[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 31, 2021

Appeal No. 2021001983 (E.E.O.C. Aug. 31, 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. 2021001983 Hearing Nos. 531-2019-00124X, 531-2019-00440X, 531-2019-00206X Agency Nos. HHS-FDACTP-125-17, HHS-FDACTP-132-18, HHS-FDACTP-053-18 DECISION On February 5, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), regarding the Agency’s January 14, 2021 final order 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 Final Agency Decision (FAD), pursuant to our regulation at 29 C.F.R. § 1614.501, fully implementing the EEOC Administrative Judge’s (AJ) December 4, 2019 Final Decision and Order. BACKGROUND 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. 2021001983 2 At the time of events giving rise to this complaint, Complainant worked as a Regulatory Counsel at the Agency’s Center for Tobacco Products (CTP), Office of Compliance and Enforcement (OCE), Division of Business Operations, Contracts Branch in Silver Spring, Maryland. Complainant filed three formal complaints alleging that the Agency discriminated against him on the bases of disability (anxiety, severe depression, severe bereavement, sleep apnea, insomnia, migraine headaches, and chronic knee conditions), sex (male), and reprisal for prior protected EEO activity. Specifically, Complainant alleged he suffered discrimination when: Complaint 1 (Agency No. HHS-FDACTP-125-17, Hearing No. 531-2019-00124X) 1. On August 31, 2017, the Supervisor (S1), Consumer Safety, CTP, threatened him with disciplinary or adverse action after he emailed the Food and Drug Administration (FDA) Ethics Office, CTP Center Director, and the FDA Commissioner regarding the denial of training opportunities; 2. on August 29, 2017, S1 failed to respond to his request for an interim reasonable accommodation (RA); 3. on August 24, 2017, S1 denied his request to attend training during FY2017 for professional development opportunities from February 2017 thru August 2017; 4. on August 3, 2017 and August 22, 2017, S1 directed him to inform a co-worker (a GS-9) every time he goes on leave; 5. S1 threatened him with adverse action after describing his leave requests for medical treatment as an unexcused absence and "AWOL"; 6. S1 does not take action on his leave requests made in advance via ITAS, before he goes on leave; 7. His core hours were adjusted because he resides in California, which is in Pacific Coastal Time (PST). S1 made the personal choice to hold weekly branch meetings every Wednesday from 10:00-11:00 a.m. Eastern Standard Time (EST) outside of Complainant’s core hours; 8. on August 11, 2017, his request for an explanation from S1, regarding the reason for requiring him to revise an assignment that he had turned in a month prior, was not addressed; 9. S1 has refused to make a decision regarding his August 4, 2017, request for change of official duty station in a timely manner; and, 2021001983 3 10. The Agency has allowed non-disabled current and former employees 100% telework or remotely but has failed to make a decision regarding his ability to do so. Complaint 2 (Agency No. HHS-FDACTP-132-18, Hearing No. 531-2019-00440X) 1. On August 29, 2018, the Supervisory Regulatory Counsel (S2), OCE, CTP, denied his August 14, 2018, interim request of 100% telework from his residence in San Diego, CA. He received an email from S2 stating that since he failed to return to duty, no consideration for this accommodation would be forthcoming. The Agency failed to provide effective accommodations for his Service-Connected disabilities; 2. The Agency "unlawfully" placed him in a non-duty status and failed to engage in the interactive process related to his August 14, 2018, reasonable accommodation (RA) request; 3. on May 30, 2018, he requested a RA to interview for a Supervisory, Regulatory Counsel position, Vacancy Announcement FDA-CTP-MP-18-10198236. He applied for the GS- 14 position on May 9, 2018, and the Agency did not give him an equal opportunity to compete when it denied his RA request for his interview; 4. The Agency ''unlawfully" charged him with Absent Without Leave (AWOL), from June 5, 2018, to present. He submitted medical documentation to the assigned RA Specialist in support of his May 30, 2018, RA request to use advanced sick leave; 5. The Agency "unlawfully" failed to process his May 30, 2018, RA request to use advanced sick leave pursuant to Executive Order 5396, or alternatively, the Family Medical Leave Act (FMLA); 6. The Agency "unlawfully" denied his request to use "Sick Leave and Annual Leave" pursuant to Executive Order 5396 on May 22, 2018; May 23, 2018; and May 25, 2018 and classified his status as AWOL. 7. The Agency "unlawfully" denied his April 25, 2018, request to extend his previously approved RA request to work 100% telework from his residence in San Diego, CA; and, 8. The Agency "unlawfully" forced him to serve a "de facto" indefinite suspension by classifying him in a non-duty status, without first providing him "due process" or an explanation for the Agency's actions. Complaint 3 (Agency No. HHS-FDACTP-053-18, Hearing No. 531-2019-00206X) 1. On April 27, 2018, the Supervisory Regulatory Counsel (S2), OCE, CTP, allegedly failed to engage in the interactive process, as previously agreed between Complainant and his 2021001983 4 previous supervisor, in accordance with the "plain language" of the RA, Office of Personnel Management (OPM) guidance, and the underlying reasons for his RA request; 2. on March 22, 2018, he received an email from the Contracting Officer, CTP, notifying him that he was removed from the Project Advisory Group (PAG). He was not provided with prior notification of this action, nor was he made aware of issues or concerns about his performance of his duties as PAG committee chair and member; 3. on March 21, 2018, S2 failed to ensure that he had adequate backup while he was out of the office on medical leave from March 13, 2018 through March 16, 2018; 4. on March 6, 2018, S2 denied his requests for RA when he went on work-related travel and was not provided a RA for a previously scheduled work-related travel request; 5. on February 23, 2018, he was not selected for a detail position at OCE; 6. on February 20, 2018, S2 denied his request to attend a training opportunity in San Francisco; and, 7. on February 8, 2018, S2 sent him an email regarding his conduct allegedly accusing him of being unprofessional and not performing his duties when communicating with a colleague. In September and October 2019, the parties filed Cross-Motions for Summary Judgment on the above matters. On August 24, 2020, the AJ issued her decision regarding the three complaints. In brief, the AJ dismissed: Complaint 1, claims 4, 5, 6, 7, 8 and 10; Complaint 2, claims 1, 3, and 7. However, the AJ noted these events would still be considered as evidence in the harassment claim. The AJ determined that Complainant did not establish a prima facie case for Complaint 1, claims 3, 4, 5, 6, and 8; and Complaint 2, claims 2 and 3. Complainant failed to show that the Agency’s proffered legitimate reasons were pretext for discrimination in Complaint 2, claims 5, 6, and 7; and Complaint 3, claim 3. As for the allegations that Complainant was denied a reasonable accommodation, the AJ found in the Agency’s favor in: Complaint 1, claims 2, 7, 9, and 10; Complaint 2, claims 1 and 4; and Complaint 3, claim 6. In those instances there was no genuine issues of material fact requiring a hearing, and the record revealed that the Agency did not violate the Rehab Act. In Complaint 3, claims 4, 5 and 7, the AJ concluded that the Agency did fail to provide Complainant with a reasonable accommodation. The AJ determined that the remaining claims, Complaint 1, claim 1 and Complaint 2, claim 3, would proceed to a hearing. A hearing was held on September 8 and 16, 2020. Thereafter, on September 24, 2020, the AJ issued a bench decision finding Complainant was subjected to disability discrimination in the claims that were the subject of the hearing (Complaint 1, claim 1 and Complaint 2, claim 3). The AJ also re-affirmed her earlier finding of disability discrimination in Complaint 3, claims 4, 5, and 7. Further, the AJ amended her August 24, 2020 decision by rescinding the dismissal of Complaint 2, claims 1 and 2. She went on to conclude that Complainant was discriminated against in Complaint 2, claims 1 and 2. 2021001983 5 Based on her findings, the AJ ordered a series of remedies including, in pertinent part, the following: Back pay, and related benefits. Complainant is entitled to back pay for the time frame beginning on May 21, 2018, until the effective date of his removal, subtracting any monies due to the arbitrator's award and excluding any already- dismissed issues related to his leave request in late May 2018. … The Agency is ordered to complete its backpay calculations for the relevant time period no later than 60 calendar days after the date of a final decision. … Posting. The Agency shall post a notice that a finding of reprisal and disability discrimination has been issued against the Agency both in hard copy and in electronic form within 30 days of the date this decision becomes final. The notice shall remain posted for 60 consecutive days in conspicuous places… … Compensatory damages…the Agency is ordered to pay $60,000 in non-pecuniary damages… … Attorney Fees and Costs…I find costs were appropriate and award Complainant costs totaling $1,232.53. On December 4, 2020, the AJ issued an Order Entering Judgment, incorporating her August 24, 2020 Decision and September 24, 2020 Bench Decision. On January 14, 20212, the Agency issued a decision stating that it would fully implement the AJ’s December 4, 2020 Order. On February 3, 2021, Complainant emailed the AJ requesting that she take action against the Agency for its failure to adhere to the terms of the December 4, 2020 decision regarding back pay calculations. The Agency responded the same day noting that it had until March 15, 2021 to issue its determination.3 CONTENTIONS ON APPEAL On February 5, 2021, Complainant initiated an appeal with the Commission. Complainant does not provide an appeal brief to the Commission. Instead, he submits a copy of a judicial sanctions request that he provided to the AJ, seeking sanctions for the Agency’s purportedly contumacious conduct. Specifically, Complainant contends the Agency acted in bad faith when it intentionally failed to timely implement the AJ’s December 4, 2020 Order Entering Judgment. Additionally, 2 The Agency initially issued the FAD on January 13, 2021, but it was revised and updated. 3 Since the revised FAD was issued on January 14, 2021, and the 60th day was March 14, 2021, a Sunday, the Agency’s determinations were due no later than March 15, 2021. 2021001983 6 Complainant asserts that the Agency failed to comply with the AJ’s Posting order when it issued an inconspicuous digital announcement at the bottom of an email. In its March 8, 2021 response, the Agency asserts that Complainant’s appeal is premature as it had until March 15, 2021 to fully comply. Additionally, 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. Complainant reiterates, in a March 12, 2021 reply, that sanctions are appropriate. Additionally, he alleges that the Agency has failed to process his award of $60,000 in non-compensatory damages and $1,232.53 in fees. On April 19, 2021, Complainant contacted the Agency and challenged its back-pay calculation based on the lack of award for Complaint 2, claim 6 and requested that the Agency provide “full relief.” The Agency explained, on April 20, 2021, that it believed Complainant was not entitled to back pay for May 22, 23, or 25, 2018, under the AJ’s decision and order as those dates were part of Complaint 2, claim 6, which was dismissed. Thereafter, on May 7, 2021, Complainant provided copies of emails reflecting his request to seek back pay for May 22, 23, or 25, 2018 to the Commission. The Agency asserts that the matter is not properly before the Commission pursuant to 29 C.F.R. § 1614.504(a), and Complainant is simply not entitled to receive back pay for a dismissed claim. ANALYSIS As a preliminary matter, the Agency noted in its various appeal responses that the matter before the Commission was not ripe. The Agency correctly asserted that it had until March 15, 2021 to comply with the AJ’s order and decision. Accordingly, at the time of Complainant’s February 5, 2021 appeal, and March 12, 2021 counter-response, the matter was not yet ripe. However, we find that the matter is now appropriate for review. Complainant’s Sanction Request We note that although Complainant’s sanction request was directed to the AJ, we shall address the request herein. Complainant contends that the Agency engaged in contumacious conduct when it unduly delayed issuing determinations in accordance with the AJ’s December 4, 2021 Order Entering Judgment. Complainant also contested the manner in which the Agency complied with the AJ’s electronic format posting order. Commission regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6, 2014). 2021001983 7 Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052, “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Due to the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. In this matter, the AJ specified that “the Agency is ordered to complete its backpay calculations for the relevant time period no later than 60 calendar days after the date of a final decision.” The Agency issued a revised final decision on January 14, 2021. The 60-day time limit expired on March 14, 2021, a Sunday, making the determinations due no later than March 15, 2021. Complainant incorrectly assumed the AJ was referencing the date of her December 4, 2020 decision to start the 60-day countdown. However, AJ decisions only become final decisions after 40 days without an Agency final action, which was not the case here. See 29 C.F.R. 1614.110. While the record demonstrates that the Agency missed the March 15, 2021 deadline, by April 19, 2021, Complainant had received the determinations and submitted an email to the Agency contesting the determinations. Although the Agency has not provided an explanation for the untimely issuance of the determinations, Complainant has not shown that he was prejudiced by the delay. Regarding the electronic posting order, Complainant took issue with the placement of the posting notice at the end of an email, making it inconspicuous. However, the AJ’s order simply required that the Agency provide a post in electronic format, which is clearly did. There is nothing regarding where within the posting the notice had to be, so long as it was included and conspicuous. Complainant has not made a showing that placement towards the end of an email is inherently inconspicuous. In this case, we find that the Agency did not act in a manner to warrant sanctions. 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). In this matter, Complainant filed a general appeal on February 5, 2021 wherein he failed to provide an initial appellate statement. Instead, his initial documents were a copy of the sanctions request he submitted to the AJ seeking sanctions against the Agency for contumacious conduct. That statement detailed Complainant’s belief that the Agency acted in bad faith when it intentionally failed to timely implement the AJ’s December 4, 2020 Final Decision and Order. It did not specify that he was appealing any of the substance of the AJ’s Final Decision and Order, which the Agency had fully adopted. It was not until April 19, 2021, that Complainant argued he was entitled to a finding in his favor, and thus back pay, for Complaint 2, claim 6. However, this matter was previously dismissed by the AJ in her August 24, 2020 Decision, confirmed in her 2021001983 8 September 24, 2020 Bench Decision, and then re-confirmed in the December 4, 2021 Order Entering Judgment. Upon review, we note that the Agency issued its FAD and notice of appeal on January 14, 2021. The FAD 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. 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 not sanction the Agency. To the extent that the Agency has not already done so, it is ORDERED to ensure compliance with the AJ’s December 4, 2021 Order Entering Judgment as follows below. ORDER To the extent that the Agency has not already done so, it is ordered to comply with the AJ’s December 4, 2021 Order Entering Judgment, which included: 1. The Agency is ordered to pay Complainant back pay for the time frame beginning on May 21, 2018, until the effective date of his removal, subtracting any monies due to the arbitrator's award and excluding any already-dismissed issues related to his leave request in late May 2018. Complainant is also to be paid all benefits pursuant to the Back Pay Act, 5 U.S.C. Section 5596, during this time period, including leave restoration and appropriate retirement benefits, such as Agency contributions to his Thrift Savings Plan. 2. The Agency is ordered to pay Complainant $60,000 in non-pecuniary compensatory damages. 3. The Agency is ordered to pay $1,232.53 in Costs to Complainant. 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. 2021001983 9 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. 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 2021001983 10 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 (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. 2021001983 11 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 31, 2021 Date