part, that the claims in the instant complaint are similar but not identical to the claims she raised before the MSPB. 2021004522 3 ANALYSIS AND FINDINGS Based on our review of the record, we find that Complainant’s complaints are not properly before the Commission on appeal as the record reflects that Complainant previously raised the instant complaint before the MSPB. The record indicates that Complainant filed a complaint with the MSPB alleging retaliation, failure to promote her for two consecutive years, failure to provide reasonable accommodations for her disability, failure to correct her SF-50 to accurately reflect her career status which has rendered her ineligible for several positions for which she has applied, and she was forced to resign from her OASHA position. Consequently, Complainant raised the same claims in her MSPB complaint as she raises in the instant complaint. Here, the MSPB Administrative Judge (MSPB AJ) dismissed Complainant’s appeal, identified as Docket Number AT-1221-20-0827-W-1, on November 2, 2020, without prejudice in response to the Agency’s motion stating that the MSPB lacked authority under Lucia v. Securities Exchange Commission, 138 S. Ct. 2044 (2018), to adjudicate Complainant’s appeal.2 The MSPB AJ indicated that the Lucia matter was currently pending before the Board and represented that Complainant’s appeal would be automatically refiled by the Board on April 28, 2022. Complainant was given the option to pursue her EEO complaint through the Commission or through the MSPB process by filing a Petition for Review before the MSPB AJ’s dismissal became final on December 7, 2020. Here, the record reflects that on December 7, 2020, Complainant filed a Petition for Review of the MSPB’s underlying decision before the U.S. Court of Appeals for the Federal Circuit.3 Consequently, Complainant did not initially seek review before the Commission. While Complainant’s Petition for Review was pending before the Federal Circuit, Complainant filed another Petition for Review before the Commission on January 6, 2021. The Commission dismissed Complainant’s Petition and determined that the complaint was still pending before the MSPB. See Stefan H. v. Dep’t of Health and Human Services, EEOC Petition No. 2021001804 (Mar. 18, 2021). Consequently, the instant complaint is still before the MSPB pending review by the Federal Circuit. Therefore, Complainant’s appeal in this matter is DISMISSED. 2 In Lucia, the U.S. Supreme Court determined that administrative law judges at the Social Securities Exchange Commission were officers of the United States and were subject to the appointment clause of the Constitution. Because the MSPB does not currently have an active Board, the Agency has not been able to weigh in on challenges regarding the authority of its MSBP administrative judges. 3 The U.S. Court of Appeals for the Federal Circuit did not docket this request until February 12, 2021. 2021004522 4 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. 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). 2021004522 5 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 December 16, 2021 Date