[Redacted], Samuel L., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor (Mine Safety & Health Administration), Agency.

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2020002294 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Samuel L.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor (Mine Safety & Health Administration), Agency. Appeal No. 2020002294 Hearing No. 530-2019-00181X Agency No. 18-03-053 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 14, 2020 notice of final action concerning his equal employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFIFRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Office Automation Assistant, GS-7, for the Agency’s Mine Safety and Health Administration (MSHA), National Air and Dust Laboratory (NADL) in Mount Hope, West Virginia. During the relevant time, the Division Chief was Complainant’s first level supervisor (S1). Complainant’s second level supervisor was the Supervisory General Engineer. 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. 2020002294 2 On February 20, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to disparate treatment and a hostile work environment on the bases of disability (Post Traumatic Stress Disorder, anxiety, stress, depression), age (40), and in reprisal for prior protected EEO activity when: 1. On August 9, 2017, Complainant's supervisor called him into his office, spoke to him in "a very angry tone" about his extended lunch break, and “punched both his fists” on his desk while speaking to him; 2. On August 15, 2017, Complainant's supervisor notified him that he would be put on a “leave without pay” status because he had not reported for duty; 3. On August 21, 2017, Complainant's request for reasonable accommodation in the form of telework was denied; 4. From August 2017 through November 2017, Complainant's supervisor emailed him multiple times, which he found to be harassing; 5. On September 6, 2017, Complainant's supervisor informed him that his request for advanced annual and sick leave would not be extended by thirty days; 6. On October 2, 2017, Complainant discovered that his supervisor disclosed his confidential medical information, in violation of the Rehabilitation Act, to a lab technician supervisor via a mailed memorandum about his Family Medical Leave Act (FMLA) request; 7. On November 8, 2017, a Human Resources Specialist notified Complainant that he would no longer be accommodated with leave, and that he needed to return to work after exhausting his Leave Without Pay, or else he could be considered Absent Without Leave or medically disqualified; 8. On December 9, 2017, Complainant was constructively discharged; and 9. On April 10, 2018, Complainant discovered that a source at MSHA had provided incorrect information about him to a background investigator. The Agency accepted claims 1-9 as comprising an allegation of a hostile work environment. The Agency accepted claims 7-9 as allegations of disparate treatment. 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). Complainant requested a hearing. In a September 9, 2019 Memorandum and Order, the parties were Ordered to respond to each other’s Initial Conference Report by September 16, 2019. 2020002294 3 The Order advised, “Complainant shall address the Agency’s legitimate nondiscriminatory reasons and identify any pretext.” On September 9, 2019, Complainant provided a list of exhibits and the dates of voice transcripts he had submitted in his own Initial Conference Report. On September 16, 2019, the Agency timely submitted a Motion to Dismiss. On September 18, 2019, Complainant submitted his opposition to the Agency’s motion. The AJ issued a decision without a hearing on September 23, 2019. The AJ noted Complainant’s September 18, 2019 untimely submission would not be considered. In her decision, the AJ found Complainant failed to establish or identify the existence of evidence or testimony that if obtained would, support a finding that the Agency’s actions were motivated by discrimination. The AJ entered summary judgment in favor of the Agency. The Agency subsequently issued a final action on January 14, 2020. The Agency fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). At the outset, we find the AJ did not abuse her discretion in declining to consider Complainant’s untimely September 18, 2019 submission. Upon review, we find the record in the present case was fully developed. Moreover, we note that on appeal Complainant does not challenge the definition of the claims as listed in the AJ’s decision. In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2020002294 4 Specifically, regarding claim 6, we find the AJ properly determined that the Agency provided legitimate, nondiscriminatory reasons for its actions. Specifically, S1 enlisted the assistance of Person A to help deliver the memo approving Complainant’s FMLA leave as S1 was on leave from September 28, 2017 through October 6, 2017, when Human Resources requested he deliver the memo and S2 instructed it be done as soon as possible. The Agency stated Person A (Branch Chief), in his capacity as Acting Division Chief for S1, was only given access to the memo because he was a needed link in “the FMLA decision-making chain.” Further, there is no indication that the employee who served as courier to obtain S1’s signature had any access to Complainant’s medical information. Thus, we find that Complainant failed to show that the Agency’s actions were a pretext for prohibited discrimination. Moreover, regarding claim 6 we find Complainant failed to establish an improper disclosure of his confidential medical information. 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 establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s notice of final action fully implementing the AJ’s 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. 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. 2020002294 5 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. 2020002294 6 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 June 8, 2021 Date