[Redacted], Brendon L., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003842 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brendon L.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor, Agency. Appeal No. 2020003842 Agency No. 19-09-127 DECISION On June 20, 2020, 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 May 26, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND Since 2007, Complainant worked at the Agency’s Office of Labor Management Standards (OLMS). Complainant had been an Investigator for the OLMS Honolulu Resident where he worked under a supervisory investigator (female, Native Hawaiian/Asian). In September 2018, the Agency promoted Complainant to Supervisory Investigator, GS-13, and assigned him to the District Office in Los Angeles, California, where his first-line manager was a district director (male, Black). On July 8, 2019, Complainant notified an EEO Counselor that the Agency subjected him to discrimination. Informal efforts at resolution were not successful. On August 8, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him 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 2020003842 based on race (Asian), sex (male), and in reprisal for prior protected activity (being deposed as witness in another employee’s EEO cases in October 2018) when: 1. Management officials delayed their approval of his May 1, 2019 leave request (for the period of (October 15 to November 5, 2019) until July 29, 2019, even though Complainant submitted it months in advance and other employees have their leave requests approved promptly. 2. On May 8, 2019, management required Complainant to break-up a long leave request into two periods of leave, which was never required previously, thus depriving him of the continuous period of leave to travel abroad that he had enjoyed in previous years. 3. On May 10, 2019, a coworker told Complainant that his September 2018 promotion to a GS-13 position was a “favor” from management that was designed to induce him to conceal discrimination against a co-worker that he witnessed when he testified in a deposition in his case on October 4, 2018. 4. On July 1, 2019, management denied a leave request that Complainant made, even though the denial resulted in his inability to use “use or lose” leave. 5. On August 22, 2019, during the fiscal year-end staff meeting, a management official publicly complimented and gave exclusive credit to two co-workers for completion of the Compliance Audit Program Investigations in Arizona and did not mention Complainant, even though he also worked on those investigations. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency found no discrimination or retaliation was established. The instant appeal followed. On appeal, Complainant’s brief detailed both past and ongoing problems with Agency management. In general, Complainant states that his supervision had favored Hispanics and females and that, but for his protected statuses, he would have promoted from GS-12 to GS-13 much earlier. Complainant states that management mistreated him after he testified in another EEO case alleging that the Agency discriminatorily delayed reassigning a coworker who was also an OLMS investigator. Before giving testimony, Complainant explains that he was promoted for purposes of inducing him to support management when deposed. Complainant inferred that the Agency was displeased with his testimony and the outcome of the co-worker’s EEO complaint. Complainant has been a federal employee for approximately 18 years and stated that, in prior years, extended leave requests were promptly approved when requested in advance. 3 2020003842 Complainant asserts, however, that after the EEO deposition, the Agency effectively disrupted his regular annual family travel plans. Complainant also claims that he was falsely accused of a lack of candor before he was vindicated through a union grievance proceeding. Complainant details additional discriminatory events including where his manager directed last-minute changes on reports, pushed-forward deadlines, and made onerous demands for medical documentation although Complainant already submitted a doctor’s note confirming Complainant was absent because of COVID-19 symptoms. 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). We note that Complainant declined to respond to the notice of his right to request a hearing. In so doing, Complainant waived the opportunity to have his case reviewed by an EEOC AJ. We agree with the Agency when it found legitimate reasons for the disputed actions were proffered by management witnesses. Regarding Claims 1 and 2, which involve the same leave requests, Complainant has failed to prove, with preponderant evidence, that the Agency mangers were unlawfully motivated when they delayed approving his leave or when his leave was eventually split into two periods. Complainant’s supervisor stated that she met with Complainant in May 2019, shortly after he submitted his leave request for the period of October 15 to November 5, 2019, and told him that his leave could not be approved six months in advance because it was impossible to predict the office’s workload so far into the future. According to the supervisor, Complainant offered “on his own accord” to divide his leave request into two separate periods: one in October 2019, which the supervisor verbally approved immediately, and one in December 2019, which the supervisor asked to approve closer to the date. Another supervisor present at the meeting confirmed these events. On June 25, 2019, Complainant submitted a new leave request reflecting the two leave periods. On July 1, 2019, the supervisor met with Complainant and again confirmed that his October leave request had been approved, but stated that his December leave request was still being considered because the office workload for December had not yet been determined. On July 26, 2019, Complainant’s December leave request was approved via email. Regarding Claim 3, we find Complainant meritoriously earned promotion based on handling an increased workload. There is simply no evidence to support Complainant’s speculation that the promotion was to convince him not to testify for his coworker in an EEO matter. 4 2020003842 Regarding Claim 4, the record clarified that, Complainant had faced a situation where he risked the possibility of having to incur a use-or-lose leave balance. However, the Agency management ultimately approved a sufficient amount of leave so that Complainant was not penalized for carrying an overage of annual leave hours by the end of the fiscal year. We have not been persuaded that the aforementioned rationales are pretexts or unworthy of credence. Regarding Claim 5, we likewise find non-discriminatory reasons were articulated for Complainant not receiving individual recognition for his role in an important team project. Specifically, management witnesses testified that Complainant’s teammates on that particular project were recognized because they were less experienced investigators who needed more encouragement than Complainant. To the extent that Complainant desired further recognition, the record indicates that it was merely an Agency oversight for which Complainant lacks evidence of retaliatory animus. The one-time lack of recognition that Complainant has described was not severe or pervasive. Finally, Complainant on appeal has raised arguments regarding entirely different adverse personnel actions (e.g. denial of COVID19-related sick leave, wrongful charge for lack of candor). We advise Complainant that if he decides to pursue such other matters, then he must initiate a new and separate complaint by contacting an EEO Counselor. CONCLUSION Based on a thorough review of the record and the contentions on appeal we AFFIRM the Agency’s final decision finding no discrimination. 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9 § VII.B (Aug. 5, 2015). 5 2020003842 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 request and arguments to the Director, OFO, EEOC, 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 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. 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). 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his 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. 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. 6 2020003842 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 November 4, 2021 Date