Rock v. Army, No. 8:2010cv00829 - Document 22 (D. Md. 2011)

Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 5/25/11. (eb2, Chambers)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : STEVEN H. ROCK : v. : Civil Action No. DKC 10-0829 : SECRETARY JOHN MCHUGH : MEMORANDUM OPINION Presently disability and discrimination alternatively, McHugh.1 pending for action summary (ECF No. 8). ready for is judgment a resolution motion filed by to in this dismiss, Defendant or John Also pending is a motion to seal filed by Plaintiff Steven H. Rock (ECF No. 15), and a motion to seal filed by Defendant (ECF No. 20). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendant s motion for summary judgment will be granted, but the motions to seal will be granted in part and denied in part. I. Background This case arises from the termination of Plaintiff, Steven H. Rock, from the Division of Plans, Training, Mobilization, and 1 Pete Geren was named as the original defendant in this case, but he was succeeded as Secretary of the Army by John McHugh on September 21, 2009. Accordingly John McHugh is the now the named Defendant. Security at the United States Army Research Laboratory ( ARL ) in Adelphi, Maryland. From 1989 to 2006, Plaintiff worked as an industrial hygienist at ARL, where he managed the occupational health program. investigating hygiene (ECF No. 14-40, Ex. 36, at 1). potential hazards, occupational Plaintiff health inspected and In addition to and industrial evaluated ARL laboratories and the Blossom Point Research Facility ( BPRF ) to ensure that safely. good employees (ECF No. 8-1, at 5). employee alcoholism. that handled who was toxic was hazardous chemicals Plaintiff believes that he was a terminated (ECF No. 14, at 3). Plaintiff and discharged because he suffered from Defendant, however, maintains for his unsatisfactory performance, frequent unscheduled and unauthorized leave since 2001, and lack of cooperation. During his tenure at (ECF No. 8-1, at 5). ARL, Plaintiff worked under the management of several supervisors, the first of whom was Cynthia L. Tootle. In June 2001, Tootle required Plaintiff to follow a special leave procedure2 because his frequent and unscheduled 2 The special leave procedure required Plaintiff to obtain prior approval before taking sick leave for prearranged medical appointments. In the event of an unexpected and incapacitating illness or injury, he was required to contact Tootle personally to request sick leave. Upon his return to work, he was required to provide written documentation from an attending physician or licensed medical practitioner. (ECF No. 8-5 ¶ 3a). 2 use of continues office. sick to leave is hamper unacceptable the performance (ECF No. 8-5 ¶¶ 2-3). and has hampered and efficiency of and his Tootle cautioned that failure to follow these procedures may serve as a basis for disciplinary action. (Id. ¶ 3c). In addition, she advised Plaintiff that [i]f some personal situation or problem is contributing to your frequent unscheduled absences from work, the Wellness Center is available to assist you. (Id. ¶ 4). Tootle rated Plaintiff s performance from October 1, 2000, to September 1, 2001, as unsatisfactory, 3 indicating that his work was inadequate and untimely, and that he working relationships with other ARL employees.4 Furthermore, Plaintiff did not take had strained (ECF No. 8-6). responsibility and required more supervision than would be expected of someone of his position. informal (Id.) performance Tootle also placed Plaintiff under an improvement still failed to meet deadlines. plan ( PIP ), but Plaintiff (Id.) 3 The unsatisfactory category ranges from zero to fortynine points. Plaintiff earned forty-eight points. (ECF No. 810). 4 Specifically, Tootle wrote, Plaintiff did not meet all his performance objectives, was not effective in his working relationships [and] has set up an adversarial relationship with ARL laboratory employees. (ECF No. 8-6). 3 Plaintiff s next supervisor, Robert E. Chase, placed him on formal PIP on March 21, 2002. (See ECF No. 8-7). Chase found Plaintiff s performance unacceptable 5 and gave him 120 days to improve. (Id. ¶ 2). In addition, he counseled Plaintiff to seek help at the ARL Wellness Center if his poor performance was caused by Subsequently, personal or health Plaintiff s problems. performance (Id. improved successfully completed PIP on August 22, 2002. ¶ 8). and he (ECF No. 8-8; ECF No. 14-12, Ex. 8). Chase rated Plaintiff s performance from October September 1, 2001, to 30, (ECF No. 8-10; ECF No. 14-33, Ex. 29). 2002, as successful. 6 On September 19, 2002, however, Chase questioned Plaintiff s use of leave, and reminded him, [i]f you continue with the alternate leave schedule I will have to scrutinize your leave usage more closely. (ECF No. 8- 9). In 2003, Michael P. Stebbing became Plaintiff s supervisor. (See ECF No. 8-1, at 6). Stebbing rated Plaintiff s performance 5 Chase found Plaintiff s technical competence, cooperation, communications, and management of time and resources skills inadequate. (ECF No. 8-7 ¶ 4). 6 To earn a score of successful, an employee had to obtain a score between fifty and sixty-nine points. Plaintiff scored fifty-nine points. (ECF No. 8-10). 4 from January 21, 2003, to September 30, 2003, as successful, 7 (ECF No. 8-11; ECF No. 14-34, Ex. 30), and gave him a rating of excellence for his performance from February 8, 2004, to June 30, 2004.8 (ECF No. 8-13; ECF No. 14-35, Ex. 31). Plaintiff s duties changed in July 2004. time, Plaintiff was solely responsible Prior to that for industrial hygiene programs at ARL and BPRF. managing the (ECF No. 8-13). In July 2004, however, Plaintiff s duties increased and he began to work under Services. the supervision (ECF No. 8-14). of the Director of Emergency Plaintiff received a performance plan on August 10, 2004, that detailed six objectives for July 1, 2004 to June 30, 2005. (ECF No. 8-14; ECF No. 14-10, Ex. 6). In addition to serving as the industrial hygienist at ARL and BPRF, Plaintiff also worked on force protection issues, such as developing policies and procedures to deal with emergencies caused by potential terrorist attacks. (ECF No. 8-14; on leave ECF No. 14-10, Ex. 6). On July restriction. 7 12, 2004, Stebbing (ECF No. 8-12 ¶ 2). Plaintiff earned ECF No. 14-34, Ex. 30). fifty-four 8 placed Plaintiff Stebbing informed Plaintiff points. (ECF No. 8-11; Plaintiff was commended for meeting 75% or more of his performance objectives. (ECF No. 8-13, at 2). 5 that he had not been dependable and that his excessive and irregular absences organization. 9 have (Id. ¶ 1). had an adverse impact to the Stebbing then required Plaintiff to obtain prior approval before taking leave and to notify him by email before leaving for and after returning from lunch. (Id. ¶¶ 2-3). According to Plaintiff, he attempted to detoxify himself from January to June 2005. (ECF No. 8-3, at 8). During this period, he suffered from depression and had trouble getting out of bed. (Id. at 8-9). Plaintiff alleges in his complaint that he informed Stebbing in January that he began receiving medical treatment for his alcoholism from the Agency s physician, Dr. Doina Zuba, and (ECF No. 1 ¶ 12). of his attempt to detoxify himself. He offered contradictory testimony during a fact-finding investigation, however, stating that [d]uring my times that I called in sick I explained to Mr. Stebbing not that I had alcoholism, but that I was going through the depression. (ECF No 8-3, at 10). Plaintiff believes that his alcoholism began work to affect his performance in February 2005. (ECF No. 8-3, at 11). 9 In particular, Stebbing admonished Plaintiff for taking lunches that are longer than half an hour, and consistently in the one to two hour range. (ECF No. 8-12 ¶ 3). 6 By February 2005, Plaintiff had stopped working on force protection issues and resumed working industrial hygienist at ARL and BPRF. exclusively as the (ECF No. 8-3, at 188-89). Stebbing issued Plaintiff a performance plan containing fourteen detailed objectives hygienist. relating to his role as the industrial (ECF No. 8-15; ECF No. 14-11, Ex. 7). On April 15, 2005, Stebbing again placed Plaintiff on leave restriction. Stebbing s annual (See ECF No. 8-16). decision leave, were poor Among the reasons cited for Plaintiff s time exhaustion management skills, of sick and and taking excessively long lunch breaks outside of normal lunch hours.10 (Id. ¶ 3). before Stebbing required Plaintiff to seek prior approval taking leave and to present certification appropriate medical practitioners upon his return. from (Id. ¶ 4). In addition, Plaintiff was to notify Stebbing whenever he left his office for more than twenty-minute periods. (Id. ¶ 5). Plaintiff was again advised that the ARL Wellness Center was available to provide assistance. 10 (Id. ¶ 6). On April 26, 2005, Specifically, [a]pproximately three fifths of [Plaintiff s] time was charged Leave Without Pay (LWOP) as [he] had exhausted all [his] sick and annual leave. A review of [his] leave records for 12 out of the 16 pay periods from 1 Jul 2004 through 28 Feb 2005 (not including mid-Dec 2004 through Jan 2005), reveals that [he has] taken unscheduled leave 60 percent of the time. (ECF No. 8-16 ¶ 3a). 7 Stebbing emailed performing well, Plaintiff, that he informing must him the follow that he leave was not restriction requirements, and that he failed to complete his performance objectives for March 2005. On May detailing 19, complete his 2005, poor reports in (ECF No. 8-17). Stebbing wrote performance, a timely Plaintiff which a included manner, memorandum failing submitting to incomplete reports, failing to conduct requisite samples, and failing to submit attendance and absence records. (ECF No. 8-18 ¶¶ 1-3). Stebbing cautioned Plaintiff, [w]ithout a substantial change in your work performance, you will likely be placed in a [PIP] after this rating period ends on June 30, 2005, and concluded, [this memorandum] serves to document that your performance to date continues to be unsuccessful. overall (Id. ¶ 4). Plaintiff s performance did not improve, and on June 24, 2005, he received a written reprimand from Stebbing for his continued frequent insubordination. and unscheduled leave . . . and (ECF No. 8-19 ¶ 2; ECF No. 14-16, Ex. 12). Stebbing again advised Plaintiff that the ARL Wellness Center was available to assist him and warned him that any deviation from leave procedures may result in further disciplinary action such as suspension from Federal Service. 10). (ECF No. 8-10 ¶¶ 9- According to Plaintiff, he was ill on June 14, 2005, on 8 June 28, 2005, and on July 19, 2005, but it is unclear whether Stebbing was aware of his illness. 50, 51). (See ECF No. 14, Exs. 48, At Plaintiff s behest, Dr. Doina Zuba, a doctor at ARL who worked with Plaintiff but was not his treating physician, wrote an email to Stebbing on July 29, 2005, in which she discussed Plaintiff s health: He is still not out of all the consequences of his addiction, but miraculously his lab results are better, and he claims he feels much better. He asked me on [Tuesday] to email you something regarding his absences due to many appointments he had with the doctors, and not being able to get every time a note for you. (ECF No. 8-28; ECF No. 14-26, Ex. 22). In September 2005, Plaintiff was moved from a three-window office to a cubicle that he shared with a secretary. ECF No. 14-8, Plaintiff at was 4). From hospitalized January for 2 to January alcohol-related (ECF Nos. 8-1, at 9; ECF No. 14-57, Ex. 52). 20, (See 2006, illnesses. Stebbing attempted to determine the cause of Plaintiff s illness by contacting his wife, but she refused to disclose his alcoholism. at 23-24). (ECF No. 8-3, On February 2, 2006, Plaintiff applied to become a leave recipient. (ECF No. 14-44, Ex. 40). On February 15, 2006, Stebbing notified Plaintiff of his unacceptable performance and placed him on PIP. ECF No. 14-13, Ex. 9). (ECF No. 8-20; According to Stebbing, Plaintiff failed 9 to submit 40% his reports timely, failed to develop comprehensive industrial hygiene implementation plans for ARL and BPRF, failed to document industrial hygiene health hazard assessments, and used uncalibrated equipment to measure samples. (ECF No. 8-20, at 1-5). Plaintiff subsequently underwent multiple, unsuccessful PIP counseling sessions from February 15, 2006 to May 12, 2006. (See ECF Nos. 8-21, 8-22, 8-23). On June 13, 2006, Plaintiff first contacted the EEOC. ECF No. 8-1, at 12; ECF No. 14-8, at 4). (See On July 26, 2006, Plaintiff received a notice of right to file a formal complaint. (See ECF No. 8-29, at 3). Plaintiff filed a formal EEOC complaint on August 9, 2006, alleging disability discrimination. (ECF No. 8-29; ECF No. 14). The EEOC accepted the claim for investigation 2006. on August 17, (ECF No. 14, at 26). Plaintiff alleged that he was harassed by Stebbing because: (1) he had not received a rating or performance plan for that year; (2) he did not receive a performance plan for February through June 2006; (3) he did not receive a performance plan for fiscal year 2004 restriction until February during March 2005; or (4) April he was 2005; (5) placed he on leave received a written reprimand for not following leave restriction procedures in May 2005; September 2005. and (6) he was moved (Id.) 10 to a smaller office in When Stebbing retired in 2006, Joseph successor, became Plaintiff s supervisor. F. Watson, his On August 30, 2006, Watson drafted a notice of Plaintiff s proposed removal from federal service for failure to perform at an acceptable level of competence. particular, industrial (ECF No. 8-26; ECF No. 14-23, Ex. 19). Watson cited hygiene Plaintiff s reports on time, failure to failure to In submit complete requisite chemical sampling, failure to develop a respiratory protection program, failure to develop a standard operating procedure for laboratory hood testing, and refusal to use the health hazard Plaintiff information amended retaliation his against module. (Id.) EEOC complaint Watson, which investigation on September 6, 2006. to the The include EEOC next a day, claim accepted of for (ECF No. 14-31, Ex. 27). On October 26, 2006, Plaintiff was terminated for failure to perform at an acceptable level of competence. 27; ECF No. 14-24, Ex. 20). (ECF No. 8- An administrative fact-finding conference took place on March 22, 2007, during which Plaintiff admitted he did not inform Stebbing that he was an alcoholic, and Watson maintained he was unaware that Plaintiff suffered from alcoholism. (See ECF No. 8-1, at 11-12; ECF No. 8-3, at 80; ECF No. 14, Exs. 43-46). Stebbing testified that he had a suspicion that Plaintiff had an alcohol problem in the spring 11 of 2005 but that Plaintiff never admitted he had an alcohol problem, nor did he request any accommodations. (ECF No. 8-3, at 167, 173-74). Plaintiff subsequently appealed his removal to the Merit Systems Protection Board ( MSPB ), and on April 4, 2007, the parties settled their differences with a negotiated settlement agreement. The agreement replaced Plaintiff s removal for unacceptable performance with a resignation for medical reasons, made effective October 26, 2006, the day Plaintiff had been removed. (ECF No. 8-30). Under the terms of the settlement agreement, Plaintiff would be eligible for disability retirement benefits. (Id. ¶ 2). In exchange, Plaintiff would withdraw his appeal to the Merit Systems Protection Board and any other outstanding administrative complaint or appeal relating to his removal from Federal service. (Id. ¶ 3A). In addition, the settlement agreement provided that Plaintiff shall not litigate or relitigate in any forum, judicial or administrative, claims arising from his removal or resignation. any (Id.) Plaintiff did not withdraw his EEOC claim, and the EEOC issued an opinion on October 21, 2009, dismissing Plaintiff s complaint. (ECF No. 8-31). The administrative law judge ( ALJ ) determined that Plaintiff s allegations regarding his removal were barred by the terms 12 of the MSPB settlement agreement and that his claims regarding leave restrictions, the move to a untimely. claims smaller office, and the written reprimand were Furthermore, the ALJ held that even if Plaintiff s were timely and not barred by the MSPB settlement agreement, he failed to establish that he was a person with a disability. (ECF No. 8-31, at 10-11). On April 2, 2010, Plaintiff commenced the present action, alleging disability retaliation, and discrimination, hostile failure work of discrimination accommodate, environment Rehabilitation Act and Title VII.11 complains to under the In particular, Plaintiff arising from his removal from federal service, being placed on leave restriction on April 15, 2005, being issued a written reprimand in May 2005, not receiving a performance plan until February 2005, being moved to a smaller office in September 2005, and being placed on PIP in February 2006. (ECF No. 1 ¶¶ 16-20). On October 8, 2010, Defendant moved to dismiss, or in the alternative, for summary judgment. (ECF No. 8). have the also filed motions to seal 11 complaint, Both parties Defendant s Plaintiff voluntarily agreed to withdraw the Title VII claims in his opposition to the motion for summary judgment. (ECF No. 14, at 28). The court accordingly dismisses portions of count I that relate to discrimination under Title VII and count III to the extent it alleged retaliation under Title VII. (See ECF No. 1 ¶¶ 50-59). 13 motion to dismiss, Plaintiff s opposition brief, and Defendant s reply. II. (ECF Nos. 15, 20). Motion to Dismiss, or Alternatively, for Summary Judgment Defendant seeks dismissal on three grounds. First, Defendant argues that the MSPB negotiated settlement agreement bars the present action. Second, Defendant maintains that Plaintiff failed to exhaust his administrative remedies because he did not make timely contact with the EEOC. contends cases of that Plaintiff failure work environment. A. to has failed accommodate, to Lastly, Defendant establish discrimination, prima and facie hostile Plaintiff disagrees. Standard of Review Defendant has moved to dismiss or, in the alternative, for summary judgment. A court considers only the pleadings when deciding a Rule 12(b)(6) motion to dismiss. Because Defendant s motion relies extensively on matters outside the pleadings, the court will construe it as a one for summary judgment. See Fed.R.Civ.P. 12(b); see also Walker v. True, 399 F.3d 315, 319 n.2 (4th Cir. 2005); Offen v. Brenner, 553 F.Supp.2d 565, 568 (D.Md. 2008), aff d by, 334 F.App x 578 (4th Cir. 2009). A court may enter summary judgment only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter 14 of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is inappropriate if any material factual issue may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, but rather must set forth specific showing that there is a genuine issue for trial. facts Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). proof . . . will not suffice to prevent A mere scintilla of summary Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). judgment. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. at 249-50. (citations omitted). Liberty Lobby, 477 U.S. At the same time, the court must construe the facts that are presented in the light most favorable to the party opposing the motion. See Scott Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297. 15 v. B. MSPS Negotiated Settlement Agreement Defendant argues that by entering into a negotiated settlement agreement before the MSPB, Plaintiff is now barred from bringing the present action. Plaintiff does not challenge Defendant s argument but characterizes the settlement agreement as having resolved the appeal of his removal. (ECF No. 14, at 4). Title 29 C.F.R. § 1614.504(a) provides: Any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. Federal courts have held that settlement agreements are contracts between the parties, subject to rules of contract interpretation. See Campbell v. Geren, 353 F. App x 879, 882 (4th Cir. 2009)(unpublished opinion)(applying Virginia contract law to interpret the terms of an MSPB settlement agreement); Harris v. Brownless, 477 F.3d 1043, 1047 (8th Cir. 2007)( Settlement agreements, including those entered into by the government, are viewed in light of governing contract principles ); Jencks v. Modern Woodmen of Am., 479 F.3d 1261, 1266 (10th Cir. 2007)(treating a negotiated settlement agreement as a contract subject to the rules of contract interpretation). Neither party has addressed whether federal or state rules of contract interpretation should be applied here, but it makes no 16 practical difference when both federal and state contract law apply the objective theory of contracts. See Harris, 477 F.3d at 1047 n.2 (declining to determine whether federal or state law governed a negotiated settlement agreement because contract principles would be the same under state and federal law); Sheng v. Starkey Labs., Inc., 117 F.3d 1081, 1083 n.1 (8th Cir. 1997)(recognizing that courts disagree whether federal common law or state law governs settlement agreement). the interpretation of negotiated Here both Maryland and federal law apply the objective theory of contracts. N.A., 365 Md. 166, 178 (2001); See Taylor v. NationsBank, Lockheed Martin IR Imaging Sys., Inc. v. West, 108 F.3d 319, 322 (Fed.Cir. 1997). Under the unambiguous objective contract theory terms are of contract given their interpretation, plain meaning, regardless of the parties intentions at the time the contract was formed. See Nova Research, Inc. v. Penske Truck Leasing Co., 405 Md. 435, 448 (2008). contract is ordinarily a The interpretation of a written question of law for Suburban Hosp. v. Dwiggins, 324 Md. 294, 306 (1991). the court. Therefore, when interpreting a contract, the court s task is to determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. Calomiris v. Woods, 353 Md. 425, 436 17 (quoting Gen. Motors Acceptance v. Daniels, 303 Md. 254, 261 (1985)). parties The true test of what is meant is not what the to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. look to the Id. entire In its interpretation, the court must language of the agreement, not merely a portion thereof, Jones v. Hubbard, 356 Md. 513, 534-35 (1999), but parol evidence of the parties intent or meaning should not be considered unless there is an ambiguity. Beale v. Am. Nat l Lawyers Ins. Reciprocal, 379 Md. 643, 660 (2004); Bushey v. N. Assurance, 362 Md. 626, 632 (2001); see also Higgins v. Barnes, 310 Md. alter, 532, or 537 (1987)( evidence contradict a is contract inadmissible that is to vary, complete and unambiguous. ). Under the voluntarily Protection of the waived also settlement his withd[rew] Board. unambiguously Plaintiff terms appeal to 8-30 3A). (ECF No. his agreed right to to withdraw ¶ agreement, the appeal any Plaintiff Merit Plaintiff, before other the System thus, MSPB. outstanding administrative complaint or appeal relating to his removal from Federal service. (Id.) Defendant maintains that this provision was a clear reference to the EEOC complaint on which this entire action is based. (ECF No. 8-1, at 15). 18 The court does not find this provision ambiguous, although it could have been more clearly written to require Plaintiff to withdraw his EEO complaint. See Campbell, 353 F. App x at 881-82 (containing an MSPB negotiated settlement agreement specifically requiring a plaintiff relevant to waive issues of all . MSPB . . [EEO] Appeal ). rights This related provision to the clearly requires Plaintiff to abandon any administrative claims relating to his removal, complaint. which includes his then outstanding EEO The actions waived are the allegations of harassment and/or retaliation when Plaintiff did not receive performance plans, that he was placed on PIP and leave restriction, and that he was issued a written reprimand in May 2005. All of these actions relate to Plaintiff s removal and are specifically cited in his notice of removal; thus, they can each be classified as an other outstanding administrative complaint or appeal relating to his removal. If there was any doubt that this court was barred from hearing these claims, the MSPB settlement agreement also included a provision stating that Plaintiff shall not litigate or relitigate in any forum, judicial or administrative, claims arising from his removal or resignation. ¶ 3A). any (ECF No. 30 Plaintiff s claims regarding his removal, therefore, are indisputably barred. 19 On the contrary, accommodate, and his environment claims however, other are not Plaintiff s discrimination barred. failure and These hostile claims to work were not specifically raised in Plaintiff s EEOC complaint as relating to his discharge from federal employment. Furthermore, the portion of the settlement agreement barring litigation in any forum, judicial or administrative, any claims arising from his removal or resignation arising not apply because removal, Plaintiff s does and thus, cannot from his termination. these be (ECF claims predate characterized No. 8-30 ¶ as 3A). Plaintiff s claims for failure to accommodate, discrimination, and hostile work environment are therefore not barred by the settlement agreement, and the court will discuss each in turn. C. Discrimination and Hostile Work Environment Claims Defendant argues that Plaintiff s discrimination and hostile work environment claims should be dismissed for failure to exhaust administrative remedies because Plaintiff failed to make timely contact with an EEO counselor. In the alternative, Defendant contends that even assuming arguendo that Plaintiff satisfied prima the facie environment, exhaustion cases and he of requirement, he discrimination cannot rebut fails and the discriminatory reasons set forth by Defendant. 20 to establish hostile work legitimate, non- 1. Failure to Exhaust Administrative Remedies Defendant argues that Plaintiff failed to exhaust administrative remedies because he did not make timely contact with an EEOC counselor within the requisite forty-five days. (ECF No. 8-1, at 16). he failed to Plaintiff neither admits nor denies that exhaust his administrative remedies. (See ECF No. 14, at 10-12). Rather, Plaintiff urges the court to overlook the requirement because exhaustion estoppel, exhaustion and equitable reasons: subject to (2) tolling, three are requirements for because (1) waiver, Defendant has suffered no prejudice from the delay, and (3) because the Army s EEOC accepted Plaintiff s claims for investigation. (ECF No. 14, at 10-11). The Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., governs disability Rehabilitation requirements Act and discrimination claims filing are in federal subject procedures to applicable employment. the to exhaustion Title VII claims against federal employers. 29 U.S.C. § 794a(a)(1); 29 C.F.R. to § 1614.103(a). Prior filing a charge of discrimination with the EEOC, a federal civilian employee has forty-five days to initiate contact with an EEOC counselor after the occurrence of an employment 21 action or matter that he believes to be discriminatory. 29 C.F.R. § 1615.105(a)(1) states that federal employees who believe they have been discriminated against on the basis of . . . disability . . . must consult with a Counselor prior to filing a complaint in order to try to informally resolve the matter . . . within 45 days of the date of the matter alleged to be discriminatory, or in the case of personnel action, within 45 days of the effective date of the action. The forty-five day time limit may be extended, however, if the plaintiff shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 29 C.F.R. § 1614.105(a)(2). complainant may § 1614.105(d). then If the matter is not resolved, the file an EEOC charge. 29 C.F.R. The scope of the employee s right to file a federal lawsuit is determined by the contents of the EEOC charge. Jones v. Calvert Grp. Ltd., 551 F.3d 297, 300 (4th Cir. 2009). The initial inquiry under any Rehabilitation Act claim must be to ensure that all administrative prerequisites have been fulfilled, before considering the merits of the claim. 22 Plaintiff first contacted an EEOC counselor on June 13, 2006. (ECF No. 14-6, Ex. 2). Plaintiff were also August 9, 2006. Plaintiff in his EEOC complaint (See ECF No. 14-7, Ex. 3). alleges discriminatory: leave alleged The actions now challenged by that the following filed on Specifically, actions were being reassigned in July 2004, being placed on restriction in April 2005, being reprimanded a month later, being moved to a smaller office in September 2005, being placed on PIP in February 2006, and being removed from federal service in October 2006. (ECF No. 1 ¶¶ 16, 20, 23). All of these claims, aside from his removal,12 are time-barred because Plaintiff did not contact an EEOC counselor until June 2006, well after the forty-five day deadline had passed. Although exhaustion Plaintiff requirement urges for the court equitable to reasons, overlook he offers explanation as to why it would be fair or just to do so. the deadline equitable provision tolling, is before subject the to doctrine waiver, will be the no While estoppel, and applied, the plaintiff must prove that the defendant engaged in affirmative misconduct intended to mislead or deceive him into missing the deadline. See Irwin v. Dep t of Veterans Affairs, 498 U.S. 89, 12 As discussed supra 19-20, the settlement agreement bars Plaintiff from now challenging his removal. 23 96 (1990)(also noting that [f]ederal courts have typically extended equitable relief only sparingly and have generally been much less forgiving in receiving late filings when the claimant legal failed to rights. ). exercise due diligence in preserving Alternatively, Plaintiff could have his argued that he had not been notified of the time limit or was not aware of them, that he did not know that discriminatory action had occurred, or that circumstances beyond his control prevented him from contacting the counselor within the time limit. C.F.R. § 1614.105(a)(2). See 29 He did not, and in the absence of such showing, Plaintiff is not entitled to equitable relief. Furthermore, Plaintiff argues that because the Army s EEOC accepted late claims for investigation, this court, too, should excuse his untimeliness. acceptance of a tardy (ECF No. 14, at 11-12). complaint does not The EEOC s bind this court. Moreover, a federal agency does not waive its right to object to untimely filings investigation. merely Blount v. by accepting Shalala, 32 a complaint F.Supp.2d (D.Md.), aff d by, 199 F.3d 1326 (4th Cir. 1999). waiver below, argument, even if therefore, Plaintiff is meritless. had satisfied And 339, for 341 Plaintiff s as the discussed exhaustion requirements, his discrimination and hostile work environment claims fail on the merits. 24 2. Discrimination Plaintiff asserts that Defendant discriminated against him because he is an alcoholic. To establish discrimination under the Rehabilitation Act, Plaintiff must demonstrate that he: (1) has a disability; (2) is otherwise qualified for the job in question; and (3) suffered an adverse employment action solely because of his disability. Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995). The Supreme Court has stated that [a]n otherwise qualified person is one who is able to meet all of a program s requirements in spite of his handicap. Cmty. Coll. v. Davis, employment actions decisions, but 442 are rather U.S. not 397, limited encompasses 406 to any (1979). Se. Adverse ultimate employment discriminatory act or harassment that alters the terms, conditions, or benefits of Von Gunten v. Md., 243 F.3d 858, 864 (4th Cir. employment. 2001), overruled on other grounds by Burlington N. & Santa Fe Ry. v. White, terminate an unsatisfactory employee s 548 U.S. employee 53, for performance alcoholism. 67-68 poor or (2006). performance, behavior Little v. An FBI, is 1 employer may even if the related to the F.3d 255, 258-59 (4th Cir. 1993). Plaintiff argues that he is disabled either because he suffers from an actual impairment, or because he was regarded as 25 disabled. (ECF No. 14, at 13-17). Because Defendant concedes for the purpose of this motion that alcoholism is a disability, the court will assume without deciding that Plaintiff s alcoholism constitutes a disability within the meaning of the Rehabilitation Defendant do Act. not In dispute addition, whether because Plaintiff is Plaintiff an and otherwise qualified individual, the court will also assume that Plaintiff is otherwise qualified. Defendant argues that apart from Plaintiff s removal, which is barred Plaintiff from litigation suffered no by the adverse MSPB settlement employment action. agreement, Plaintiff disagrees and maintains that he suffered adverse actions when Defendant did not issue a 2005 performance appraisal, mid-year reviews, removed him from a three window office to a shared cubicle, placed him on leave restriction, placed him on AWOL, issued him an unjustified PIP, issued him a proposed termination and terminated him. (ECF No. 14, at 17). Plaintiff cites no precedent to support his contention that these actions, aside from his actual termination, in any way negatively affected the terms or conditions of his employment. On the contrary, case law supports Defendant s position that these incidents do not constitute adverse action. See Toulan v. DAP Prods., Inc., CCB- 05-2254, 2007 WL 172522, at *4 (D.Md. Jan. 17, 2007) (not having 26 a work station, being issued an Attendance Warning, and being placed on PIP are not adverse employment actions); Amirmokri v. Abraham, 437 F.Supp.2d 414, 423 (D.Md. 2006) (a formal letter of reprimand is not generally an adverse employment action); Newman v. Giant Food Inc., 187 F.Supp.2d 524, 528-29 (D.Md. 2002) (a verbal warning or counseling letter for tardy arrival to work does not constitute an adverse employment action unless it automatically affects the terms and conditions of employment). Furthermore, Defendant argues that even if these actions were adverse, they were not undertaken solely on the basis of Plaintiff s disability because Plaintiff s unaware that he suffered from alcoholism. supervisors were (ECF No. 8-1, at 28). In fact, Plaintiff himself repeatedly concedes that he never informed his supervisors of his alcoholism. Ex. 43A, at 23-25, 39, 79). (See ECF No. 14-47, Thus, Defendant could not have undertaken adverse employment actions against him on the basis of his disability, much less solely on that basis. Plaintiff thus fails to establish a prima facie case of discrimination and the court will grant summary judgment for Defendant as to the Rehabilitation Act discrimination claim. 3. Hostile Work Environment Plaintiff argues that his work environment was abusive and asserts that Defendant engaged 27 in severe and pervasive harassment by placing him on PIP; calling him while he was hospitalized; imposing special leave instructions; moving him to a smaller office; and refusing to provide him with a performance plan from 2004 to 2006, annual performance review, or a mid-year review. Defendant maintains that Plaintiff is merely alleging a series of discrete personnel actions, which cannot be the basis of a hostile work environment claim. In the alternative, Defendant argues that Plaintiff was not subjected to severe and pervasive harassment. To prove a hostile work environment claim, Plaintiff must prove: (1) he is a qualified individual with a disability; (2) he was subjected to unwelcomed harassment; (3) the harassment was based on his disability; (4) the harassment was sufficiently severe or pervasive to alter the terms, conditions, or privileges of employment, and (5) some factual basis exists to impute liability for the harassment to the employer. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. Fox v. 2001). The standard for proving an abusive work environment is intended to be a very high one because the standard is designed to filter out complaints workplace. attacking the ordinary tribulations of the Wang v. Metro. Life Ins. Co., 334 F.Supp.2d 853, 864 (D.Md. 2004) (citing Mackey v. Shalala, 360 F.3d 463, 468 (4th Cir. 2004)). The plaintiff must show that he not only 28 subjectively believed his workplace environment was hostile, but also that a objectively reasonable hostile. person Fox, 247 could F.3d perceive at 178. it To to be determine whether a reasonable person would perceive workplace conduct to be severe and pervasive, the court considers a number of factors, such as the frequency of the discriminatory conduct; its severity; humiliating, or whether a mere it is physically offensive threatening utterance; or and it whether unreasonably interferes with an employee s performance. at 178. Id. The conduct at issue must be far more severe than that of a merely unpleasant working environment, Hopkins v. Balt. Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir.), cert. denied, 519 U.S. 818 (1996), and must be sufficiently pervasive [so] as to become diffuse throughout every part of environment in which plaintiff functioned. the . . . work Schweitzer-Reschke v. Avnet, Inc., 874 F.Supp. 1187, 1195 (D.Kan. 1995). The incidents harassment. supervisors cited by Plaintiff do not constitute The record reflects no instance where Plaintiff s could be characterized as having threatened or humiliated him. In addition, Plaintiff cites no situation where his made supervisors alleged disability. any offensive utterances regarding his For harassment to be sufficiently severe or pervasive, the work place must be permeated with discriminatory 29 intimidation, ridicule, and insult. Inc., 510 U.S. 17, 21 (1993). Harris v. Forklift Sys., Discrete and isolated personnel decisions, such as the ones cited by Plaintiff, simply do not rise to the level of a hostile work environment. Pueschel v. Peters, 577 F.3d 558, 566 (4th Cir. 2009); Lewis v. D.C., 653 F.Supp.2d 64, 80 (D.D.C. 2009) (explaining that in hostile work environment consideration claims, it personnel is important decisions that to exclude lack a from linkage correlation to the claimed ground of discrimination. of Otherwise, the federal courts will become a court of personnel appeals. ). Because Plaintiff has failed to show that he suffered from severe and pervasive harassment, summary judgment for Defendant will be granted on the hostile work environment claim. D. Failure to Accommodate Defendant urges the court to dismiss Plaintiff s failure to accommodate claim for failure to exhaust. In the alternative, Defendant argues that Plaintiff fails to state a prima facie case. 1. Exhaustion of Administrative Remedies The scope of a plaintiff s right to file a federal lawsuit is determined by the contents of his EEOC charge. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). Only those discrimination claims stated in the initial charge, those 30 reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent lawsuit. Applications & Serv. Co., Thus, a claim will Evans v. Techs. 80 F.3d 954, 963 (4th generally be barred if the Cir. 1996). EEOC charge alleges discrimination on one basis, such as disability, and the formal basis. litigation See claim Talbot alleges v. discrimination United States on a Foodservice, separate Inc., 191 F.Supp.2d 637, 640-41 (D.Md. 2002) (granting summary judgment against an employee who alleged race discrimination in his EEOC charge but brought suit under both Title VII and the ADA). Generally, [c]ivil suits may not present entirely new factual bases or entirely new theories of liability not found in the initial EEOC complaint. DKC 10-0299, 2011 WL Thorn v. Sebelius, --- F.Supp.2d ---, 344127, at *8 (D.Md. Feb. 1, 2011) (rejecting the plaintiff s attempt to transform what was once a retaliation claim into a race-based discrimination claim ). Plaintiff did not explicitly raise a failure to accommodate claim before the EEOC. report that Steve Plaintiff s EEOC counselor noted in a Rock claims he does need any special accommodations, but wants to stay in the RDO program to be able to have time to [sic] doctor s appointments. Ex. 2, at 2). (ECF No. 14-6, The list of claims investigated by the EEOC also 31 did not include a failure ECF No. 14-8, Ex. 4). to accommodate claim. (See The transcript of the fact investigation conducted by the EEOC, however, reveals significant discussions regarding reasonable accommodations. (See ECF No. 14-47, Ex. 43A, at 10 (investigator questioning Plaintiff as to whether he requested any accommodations); ECF No. 14-48, Ex. 43B, at 150-52 (discussing accommodations requested by Plaintiff and Defendant s (testimony response); of Doina accommodations)). ECF Zuba No. as to 14-49, whether Ex. 44, Plaintiff at 113-18 requested In addition, the EEOC report following the Investigation discusses the fact that Plaintiff did not request accommodations. (See ECF No. 14-8, Ex. 4, at 5, 7). The court will treat claim therefore the reasonable accommodation as having been properly exhausted. 2. Substantive Claim To establish a prima facie case for failure to accommodate, Plaintiff must show: disability within (1) that he was an individual who had a the meaning [employer] had notice reasonable accommodation of of his he the statute; disability; could perform (2) (3) the that that the with essential functions of the position . . . ; and (4) that the employer refused to make such accommodations. Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001), cert. denied, 535 U.S. 933 (2002). 32 The burden to provide notice of a disability is not a great one . . . . Adequate notice simply informs the employer of both the disability and the employee s need for the accommodations for that disability. EEOC v. Fed. Express Corp., 513 F.3d 360, 369 n.5 (4th Cir.), cert. denied, 129 S.Ct. 343 (2008); see Schneider v. Giant (holding of Md., that LLC, an 389 F.App x employer s 263, knowledge 270 that (4th an Cir. 2010) employee was diabetic did not equate to notice that the employee s diabetes was so limiting as to be disabling and to require special accommodations); Huppenbauer v. May Dep t Stores Co., 99 F.3d 1130, 1996 WL 607087, at *4 (4th Cir. 1996) (unpublished table opinion) (holding that if all of an employee s coworkers knew that he had a heart condition, such knowledge would not amount to notice to the employer that the employee was so limited by a disability [v]ague as or to require conclusory special statements accommodations). revealing an Thus, unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA. Huppenbauer, 1996 WL 607087, at *6 (quoting Movisky v. Broward Cnty., 80 F.3d 445, 448 (11th Cir. 1996)). Defendant concedes for the purposes of this motion that alcoholism is a disability and the court will assume without 33 deciding that Plaintiff can satisfy his burden proof.13 of Defendant, however, contends that Plaintiff failed to prove that Defendant had notice of Plaintiff s disability and failed to show that he was denied any reasonable accommodation. counters that his supervisors knew he was Plaintiff suffering from alcoholism and argues that he did request accommodations. The record Plaintiff s does supervisors not support repeatedly Plaintiff s deny having claims. definite knowledge of Plaintiff s alcoholism, and Plaintiff admits that he never informed them that he was suffering from alcoholism. In fact, Plaintiff stated that when he was hospitalized in January 2006, My wife told me that Mr. Stebbing was calling all the time wanting to know what my medical condition was. 13 She A disability is: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). The Fourth Circuit has recognized alcoholism as a handicapping condition within the meaning of the Rehabilitation Act. Little v. FBI, 1 F.3d 255, 257 (4th Cir. 1993); Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir. 1989). To be a qualified individual with a disability, however, Plaintiff must be able to meet all of a program s requirements in spite of his handicap. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406 (1979). In Tyndall v. Nat l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994), the Fourth Circuit held that employees who cannot meet the attendance requirements of a job cannot be considered qualified individuals and explained that [i]n addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis. 34 said I cannot tell you what his medical condition is. (ECF No. 14-47, Ex. 43A, at 23-24). When Plaintiff was again hospitalized Plaintiff in early March 2006, Stebbing actually called my hospital room. number through. recalled that They would let the He was talking to me on the line about work while I was in bed at work [sic] and I told him I did not want to talk to him. (ECF No. 14-47, Ex. 43A, at 24-25). Plaintiff repeatedly acknowledged he never informed his supervisors that he suffered from alcoholism. In fact, Plaintiff told Stebbing that he suffered from depression. at 39). (ECF No. 14-47, Ex. 43A, Plaintiff also disclosed: I was depressed throughout this thing. I did not refer to alcoholism. I didn t want to. I was referring to it as as depression . . . 14 (ECF No. 14- 47, Ex. 43A, at 79). 14 INVESTIGATOR: When do you believe chain of command became aware of disabling condition? your your [PLAINTIFF]: Okay. I have a question. What does does the disabling condition refer to alcoholism or depression? INVESTIGATOR: Well, since back and forth with [PLAINTIFF]: depression. I only (ECF No. 8-3, at 80). 35 you tell kind them of go about According to Plaintiff, he confided his medical problems to Dr. Zuba, an occupational health physician at ARL. 47, Ex. 43A, at 29-30).15 (ECF No. 14- Dr. Zuba admitted to writing an email informing Stebbing that she noticed his health improvements and that Plaintiff was still not out of all the consequences of his addiction, but miraculously his lab results are better, and he claims he feels much better. (ECF No. 14-26, Ex. 22). Aside from mentioning vaguely an addiction, however, the email did not clarify what addiction Plaintiff suffered from. (Id.). Dr. Zuba denied that Plaintiff ever sought accommodations from her and testified that she never informed supervisors that he may need accommodations. Plaintiff s (ECF No. 14-49, Ex. 44, at 113-17). Stebbing knew that Plaintiff often saw doctors and was hospitalized in 2006, but did not learn that Plaintiff suffered from alcoholism until after (ECF No. 14-50, Ex. 45, at 163). he had been terminated. Stebbing admitted that he had heard from other employees in 2005 that Plaintiff may have had a drinking problem. (ECF No. 14-50, Ex. 45, at 165-67). While Stebbing acknowledged that he never asked Plaintiff to bring 15 Dr. Zuba was not Plaintiff s treating physician but a coworker in whom he confided his medical problems. (ECF No. 8-3, at 31, 82, 108, 112). 36 medical documentation regarding his condition, he instructed Plaintiff in the warning letter and reprimand letter to provide medical documentation periods of time. whenever he was absent for (ECF No. 14-50, Ex. 45, at 169). extended Stebbing admitted to receiving a few notes from Plaintiff s doctor, but they did not disclose his alcoholism. On June 28, 2005, a letter from Dr. Walcott indicated that Plaintiff was on diuretic medicine and would have to take frequent trips to the bathroom. (ECF No. 14-50, Ex. 45, at 170). 2005, stated condition. that Plaintiff And a letter dated July 19, suffered from a chronic (ECF No. 14-50, Ex. 45, at 170-71). medical Stebbing did not know whether Plaintiff had trouble working, but testified that he had a problem showing up on time on a routine basis. (ECF No. 14-50, Ex. 45, at 172). He also disclosed that Plaintiff told him on several occasions that he has difficulty sleeping. (Id.) Watson, too, denied knowledge that Plaintiff suffered from a disability. (ECF No. 14-51, Ex. 46, at 235-36). Plaintiff s own testimony uncontrovertibly establishes that his supervisors were not notified that he was an alcoholic. At most, Stebbing and Watson had unsubstantiated suspicions that Plaintiff may communications have or had an doctors alcohol notes problem. indicated None that of the these undisclosed conditions limited Plaintiff s ability to work to 37 such a disabling extent as to require accommodation. Because Plaintiff fails to establish that the Defendant was on notice of his disability, the court need not reach the question of whether he attempted to request accommodations. Accordingly, summary judgment for Defendant will be granted on the claim for failure to accommodate. III. Motions to Seal Both seal. Plaintiff and Defendant have submitted motions to A motion to seal must comply with Local Rule 105.11, which provides: Any motion seeking the sealing of pleadings, motions, exhibits or other papers to be filed in the Court record shall include (a) proposed reasons supported by specific factual representations to justify the sealing and (b) an explanation why alternatives to sealing would not provide sufficient protections. The Court will not rule upon the motion until at least 14 days after it is entered on the public docket to permit the filing of objections by interested parties. Materials that are the subject of the motion shall remain temporarily sealed pending a ruling by the Court. If the motion is denied, the party making the filing will be given an opportunity to withdraw the materials. There is a well-established common law right to inspect and copy judicial records and documents. See Nixon v. Warner Commc ns, Inc., 435 U.S. 589, 597 (1978). If competing interests outweigh the public s right of access, however, the court may, in its 38 discretion, seal those documents from the public s view. See In re Knight Pub. Co., 743 F.2d 231, 235 (4th Cir. 1984). Prior to sealing any documents, the court must provide the non-moving party with notice opportunity to object. satisfied by either of Id. the request to seal and an This notice requirement may be notifying the persons present in the courtroom or by docketing the motion reasonably in advance of deciding the issue. Id. at 234. Finally, the court should consider less drastic alternatives to sealing, such as filing redacted versions of the documents. sealing is appropriate, it If the court decides that should also provide reasons, supported by specific factual findings, for its decision to seal and for rejecting alternatives. Id. at 235. Plaintiff seeks to seal the complaint, Defendant s motion to dismiss brief, and or for summary accompanying judgment, exhibits. Plaintiff s (ECF Defendant seeks to seal its reply brief. motions are unopposed. No. opposition 15, at (ECF No. 20). 1). Both The basis for the requests to seal is that the documents contain sensitive medical information about Plaintiff. Plaintiff alleges that redaction is not a viable alternative to sealing because Plaintiff s counsel would need to redact the documents manually, which would consume a significant amount of time and expense. (ECF No. 19, at 1). 39 Although sensitive medical or personal identification information may be sealed, see Pittson Co. v. United States, 368 F.3d 385, 406 (4th Cir. 2004) (affirming decision to seal certain confidential, proprietary, commercial, or financial data that was produced under a protective order); Briggs v. Marriott Int l, Inc., 368 F.Supp.2d 461, 463 n. 1 (D.Md. 2005) (sealing sensitive medical records), aff d by, 205 F.App x 183 (2006), the scope of Plaintiff s request is too broad. In seeking to seal the complaint and the entirety of the summary judgment briefing and accompanying exhibits, Plaintiff effectively seeks to seal any reference to his alcoholism, the very basis for his claims under the Rehabilitation Act. Defendant recognizes this in his motion to seal, noting Plaintiff s entire case arises under the Rehabilitation Act, claimed disability at issue. which necessarily places his (ECF No. 20-1, at 4); cf Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992) (denying plaintiff s request to proceed anonymously where he alleged that the Postal Service fired him because he was an alcoholic in violation of the Rehabilitation Act stating [w]e find no abuse of discretion in the involved district in court's Doe's implicit disclosure conclusion does not that rise to the the stigma level necessary to overcome the presumption of openness in judicial proceedings. . . . ). Granting Plaintiff s request wholesale 40 would effectively seal the entire case, and, thus, would infringe too extensively on the public right to access court records. Plaintiff filed the complaint on April 2, 2010, but did not seek to seal it for eight months. was filed on October 8, 2010, again not Defendant s motion under seal, and Plaintiff waited another two months before seeking to seal the material. In his memorandum, Plaintiff provides a truncated list of documents he proposes sealing in the event his broader request is denied. following Specifically, sealed: (1) Plaintiff the complaint requests in its to have the entirety; (2) Defendant s Motion, Memorandum, and Exhibits 1, 26, 28 and 29; and (3) Plaintiff s Opposition, Memorandum, and Exhibits 4, 22, 24, 25, 29, 30, 40, 43A, 43B, 44, 45, 46, 48, 50, 51, 52, and 53. (ECF No. 19 ¶ 4). alcoholism but it The complaint does reference Plaintiff s does not contain detailed information regarding his medical condition, treatment, or diagnosis, and it will not be sealed, particularly because Plaintiff filed the complaint without filing a motion to seal for eight months. Likewise, Defendant s motion and accompanying memorandum and reply, along with Plaintiff s opposition and memorandum do not delve into the details of Plaintiff s condition to a degree that warrants sealing. 41 Many of the exhibits to the motions, however, do contain sensitive medical information and will be sealed. Defendant s motion for summary judgment Exhibit 1 to (ECF No. 8-3) and Exhibits 43A, 43B, 44, 45, and 46 to Plaintiff s opposition (ECF Nos. 14-47 through 14-51) are the transcripts from the EEOC investigation Plaintiff s of opposition (ECF No. 14-8). Plaintiff s is complaint. the EEOC Exhibit investigator s 4 to report. In the transcripts and investigator s report medical some detail. be sealed. Plaintiff s condition and treatment are discussed in Out of an abundance of caution these exhibits will Exhibit 26 to Defendant s memorandum and Exhibit 22 to Plaintiff s opposition are the same email from Doina Zuba to Plaintiff s (ECF Nos. supervisor 8-28 and referencing 14-26). Plaintiff s addiction . email not This does sensitive medical information and will not sealed. to Defendant s motion for summary judgment Plaintiff s MSPB settlement agreement. is contain Exhibit 28 a copy (ECF No. 8-30). of The agreement does not even reference Plaintiff s medical condition nor does it contain personal identification information and it will not summary be judgment Plaintiff s redacted sealed. EEOC is Exhibit the complaint. sensitive material 29 to decision (ECF No. such 42 as Defendant s of the 8-31). ALJ motion resolving Defendant Plaintiff s for address has or social security number and the remainder of the document does not contain sensitive will not be sealed. information, accordingly this document Exhibits 24, 25, 29, 30, 40, 48, 50, 51, 52, and 53 to Plaintiff s opposition are medical records and employer personnel identification records information that contain or detailed Plaintiff s medical personal diagnoses. (ECF Nos. 14-28, 14-29, 14-34, 14-44, 14-53, 14-55, 14-56, 1457, and 14-58). These documents will be sealed. Normally the parties would be permitted to withdraw those documents that the court declines to place under seal. Here, though, much of the material has already been publicly available for some time and withdrawal would amount to withdrawal of the entire case. IV. Conclusion For the foregoing reasons, Defendant s motion for summary judgment will be granted. part and denied in part. The motions to seal with granted in A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 43

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