[Redacted], Anton S., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Aug 2, 2021

Appeal No. 2020001104 (E.E.O.C. Aug. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anton S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020001104 Agency No. BOP-2018-0083 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 22, 2019, final decision concerning his equal employment opportunity (EEO) 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, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Officer, GS- 7, for the Agency’s Federal Correctional Institution (FCI) in Elton, Ohio. On January 25, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (intestinal gastritis) when: From November 23, 20162, through January 25, 2018, Complainant was subjected to discrimination and/or a hostile work environment when management mishandled his 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. 2 The Agency accepted the case with a date range from February 23, 2017, through January 25, 2018. However, the Agency investigated the November 23, 2016 event and during the 2020001104 2 medical documents by placing them in an unsecured work mailbox, and an unauthorized person contacted his medical care provider. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On October 22, 2019, the Agency issued a final decision concluding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency noted that in November 2016, the Lieutenant asked Complainant to resubmit some medical documentation related to an advanced sick leave request because the original information had been addressed to the wrong party. The Lieutenant noted Complainant asked the Lieutenant to place his medical records into his FCI office mailbox so that he could work on correcting the information. Complainant acknowledged that he requested the Lieutenant return the medical records in his FCI office mailbox. Complainant stated he found his records “in a pile” in his personal mailbox, to which all employees had access. The Lieutenant stated that he returned the documents in a folder and placed the folder in Complainant’s office mailbox, which is in a locked room. The Lieutenant noted Complainant had to resubmit his requests because they continued to cite erroneous dates and named an incorrect manager. The Captain stated the FCI employee mailroom is secured at all times, and the mail slots are so small that the contents of the mailboxes could be viewed only if someone pulled the contents out of the mailboxes. The Agency found its managers treated Complainant’s medical records properly. The Agency noted the Lieutenant said it was ordinary for managers to request documentation for employees who wish to use three or more days of advanced sick leave, as Complainant did. The Agency noted no evidence that management singled Complainant out for excessive scrutiny regarding his request for advanced medical leave. Regarding the unauthorized medical contact issue, the Agency determined it was reasonable, legitimate, and nondiscriminatory for a manager to contact a medical care provider when investigating an allegation of a falsified medical document. The Lieutenant noted Complainant admitted that he had written the wrong date and the phone number on a document from his medical provider’s office. The Lieutenant stated that he cleared Complainant of the falsification charge because he confirmed the signature that appeared on the form was the signature of the medical provider’s office manager, and thus valid. The Agency noted no evidence showed the Lieutenant acted with prohibited discriminatory intent, especially given that the Lieutenant later cleared Complainant of the charge. Complainant filed the instant appeal. investigation Complainant clarified he did not realize that this event was a violation until October 26, 2017. 2020001104 3 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, at Chapter 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, we find Complainant failed to show that the Agency’s articulated reasons were a pretext for discrimination. Regarding the Agency’s placement of his medical information in his office mailbox, Complainant acknowledges this was done at his own request. Further, the request for Complainant to resubmit information was based on the fact that it was routed to the wrong supervisor and contained incorrect dates. Additionally, we find Complainant failed to establish an improper disclosure of his confidential medical information. Complainant’s medical provider was contacted as part of an investigation that Complainant falsified a medical document. The Lieutenant noted that the investigation was referred to the Office of Internal Affairs for the Bureau of Prisons and was then referred back to the institution for a local investigation. The Lieutenant stated it was referred to him, as he is the one who conducts those investigations at the institution. The Lieutenant noted that Complainant admitted the date on the document submitted was incorrect and that Complainant was the one who filled out the date and included the incorrect phone number for his physician. Further, we find Complainant failed to show he was treated differently than similarly situated individuals regarding the processing of his request for advanced sick leave. Moreover, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2020001104 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). 2020001104 5 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. 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 2, 2021 Date