[Redacted], Taunya P., 1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2021001491 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Taunya P.,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2021001491 Agency No. HHS-FDACDER-036-20 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning her complaint of 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. During the period at issue, Complainant was an applicant for employment with the Agency. On March 16, 2020, Complainant filed a formal EEO complaint alleging that she was subjected to discrimination on the bases of race (African American), sex (female), age, and in reprisal for prior protected activity (opposition to discrimination). By letter dated April 21, 2020, the Agency accepted Complainant’s complaint for investigation and determined that it was comprised of the following claims: 1. On an ongoing basis since on or about December 2019, the Agency failed to appropriately review [her] complete employment application record and thus unfairly and improperly disqualified [her] application. The improper review and subsequent disqualification of [her] application involved issues including, but not limited to, the Agency’s failure to appropriately apply tenure, an illegal Certificate of Eligibles, illegal Passover without OPM approval, failure to Audit the Certificate, priority considerations, and retaliation. 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. 2021001491 2 2. On January 6, 2020, [Complainant] learned that [she] had been erroneously found ineligible and therefore not selected for the position of Regulatory Counsel, GS-0301-14, advertised under vacancy announcement number FDACDER-20-MP-10619961, due to an alleged failure to meet qualification requirements related to length of specialized experience, despite [her] more than 15 years of such experience. 3. On January 6, 2020, [Complainant] learned that [she] had been erroneously found ineligible and therefore not selected for the position of Regulatory Counsel, GS-0301-13, advertised under vacancy announcement number FDACDER-20-MP-10619946, due to an alleged failure to submit the requested SF-50, despite [her] documented submission of the SF-50. 4. On a continuing basis since January 6, 2020, FDA recruitment personnel have failed to correct or explain the cited erroneous actions regarding [her] applications for vacancy announcement number FDACDER-20-MP-10619961 (GS-0301-14) and vacancy announcement number FDACDER-20-MP-10619946 (GS-0301-13), despite her January 6 and January 21, 2020 requests for correction/explanation. [Complainant] believe[s] that the Agency’s failure to respond, correct, or clarify its evaluative assessment for both positions, disclose how it reached its conclusions for the GS-14 position, and failure to confirm the processing of [her] uploaded SF-50 regarding the GS-13 position were all in retaliation and opposition to [her] EEO activity. 5. On an ongoing basis since Janaury 6, 2020, [she] alleged that the application requirements for vacancy announcement number FDACDER-20-MP-10619961 (GS-0301-14) and vacancy announcement number FDACDER-20-MP-10619946 (GS-0301-13) was discriminatorily changed after [her] applications were submitted, since, [she] contend[s] that [she] met the original requirements. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or a final agency decision (FAD). Complainant, in her submissions to the Commission’s Office of Federal Operations (OFO), asserts that she requested a FAD on July 16, 2020, but the Agency did not issue one. While the record does not contain a copy of Complainant’s request for a FAD, the Agency appears to acknowledge that Complainant did submit a request for a FAD. The record contains an email from Complainant to the Agency’s Acting Director Equal Employment Opportunity (AD) dated October 16, 2020. Therein, Complainant states that she requested a FAD on July 16, 2020, and that she had not received a decision and that the Agency was now late in issuing its FAD. AD responded to Complainant via email dated October 19, 2020. Therein, AD asserts that Complainant’s request for a FAD was forwarded to HHS, Office of Equal Opportunity, Diversity, and Inclusion and that her status request has been forwarded to the appropriate officials. Based on the foregoing, we find Complainant requested a FAD. The record, however, is devoid of evidence that the Agency actually issued a FAD. 2021001491 3 Complainant’s appeal to OFO is premature, as there is no final decision from the Agency from which to appeal. Therefore, her appeal is DISMISSED. Nonetheless, we note that EEOC Regulation 29 C.F.R.§ 1614.110(b) required the Agency to have issued its final decision within 60 calendar days of its receipt of Complainant’s request for a FAD. As the Agency appears to have failed to do so, we are ordering the Agency to issue a FAD on the matter, as set forth below. ORDER If it has not already done so, the Agency is ordered to issue its final decision on this complaint pursuant to 29 C.F.R. § 1614.110(b), no later than 45 calendar days from the date this decision is issued. The FAD shall contain appropriate appeal rights to the Commission. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2021001491 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). 2021001491 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 January 22, 2021 Date