Cedrick S.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor (Mine Safety & Health Administration), Agency.

Equal Employment Opportunity Commission

May 3, 2018

0120161832 (E.E.O.C. May. 3, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Cedrick S.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor
(Mine Safety & Health Administration),
Agency.

Appeal No. 0120161832

Agency No. 14-03-047

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 1, 2016, finding no discrimination
regarding his complaint alleging employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, we AFFIRM the Agency’s final decision finding of no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a Mine Inspector, GS-9, at
the Agency’s Mine Safety and Health Administration (MSHA) in Mt. Hope, West Virginia. On
March 14, 2014, Complainant filed his formal complaint alleging discrimination based on
disability (cerebral palsy) when on December 17, 2013, he was terminated from his position as
Mine Inspector (GS-9) during his probationary period.

After completion of the investigation of the complaint, Complainant initially requested an EEOC
Administrative Judge hearing but later withdrew the request and requested a final Agency
decision. The Agency then issued its final Agency decision concluding that it asserted
legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.

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.
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ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission's own assessment of the record and
its interpretation of the law").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that Complainant was hired on February
26, 2013, as a Mine Inspector, GS-9, subject to a one-year probationary period. As a Mine
Inspector, Complainant was to identify and evaluate unsafe mine conditions and cite violations.

Complainant’s supervisor (S1) indicated that on December 17, 2013, he issued Complainant a
notice of termination during his probationary period at issue due to his failure to meet the
performance expectations of his position. S1 acknowledged that Complainant did well at the
Academy and passed three modules of training and citation and order writing. However, S1
indicated that based on his observation and the observation of other inspectors, Complainant’s
taking of field notes, which were a crucial part of his position, was insufficient and his notes
would not support the violations that were cited/issued after inspections in which he participated.
S1 indicated that on four or five occasions, S1 counseled Complainant about his insufficient
notes, returned inspection notes to him for correction, and provided him with guidance and
examples; but he still failed to complete them accurately. S1 denied he was aware of
Complainant’s disability and denied terminating Complainant based on his disability.
Complainant acknowledged that S1 did notify him of his insufficient notes and he told S1 that he
would work on it.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Furthermore, we note that Complainant has not claimed that he was denied a
reasonable accommodation and he has not claimed that he was required to perform his duties
beyond his medical restrictions. We find that Complainant failed to show that he was treated
less favorably than a similarly situated employee under similar circumstances or that the
Agency’s reason for terminating him during his probationary period was a pretext for
discrimination. Based on the foregoing, we find that Complainant has failed to show that the
Agency’s action was motivated by discrimination as he alleged.

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CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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. 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

May 3, 2018
Date