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

Equal Employment Opportunity Commission

Aug 30, 2021

Appeal No. 2020003197 (E.E.O.C. Aug. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Teddy D.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2020003197 Hearing Nos. 531-2017-00299X, 531-2018-00020X Agency Nos. HHS-FDA-CTP-050-17, HHS-FDA-CTP-120-16 DECISION On April 20, 2020, Complainant filed an appeal alleging that the Agency was in non-compliance with its December 20, 2019, Final Agency Decision (FAD) concerning his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision and finds that the Agency is in full compliance. ISSUE PRESENTED The issue is whether the Agency has complied with its FAD, pursuant to our regulation at 29 C.F.R. § 1614.501, fully implementing the EEOC Administrative Judge’s (AJ) August 13, 2019 Bench Decision, and the November 7, 2019, Order Entering Judgment and Decision. 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. 2020003197 2 BACKGROUND During the relevant time, Complainant worked as a Regulatory Counsel at the Agency’s Center for Tobacco Products, Office of Compliance and Enforcement, Division of Business Operations, Contracts Branch in Silver Spring, Maryland. Complaint 1 (Agency No. HHS-FDA-CTP-120-16, Hearing No. 531-2018-00020X) On January 9, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability (adjustment disorder, anxiety, sleep apnea, insomnia, migraine headaches), and reprisal for prior protected EEO activity when: 1. on March 24, 2017, the Director (RMO12) denied Complainant’s request for a MiFi card as part of his requested reasonable accommodation now that Complainant is on 100% work at home; and, 2. on March 24, 2017, RMO1 limited Complainant’s accommodation to a one-year period which was subject to medical review after a year. Complaint 2 (Agency No. HHS-FDA-CTP-050-17, Hearing No. 531-2017-00299X) On March 31, 2017, Complainant filed another complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of disability (adjustment disorder, anxiety, sleep apnea, insomnia, migraine headaches), race (African- American), sex (male), and reprisal for prior protected EEO activity when: 1. on March 6, 2017, the Supervisory Regulatory Counsel (S1) and RMO1 harassed Complainant because he pointed out illegal activity by the office of management by not complying with the Federal Acquisition Regulation and other relevant laws; 2. on February 14, 2017, via email, S1 accused Complainant of yelling at her over the telephone. Complainant contends, due to his disability and his 100% telework agreement, his supervisors only allowed him to participate in meetings over the telephone; 3. on January 25, 2017, Complainant was assigned contracts that have a long history of problems. When Complainant pointed out that these contracts were arbitrarily assigned to him and that his previous contracts were available, his logic was dismissed. On this same day, Complainant also learned that S1 would be his first line supervisor during his Performance Management Appraisal Program closeout. Previously, RMO1 was his first line supervisor; and, 4. on March 24, 2017 and again on April 25, 2017, RMO1 sent Complainant an email terminating his compressed work schedule (4/10). 2 Responsible Management Official (RMO). 2020003197 3 In the August 13, 2019,3 Bench Decision the AJ noted that he had previously granted summary judgment in the Agency’s favor for claims 1 and 3 of Complaint 2. Regarding the remaining claims, the AJ determined that Complainant should be provided with a MiFi card, or a reasonable substitute; full-time telework for at least two full years; and, a 4/10 work schedule. The Agency was also ordered to restore or pay Complainant 16 hours of annual leave and 10 hours of sick leave. Complainant was awarded $10,000 in nonpecuniary compensatory damages. The Agency was also required to post a notice. Regarding the RMOs, the Agency was ordered to provide four hours of training to RMO1, RMO2, RMO3, and RMO4, regarding the Agency’s obligation to provide employees reasonable accommodations. The AJ also ordered the Agency to consider disciplining said officials and to provide an explanation for its disciplinary decisions. Lastly, attorney fees and costs were to be provided following an appropriate calculation. The AJ’s decision did not provide for any potentially adverse tax consequences related to the complaints. On November 5, 2019, the AJ issued his Decision on Attorney’s Fees and Costs. The Agency was ordered to reimburse $26,693.06 to Complainant and his attorneys for attorney’s fees, and $1,855.76 to Complainant for associated costs. On November 7, 2019, the AJ issued an Order Entering Judgment and Decision (Order) that confirmed the remedies and awards as stated in the August 13, 2019 Bench Decision and the November 5, 2019 Decision on Attorney’s Fees and Costs. On December 20, 2019, the Agency issued its FAD notifying Complainant that it was adopting and fully implementing the AJ’s decision. Additionally, the FAD provided clear notice that if there was any dissatisfaction, then Complainant would need to file an appeal with the Commission within 30-calendar days of receipt of the FAD.4 On January 21, 2020, per the AJ’s order, all four RMOs completed the required four-hour course on the Reasonable Accommodation process. On March 30, 2020, per the AJ’s order, the Agency issued a memorandum stating that disciplinary action was considered, and that RMO1, RMO2, and RMO3 were verbally counseled. RMO4 moved to the Center for Disease Control (CDC) and the Agency had recommended that CDC verbally counsel RMO4 regarding the instant matter. The Agency noted that verbal counseling was deemed the most appropriate because the employees did not have past disciplinary records, were reliable and dependable staff, and there was no evidence of malicious intent. On March 30, 2020, the CDC issued a letter confirming that it had accepted the Agency’s recommendation and issued a verbal counseling to RMO4. 3 The hearing was held on July 17, 2019. A copy of the bench decision was sent to the parties on August 13, 2019. 4 Complainant confirmed receipt of the December 20, 2020 FAD on December 26, 2020. 2020003197 4 On April 15, 2020, Complainant submitted a request to the AJ to judicially sanction the Agency for non-compliance with the AJ’s November 7, 2019 Order. Complainant argued that verbal counseling of the RMOs was a direct violation and requested the AJ to sanction the Agency.5 On April 20, 2020, concluding that the Agency had not violated any of his orders, the AJ denied Complainant’s Motion. The AJ also notified Complainant of his obligation, per 29 C.F.R. § 1614.504, to first notify the Agency’s EEO office of an alleged violation within 30 days. After an unsatisfactory finding by the Agency, or after 35 days if the Agency does not act, Complainant could appeal to Commission. However, instead of contacting the Agency per 29 C.F.R. § 1614.504, on April 20, 2020, Complainant filed the instant appeal. Specifically, he alleges that the Agency’s actions regarding the discipline of the four RMOs does not comply with the AJ’s orders. On May 18, 2020, the Agency issued its final determination regarding Complainant’s motion to the AJ alleging non-compliance. The Agency concluded that it was in full compliance with the terms of the AJ’s August 13, 2019 Bench Decision and the November 7, 2019 Order. The Agency provided Complainant with appropriate appeal rights to the Commission if he was dissatisfied with the Agency’s determination. Specifically, that he must file his appeal within 30 calendar days of receipt of the determination pursuant to 29 C.F.R. § 1614.504(b). On April 13, 2021, Complainant sent an electronic mail request to the Agency requesting that the Agency compensate him $22,725.00 for the adverse tax consequences associated with his award of attorney’s fees, costs, and compensatory damages. In its April 15, 2021 response, the Agency noted that the AJ’s decision specifically did not provide for compensation of adverse tax costs and therefore Complainant was not entitled to the costs of any potential tax liability. CONTENTIONS ON APPEAL We note that on appeal, Complainant has submitted a large volume of documents that include numerous motions previously submitted the AJ. The crux of Complainant’s appeal is his assertion that the Agency is in non-compliance with the AJ’s order to consider disciplinary action for the named four RMOs; and, his belief that he is entitled to compensation for alleged tax consequences for receiving attorney’s fees, non-pecuniary damages, and costs as associated with his complaints. In its June 7, 2021 response, the Agency asserts that Complainant’s appeal is not appropriately before the Commission. The Agency notes that per EEOC Regulation 29 C.F.R. § 1614.504(a), Complainant failed to notify the Agency of the alleged noncompliance within 30 days of when he knew or should have known of the alleged noncompliance. 5 The record contains several, often duplicative, motions (April 21, 2020; May 25, 2020; August 9, and 23, 2020) that Complainant sent to the AJ requesting various sanctions related to his complaints. The record also contains the Agency’s response to each of those motions. 2020003197 5 However, should the Commission consider the request, the Agency states that the AJ did not specifically provide Complainant compensation for adverse tax consequences, and Complainant is otherwise not entitled to receive such a compensation. Regarding the disciplinary actions of the RMOs, the Agency asserts that it is in full compliance. ANALYSIS Compliance and Final Actions As a preliminary matter, we note that Complainant should have first contacted the Agency with his claim of non-compliance pursuant to 29 C.F.R. § 1614.504(a) prior to filing an appeal with the Commission. EEOC Regulation 29 C.F.R. § 1614.504(a) provides: If the complainant believes that the agency has failed to comply with the terms of a…decision, the complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance. EEOC Regulation 29 C.F.R. § 1614.504(a) provides: The agency shall resolve the matter and respond to the complainant, in writing. If the agency has not responded to the complainant, in writing, or if the complainant is not satisfied with the agency's attempt to resolve the matter, the complainant may appeal to the Commission for a determination as to whether the agency has complied with the terms of the settlement agreement or decision. The complainant may file such an appeal 35 days after he or she has served the agency with the allegations of noncompliance, but must file an appeal within 30 days of his or her receipt of an agency's determination. The complainant must serve a copy of the appeal on the agency and the agency may submit a response to the Commission within 30 days of receiving notice of the appeal. Despite Complainant’s error, we will not dismiss his appeal as the Agency has issued a determination in this matter. Regarding the Agency’s alleged non-compliance with the AJ’s order to consider disciplinary action, and explain the reasons behind its decision, we find that the Agency is in full compliance. The record demonstrates that the Agency considered a variety of factors in concluding that the four RMOs were best disciplined by verbal counseling, and promptly provided such counseling. The Agency also reached out to RMO4’s new employer, the CDC, and recommended that CDC management verbally counsel RMO4. The record demonstrates that, per the Agency’s notification, CDC management considered and completed the verbal counseling of RMO4. 2020003197 6 Timeliness of Appeal EEOC Regulation 29 C.F.R. § 1614.403(a) provides that appeals to the Commission must be filed within 30 days of receipt of the Agency's final action. Additionally, the regulations provide that if an appellant does not file an appeal within the time limits, the appeal will be dismissed as untimely. 29 C.F.R. § 1614.403(c). Regarding Complainant’s assertion that he is entitled to compensation for alleged adverse tax consequences, neither the AJ’s August 13, 2019 Bench decision nor the November 7, 2019 Order considered and/or ordered additional compensation for any potential adverse tax consequences. Complainant should have raised his dissatisfaction, regarding the absence of tax relief, by filing an appeal following the Agency’s December 20, 2019 FAD fully implementing the AJ’s decision and order. The FAD itself notified Complainant of the 30-day time-limit for filing appeals and contained an attached Form 573 appeal form. However, Complainant chose not to do so and instead waited until four months later to file his appeal on April 20, 2020. This matter is therefore untimely and will not be addressed. 29 C.F.R. § 1614.403(a), (c). CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency’s determination that it has fully complied with the AJ’s August 13, 2019 Bench decision and November 7, 2019 Order. 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 2020003197 7 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. 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. 2020003197 8 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 August 30, 2021 Date