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

Equal Employment Opportunity Commission

Jul 28, 2021

Appeal No. 2020001973 (E.E.O.C. Jul. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Robert F.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (National Institutes of Health), Agency. Request No. 2021003021 Appeal No. 2020001973 Hearing No. 531-2017-00347 Agency No. HHS-NIH-ORF-126-16 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020001973 (March 29, 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 was employed by the Agency as a General Engineer in its Division of Technical Resources, Office of Research Facilities, Office of the Director, NIH in Bethesda, Maryland. Complainant filed a complaint alleging discrimination and harassment based on age (over 40) and in reprisal for engaging in prior EEO activity when: 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. 2021003021 2 a. in 2013 and ongoing since April 2016, he was passed over for assignment of duties, awards, denied telework, compensatory damages, overtime and training; b. he was assigned tasks outside of his ordinary duties to supervise a “difficult coworker;” c. on February 6, 2015, his job duties were changed from practicing engineer to those of an unskilled laborer; d. in December 2015, he learned that a position he expressed interest in was cancelled and later filled with a younger individual; e. on April 19, 2016, he was not considered to serve as Acting Chief, and on April 26, 2016, he was not selected to serve as the Maximo2 Administrator; f. on May 3, 2016, his work duties were removed, his managers suggested that he search for a different job outside of the NIH if he was not happy there, and reassigned him to the Distribution Branch; g. on June 7, 2016, he learned that he was denied a cash or time off bonus award; h. on August 25, 2016, he was threatened to “stop what he was doing, or he and his family would get hurt” by a co-worker; and i. in November 2016, he was not selected for the Supervisory General Engineer position (NIH-ORF-MP-16-1798570).3 After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. However, 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 instance appeal followed. In EEOC Appeal No. 2020001973, the Commission determined that the evidence of record supported the AJ’s decision that Complainant’s discrimination claims had not been proven. In the request for reconsideration of that decision, Complainant essentially repeats the same arguments made and considered during his 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. 2 Maximo is a type of computer software. 3 Subsequently, Complainant withdrew age as a basis, as well as claims (a) and (g). 2021003021 3 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. 2020001973 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. 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