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

Equal Employment Opportunity Commission

Dec 8, 2021

Appeal No. 2021003676 (E.E.O.C. Dec. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thomasina B.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2021003676 Agency No. HHS-FDAORAHQ-127-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 13, 2021, dismissing her complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Division Director/ Supervisory Education Specialist GS-1701-15 at the Agency’s Office of Regulatory Affairs, Office of Training, Education and Development facility in Rockville, Maryland. On April 15, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity when: 1. Since December 2018, Complainant has been subjected to an ongoing pattern of harassment and hostile environment by her first and second level supervisors; 2. Complainant has been denied a reasonable accommodation on an ongoing basis; 3. Complainant was deemed absent without leave (AWOL) for a total of 48 days; 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. 2021003676 2 4. Complainant’s Supervisor’s actions, including changing previously approved leave to AWOL, forced Complainant to take leave for 23 days in November and December; 5. On July 26, 2019, Complainant’s supervisor arbitrarily cancelled the Annual Division Retreat Complainant had planned for her staff one business day before employees would have traveled to the event; 6. On the same date, Complainant received an inaccurate performance review; 7. On the same date, Complainant was issued a Letter of Reprimand; 8. On August 15, 2019, Complainant was improperly marked AWOL for August 15th and 16th and her previously approved FMLA leave was actively interfered with and impeded by management; 9. After complainant was forced to work for a full day on August 16, 2019 having been blocked from entering FMLA, the AWOL designation (on that day) was later retroactively changed, without comment, to a reflect FMLA and supervisors would not remove this improper designation; 10. On August 22, 2019, Complainant was placed on a leave restriction and her telework was canceled; 11. On August 23, 2019, Complainant was demoted to a GS-14; 12. On October 7, 2019, Complainant’s supervisor rejected medical documentation provided by Complainant and tried to coerce Complainant into using FMLA instead of providing a reasonable accommodation; 13. On October 16, Complainant’s supervisors issued an official decision denying Complainant’s reasonable accommodation request; 14. On October 21, 2019, Complainant’s supervisor designated her as being AWOL; 15. On October 23, 2019, Complainant’s supervisor denied her administrative leave; 16. On November 15, 2019, Complainant’s supervisor issued a formal letter denying all of Complainant’s reasonable accommodations except for reassignment; and 17. On December 6, 2019 Complainant’s supervisor ignored Complainant’s request for a concurrence on her detail request.2 The Agency characterized the claims slightly differently, listing some of the incidents of harassment as stand-alone claims. The Agency dismissed the entire complaint on the grounds that Complainant previously filed the same claims with the Merits Systems Protection Board (MSPB). The instant appeal by Complainant followed. ANALYSIS AND FINDINGS A mixed-case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). 2 Complainant, on appeal, argues that on final matter concerning the selection for a GS-15 Senior Advisor position was improperly included by the Agency in its decision as it refers to a claim by another complainant and is unrelated to her own complaint. 2021003676 3 An aggrieved person may elect to initially file a mixed-case complaint with an agency or may file a mixed-case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). Additionally, 29 C.F.R. § 1614.107(a)(4) allows for the dismissal of complaints where a Complainant has raised the same matter in an appeal to the MSPB and has indicated that she has elected to pursue the non-EEO process. On October 15, 2019, Complainant filed an appeal to the MSPB, alleging that she had been reduced in grade from a GS-15 to a GS-14. On December 15, 2019, Complainant filed a second appeal to the MSPB, alleging that she had been repeatedly denied reasonable accommodations and that she had been effectively suspended, and that she had been subjected to a hostile work environment. These appeals are currently pending before the MSPB. Complainant, on appeal, argues that the claims raised before the MSPB “each pertain to discrete violations that are neither inextricably intertwined with each other nor with the [EEO] claims. . . . Moreover, the incidents that prompted the MSPB appeals are improper aside from the fact they constitute unlawful harassment.” We note that such an argument misconstrues the reason behind the prohibition against filing the same claims in different forums, which is to prevent possibly inconsistent results where one forum finds an Agency action to be legitimate while the other finds the opposite. The fact that there may exist more than one reason for finding an Agency action improper is irrelevant to the issue of whether or not a claim that raises the same matters in both forums should proceed at the same time. Complainant next argues that the claims are not duplicative. Following a review of the record we disagree. The record shows that Complainant filed an appeal with the MSPB on October 15, 2019, under Docket Number DC-0752-20-0050-I-1, alleging, “Reduction in grade, pay, or band.” Complainant stated that she learned of the reduction on August 23, 2019. Such a claim is duplicative of claim No. 11 in the instant complaint. Complainant included an attachment to the appeal wherein she further alleged, among other things, that her “job performance was successful until she engaged in several protected activities and the Agency promptly retaliated against her for doing so.” Among the retaliatory actions listed by Complainant was the claims that “On July 26, 2019, [Complainant’s supervisor] issued a Proposed Letter of Reprimand.” Such a claim is duplicative of claim No. 7. Complainant further alleged that, “On July 31, 2019, [her supervisor] emailed [Complainant] with the subject, “READ ME FIRST UPON YOUR RETURN TO WORK!” with new requirements for [Complainant] to meet prior to being permitted to take leave.” Such a claim is duplicative of claim No. 11 from the Agency’s dismissal, a claim which we have included in claim No. 1 herein, as part of Complainant’s harassment allegations. Complainant next alleged that, “On August 15, 2019, the Agency began charging [Complainant] AWOL even though she had FMLA hours remaining in addition to accrued leave hours.” Such a claim is duplicative of claim No. 8. Complainant next alleged that, “On August 22, 2019, [her supervisor] revoked [Complainant’s] telework and sent her a Notice of Leave Restriction dated August 21, 2019.” Such a claim is duplicative of claim No. 10. The record further shows that Complainant filed a second appeal with the MSPB on December 15, 2019, under Docket Number DC-3443-0233-I-1, alleging harassment and denial of reasonable accommodation. 2021003676 4 Complainant’s description of the incidents in that appeal are duplicative of claims 1, 2, 3, 4, 5, 9, 12, 13, 14, 15, and 16 herein. We note in this regard that in her second MSPB appeal, Complainant alleged that the denial of her reasonable accommodation request forced her to invoke FMLA leave and in her request for relief, Complainant requests reinstatement of “all leave used since July 29, 2019.” Complainant next argues that the MSPB claims have been repeatedly dismissed and that the Commission may therefore address the matters raised. Complainant further argues that Agency has argued before the MSPB that the appeals should be dismissed on the grounds that MSPB “lacked the authority to hear the cases. This was a de facto jurisdictional argument,” noting that if the MSPB dismisses an appeal for jurisdictional reasons our regulations state that “the agency shall promptly notify the individual in writing of the right to contact an EEO counselor within 45 days of receipt of this notice and to file an EEO complaint, subject to § 1614.107.” We note, however, that in both cases the dismissals have been without prejudice and the appeals have been repeatedly reinstated after 120 days. In neither case have the claims been addressed by the MSPB on the merits, nor has the matter of jurisdiction, or lack thereof, been conclusively established. Because we find that the claims are duplicative and that Complainant selected the MSPB process first, we find that the Agency properly dismissed the instant complaint. CONCLUSION The Dismissal is AFFIRMED. 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). 2021003676 5 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. 2021003676 6 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 December 8, 2021 Date