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

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2020003024 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lucy K.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2020003024 Hearing No. 550-2019-00293X Agency No. HHS-FDAORAPA-064-18 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 7, 2020 final order concerning her equal employment opportunity (EEO) complaint alleging 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. At the time of events giving rise to this complaint, Complainant worked as a Lab Support Technician, GS-0303-07, at the Agency’s San Francisco Laboratory in Alameda, California. On June 13, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal (prior protected opposition to acts of employment discrimination) when: 1. Since February 20, 2018, when Complainant was deliberately assaulted on the job by a government contract employee, management has failed to take action to protect her safety on the job and had allowed the contractor who assaulted her to continue to work onsite at her work location. The Acting Lab Director, her second-line supervisor (S2) had failed to follow up with Complainant regarding the outcome of 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. 2020003024 2 the investigation concerning the incident and made the decision not to take action against the contract employee, causing her to fear for her life when on the job; and 2. In February 2018, Complainant was informed by her first-line supervisor (S1) that S2 no longer wanted her to perform the duties within her Lab Support Specialist position description (PD) but to focus solely on timekeeping duties as her regular job duties. After having been assigned to perform duties normally assigned to a timekeeper’s PD, in addition to her regular job duties, for five years, she had now been reassigned the timekeeper duties on a permanent basis despite her many requests to resume her Lab Specialist duties. Complainant was the only employee working under S2 whose job duties had been reassigned, and no other Lab Support Specialist had been required to perform timekeeper duties for five continuous years. The Agency investigated the complaint and notified Complainant of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding no discrimination or reprisal. In the decision, as to the first incident, the AJ found that Complainant had identified several occurrences that she characterized as harassment by the contract employee, who was also female. Complainant alleged that on February 20, 2018, the contractor lowered her shoulder and hit her as she was walking down a corridor in the opposite direction. The contract employee claimed that she did not see Complainant, that she would never intentionally bump a coworker, and had offered to apologize to Complainant. The matter was referred to the Federal Protective Service for further investigation, which determined that the matter was an accident based on witness statements. Complainant also alleged that on April 9, 2018, the contractor approached her in a manner suggesting that she would bump her again, and that on April 24, 2018, the contractor aimed her cell phone at Complainant, giving Complainant the impression that the contractor was making a video of her. S1 contacted the contractor’s employer and suggested that the contractor work remotely because she believed that the contractor had instigated several incidents with Complainant. The last occurrence took place on June 14, 2018, when the contractor entered the copy room while Complainant was there and stood right behind her. There is no evidence of any additional incidents. As to the second claim, the AJ found that Complainant had held timekeeping responsibilities for several years, and that an employee who had been responsible for handling the timecards of 27 employees had unexpectedly resigned in February 2018. Those timecards had been redistributed to Complainant and two other employees, with Complainant receiving seven and the other two employees receiving 10 each. The assignments were made by a supervisory administrative assistant, who pointed out that timekeeping duties were within the scope of Complainant’s job description and those of other Laboratory Support Technicians. S1 informed Complainant that she needed to handle the extra timekeeping responsibilities until a replacement for the departed employee could be hired. In April 2018, S1 reported that Complaint was only spending between 10 percent and 15 percent of her time processing timecards. 2020003024 3 In July 2018, after the Administrative Specialist hired an additional staff member, the seven timecards that Complainant was handling were transferred to the new employee. The AJ concluded that Complainant failed to show that any of the incidents were based on discriminatory or retaliatory animus. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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 2020003024 4 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). 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. 2020003024 5 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