[Redacted], Earl M., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Oct 18, 2022

Appeal No. 2022001386 (E.E.O.C. Oct. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Earl M.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2022001386 Hearing No. 570-2006-00631X Agency No. OSM-20-0156 DECISION On January 13, 2022, 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 December 13, 2021, final order 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 During the period at issue, Complainant worked as a Program Analyst, Grade GS-13, at the Office of Surface Mining Reclamation and Enforcement (OSMRE), Division of Administration, located within the Agency’s headquarters, known as the Main Interior Building (MIB) in Washington, D.C. Complainant’s direct supervisor was the Administrative Division Chief (Division Chief). Complainant’s second-level supervisor was the Assistant Director for Finance and Administration (Assistant Director). Complainant’s third-level supervisor was OSMRE’s Deputy Director (Deputy Director). 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 2022001386 On December 29, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected him to unlawful retaliation for engaging in prior protected EEO activity (two prior EEO complaints in 2015 and 2018) when: 1a) The Division Chief breached his duty as his direct supervisor by failing to conduct official business and timely/properly respond to Complainant’s emails; 1b) The Division Chief issued Complainant four separate counseling statements based on alleged violations of MIB security protocols; 1c) The Division Chief issued Complainant a 10-Day proposed suspension based on alleged violation of MIB security protocols; 1d) The Division Chief changed Complainant’s leave status from ‘Workman’s Comp Leave’ to ‘Absent without Leave - Used.’ 1e) Between December 4, 2019 and December 19, 2019, the Deputy Director and Assistant Director breached their duties as Complainant’s senior-level management by failing to conduct official business and timely and/or properly respond to his emails; 1f) Between December 4, 2019 and December 19, 2019, OSMRE's Human Resources Manager breached her duty as the HR Placement Specialist and FMLA/Reasonable Accommodation Specialist by failing to conduct official business and timely and/or properly respond to Complainant's emails; 1g) On February 12, 2020, OSMRE's Employee Relations Specialist, arranged for and conducted a biased and untimely Hostile Work Environment Investigation, thereby violating Agency policy; 2) On November 5, 2019, Division Chief issued Complainant a less than favorable year-end performance appraisal and thereafter imposed upon him a Performance Improvement Plan. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. After an initial conference, the assigned AJ ordered the parties to submit dispositive motions no later than August 31, 2021. The Agency timely moved for summary judgment. On September 15, 2021, Complainant’s Counsel requested a seven-day extension to respond to the Agency’s motion. On November 3, 2021, the AJ granted Complainant an extension until November 8, 2021 to file his response. However, neither Complainant nor his Counsel did so. 3 2022001386 On November 15, 2021, the AJ granted the Agency’s motion and issued a decision without a hearing. On December 13, 2021, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where an AJ determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the AJ is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the AJ must believe the non- moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable AJ could find in favor for the non- moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant’s appeal declined to dispute the factual record nor did he or his Counsel present further evidence to challenge the adequacy of the record’s development. Regarding claims 1(b) and 1(c), the record supported the AJ’s finding that Agency management appropriately disciplined Complainant based on an audit of Division of Administration employee’s entry and exits over an extended period revealed that Complainant was consistently failing to maintain regular time and attendance. Regarding claim 1(d), Complainant took workers’ compensation leave after filing a claim while a decision concerning his workers compensation benefits was pending. Thereafter, the Department of Labor had denied Complainant’s workers’ compensation claim. As a result, the Agency then provided Complainant the option to use sick leave and annual leave to offset the workers compensation leave that the Department of Labor had denied. Complainant did not do so. As such, we concur with the AJ in that the Agency proffered a non-retaliatory reason for converting Complainant’s workers” compensation leave to AWOL. Regarding his remaining allegations, collectively they amount to a claim of retaliatory hostile work environment harassment. 4 2022001386 To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Beyond his bare assertions, we find inadequate evidence to establish that the disputed actions were motivated by unlawful retaliatory animus. In sum, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in his favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not substantiate Complainant’s allegations that the Agency retaliated against him. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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). 5 2022001386 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. 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 2022001386 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 October 18, 2022 Date