Ismael N.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Sep 20, 2019

0120181115 (E.E.O.C. Sep. 20, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ismael N.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120181115

Hearing No. 570-2014-00356X

Agency No. FBI201100175

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s estate’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January
24, 2018 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Complainant is currently deceased,
but his estate, through counsel, is pursuing the instant appeal.

BACKGROUND

During the period at issue, Complainant worked as a Visual Information Specialist (VIS), GS-12,
at the Agency’s Forensic Imaging Unit, Forensic Sciences Support Section, Laboratory Division
in Quantico, Virginia.

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.

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On July 7, 2011, Complainant filed a formal EEO complaint.2 Complainant claimed that the
Agency discriminated against him based on race (Black), disability (retinal disorder), and/or in
reprisal for prior protected EEO activity when:

1. Agency management delayed and/or denied Complainant’s requests for
reasonable accommodation, including a request for a magnified computer screen
of at least thirty inches, good lighting, and a reduced glare environment.

2. From April 2010 through March 16, 2011, he was subjected to a hostile work
environment when:

a. from December 2010 through January 11, 2011, Agency managers
subjected Complainant to excessive scrutiny regarding his use of a
computer and his time and attendance;

b. in January 2011, Agency managers denied Complainant access to
work assignments involving Sensitive Compartmentalized Information;

c. between September 2010 and February 2011, Agency managers gave
Complainant work assignments that were different from those that his co-
workers received;

d. beginning in April 2010, Agency managers failed to address hostile
comments and treatment to which Complainant’s co-workers
subjected him.

3. On March 16, 2011, the Agency terminated Complainant’s employment.

4. Complainant was notified on April 17, 2011, that Agency management did not
select him for a GS-13 VIS position;

5. On November 18, 2015, Complainant learned that an Agency supervisor had
failed to properly store one of his medical records.

After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ).

2 The EEOC Administrative Judge determined, in orders dated July 21, 2015 and January 4,
2016, that Complainant raised other discrete acts that were time-barred or procedurally defective
because they occurred before February 2011. However, the AJ ordered that these claims be
considered as background information for Complainant’s claim of hostile work environment.
Therefore, we also discuss these claims in this decision.

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Complainant initially requested a hearing, but later Complainant’s estate later withdrew his
hearing request.3

On January 24, 2018, the Agency issued its final decision, pursuant to 29 C.F.R. § 1614.110(b),
based on the evidence developed during the investigation and concluded that no discrimination
was established.

The instant appeal followed. On appeal, Complainant’s estate, through counsel, argues that the
Agency subjected him to discrimination and a hostile work environment, and the Agency
violated the Rehabilitation Act when it denied Complainant’s requests for reasonable
accommodation and when it failed to properly maintain Complainant’s medical records.

ANALYSIS AND FINDINGS

Reasonable Accommodation – Claim 1

Under the Commission's regulations, an agency is required to make reasonable accommodation
to the known physical and mental limitations of a qualified individual with a disability unless the
agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o)
and (p).

To establish that he was denied a reasonable accommodation, Complainant must show that: (1)
he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified”
individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to
provide him with a reasonable accommodation. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act
(Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a
disability is an individual who can perform the essential functions of the position with or without
an accommodation.

Complainant testified, during an October 22, 2015 deposition, that he had a stroke in 2003 and
went on long-term disability until he began working for the Agency on April 12, 2010.
Complainant explained that he had impaired vision, short-term memory problems, and a learning
disability (slow processing words). Based on this evidence, we presume, without so finding and
for purposes of analysis only, that Complainant is an individual with a disability. In his affidavit,
Complainant stated that before he began employment at the Agency, he asked his supervisor
(“S1”) if he could visit the workplace to “check out the [work] space and to see if there are any
problems based on his disability.” However, Complainant claimed that S1 denied this request.
Complainant clarified, in his November 18, 2015 deposition, that he first notified S1 that he had
a “learning disability” on the first day he reported to work. Complainant further stated that he
informed S1 on his first day at the Agency that he would be requesting an accommodation.

3 The record indicates that Complainant died on February 6, 2016.

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Complainant stated, however, that he “didn’t go into detail . . . so [he] just told him that [he] had
limitations” and he described to S1 how he thought his limitations would have an impact upon
his job. Complainant also stated that he “may have even made a suggestion for the monitor at
that time.”

Complainant further stated in his deposition that he requested, from S1, a dual non-glare monitor
and permission to participate in the Laboratory Mentoring Program as reasonable
accommodations. Complainant explained that he was able to complete his assignments with the
regular monitor, but with “less efficiency.”

In his August 7, 2013 supplemental statement, Complainant clarified that he made his request for
a dual monitor in April/May 2010, but he believed that management “may have destroyed the
original letter.” Complainant explained that “several months later,” management requested that
he send another request and management also required that Complainant submit documentation
from his physician to justify his need for a 30-inch dual monitor. However, Complainant stated
that he was not fully accommodated because he only received a single monitor system.

Complainant further clarified that he requested entry into the Laboratory Mentoring program,
from S1, in April/May 2010, one month after he started working at the Agency. Complainant
stated that he believed that this program would “aid to helping [him] transition into the
workforce after a gap in federal employment.” Complainant further states that he requested
entry into the mentoring program two other times, in October/November 2010 after he had
received a “minimally successful” rating on his performance appraisal review, and again in
January 2011. Complainant explained that his requests were denied, and subsequently, the
Agency terminated his employment for unacceptable performance while denying him access to
the mentoring program which Complainant contends was “designed to improve performance.”

S1 testified, in his November 18, 2015 deposition, that he was aware that Complainant had a
disability before he started at the Agency because Complainant indicated on his application that
he had a disability. However, S1 explained that he did not know what specific disability
Complainant had. In his September 20, 2013 supplemental statement, S1 stated that
Complainant informed him “around four to six months” after his employment that he had a
disability “related to vision issues” and that he was “working with the EEO Office or possibly
the Laboratory Division Administrative Unit in obtaining a large computer monitor for his work
station.” S1 further testified that Complainant informed him that there “was nothing that the unit
needed to do, that the process for obtaining the monitor was underway.” However, S1 stated that
Complainant informed him in December 2010 that he “thought his paperwork has been lost
regarding his request for the monitor, but then was unclear if he had actually submitted the
paperwork, or if he did, who the request was made to.” S1 clarified that Complainant submitted
the medical documentation in December 2010, which was the “first time” S1 stated he had
“received any specific medical documentation pertaining to [Complainant’s] condition.” As a
result, S1 stated that Complainant’s requested monitor was installed in February 2011.

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The Management and Program Analyst (“MAPA”) testified, in her September 10, 2013
supplemental statement, that she served as the EEO coordinator at the Agency. The MAPA
stated that Complainant informed her in October 2010 that he had previously submitted a
reasonable accommodation request “for a large flat screen monitor for his computer shortly after
he began at the FBI.” The MAPA further stated that Complainant claimed to have submitted a
“reasonable accommodation request, but he was not specific as to when or to whom he had
provided the request for the monitor.” The MAPA explained that she had no record of any prior
requests and she had not been informed by Complainant or S1 of a reasonable accommodation
request. As a result, the MAPA stated that she requested that Complainant submit another
request “as soon as possible” with any supporting medical documentation, but Complainant did
not submit this information until “near the end of 2010.”

The record also includes two physician letters, dated May 17, 2010 and December 13, 2010,
indicating that Complainant has a retinal disorder that impairs his vision. In both letters the
physician recommended that Complainant be provided “a magnified computer screen, good
lighting, and a reduced glare environment” as well as “visual breaks” after using his eyes for
extended periods. The December 13, 2010 physician letter specified that Complainant would
need a magnified computer screen of at least 30-inches.

A report in the record indicates that Complainant’s reasonable accommodation request was
completed on February 15, 2011. The report further indicates that Complainant submitted
medical documentation dated, December 13, 2010, from his physician recommending a
magnified computer screen of at least 30 inches, good lighting, and a reduced-glare environment
to accommodate Complainant’s retinal disorder which impaired his vision. The report also
states that the Agency purchased a widescreen LCD computer monitor (30 inches), the Agency
repositioned Complainant’s computer and monitor to face away from the windows in his office,
and the Agency provided Complainant with an office space that had additional fluorescent
lighting with window shades to reduce sunlight and glare when necessary.

A policy directive on the Agency’s Laboratory Division Mentoring Program states that the
program is for “permanent LD employees who have completed their probationary period or
training program.”

Our review of the record supports that the Agency did not deny or unreasonably delay
Complainant’s reasonable accommodation requests as detailed below.

Walkthrough Request

The record fails to support a finding that the Agency violated the Rehabilitation Act when
management denied Complainant’s request to walkthrough the office prior to his start date. At
the time of this request, the nature of Complainant’s disability was unknown. S1 testified that
Complainant indicated on his application that he had a disability but that Complainant did not
specify what his disability was or what work limitations he had. The Agency’s March 22, 2010
email summarizing Complainant’s request fails to identify Complainant’s diagnosis or work
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limitations. We note that the email indicates that Complainant only speculated that he may
require a reasonable accommodation. This request, on its face, fails to meet the requirements for
a reasonable accommodation request because it does not identify a disability and its actual effect
on Complainant’s job performance.

Monitor Request

There is no indication in the record that Complainant requested a dual monitor. Several
documents in the record indicate that Complainant requested and required a magnified computer
screen which Complainant received, once he submitted the appropriate documentation. While
Complainant may have wanted a dual monitor, we note that although protected individuals are
entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily
entitled to their accommodation of choice. See EEOC Notice No. 915.002, Enforcement
Guidance on Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act (Oct. 17, 2002), Question 9. The record further supports a finding that the
Agency did not unreasonably delay completing this request. Complainant submitted his medical
documentation in December 2010, the Agency processed this request, and Complainant received
the monitor in February 2011.

Laboratory Division Mentoring Program Request

The record does not indicate that Complainant requested entry into this program as a reasonable
accommodation. Complainant stated that he wanted to participate in this program to “aid to
helping [him] transition into the workforce after a gap in federal employment.” Additionally, the
record supports a finding that Complainant was a probationary employee and was therefore not
eligible to participate in this program designed for permanent employees.

We acknowledge that Complainant testified that he submitted his initial reasonable
accommodation request to S1 in May 2010. This testimony directly conflicts with S1’s
statements that he did not receive any medical documentation regarding Complainant’s disability
until December 2010. We are left with Complainant’s version of events and that of S1 which are
completely at odds. As such, the evidence of record was at best, in equipoise. See Complainant
v. Dep't of Health and Human Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014) citing
Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sep. 13, 2013) and Brand v.
Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012).

The evidence in the record supports a finding that Complainant’s reasonable accommodation
request was limited to his request for a magnified computer screen of at least 30 inches, good
lighting, and a reduced-glare environment. The record reflects that the Agency never denied or
unreasonably delayed this reasonable accommodation request. Therefore, Complainant has not
established a violation of the Rehabilitation Act.
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Harassment/Hostile Work Environment – Claim 2

To establish a claim of harassment, Complainant must show that: (1) he is a member of the
statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based
on his statutorily protected class; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. Humphrey v. U.S. Postal Service, EEOC Appeal No.
01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11.

In other words, 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 race, disability or
because or retaliatory animus. Only if Complainant establishes both of those elements – hostility
and motive – will the question of Agency liability present itself.

Regarding claim 2(a), S1 explained, in his supplemental statement, that there was “no guaranteed
policy that allows an employee to flex and stay late instead of taking leave.” S1 stated that
Complainant had issues with reporting to work on time and on some occasions S1 would allow
Complainant to flex his time when he arrived late to work. However, S1 clarified that his
determination to allow Complainant to flex in to work “all depended on the circumstances.” S1
further clarified, in his May 24, 2016 declaration, that he would approve flex time if any
employee either provided one day’s advanced notice or if there were circumstances through no
fault of the employee (traffic on route to work) that caused the employee to arrive late. S1 stated
that Complainant “often requested flex time the same day that he arrived late to work,” and S1
granted Complainant’s flex time request “on numerous occasions” when Complainant provided a
“legitimate” reason.

S1 also acknowledged that Complainant did not have internet access when he reported to work,
but Complainant could have used a different workstation that had internet access. Nevertheless,
S1 stated that Complainant’s work assignments did not require research on the internet during
the period he did not have internet access at his workstation. S1 explained that he and other
employees did not have internet access when they first reported to work. S1 further explained
that any delay that incurred likely resulted from waiting for the IT personnel to process
Complainant’s ticket request and the IT personnel’s completion of the necessary work to
configure his workstation for internet access.

Regarding claim 2(b), S1 stated, in his supplemental statement, that Sensitive
Compartmentalized Information (SCI) access was not essential to Complainant completing his
duties as a VIS, GS-12. S1 explained that “employees are only supposed to carry SCI clearance
only if it is required in performing their duties.” S1 also noted that other employees in
Complainant’s unit also did not have SCI access.
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Regarding claim 2(c), S1 testified, in his supplemental statement, that all VISs are “held to the
same standard of deadlines with regard to their assignments” and deadlines are based on the
complexity of the assignment and grade level. S1 explained that Complainant requested to work
on advanced projects in the areas of facial imaging. S1 further explained that employees who are
assigned these projects must complete the required training as a GS-12 VIS and the supervisor
determines when an employee is suitable to complete this training. S1 stated that Complainant
had trouble completing basic tasks and was therefore not considered for advanced training in
areas that he was not responsible for. S1 acknowledged that he requested Complainant to submit
a portfolio of sketches so that S1 could determine “how well [Complainant] could capture the
human face through sketches.” However, S1 explained that Complainant took several months to
provide his submission and his work was “not of particular high quality.” Therefore, S1
determined that Complainant was not qualified to perform complex projects involving facial
imaging.

S1 also addressed Complainant’s request to accompany co-workers on two composite sketch
assignments. S1 explained that the first assignment involved a “female victim of crime who had
been traumatized” and S1 agreed with the assigned VIS employee it would be “insensitive to
bring another employee as an observer.” With the second assignment, S1 agreed with the
assigned VIS employee that it would not be appropriate to have another VIS accompany him
because the case involved an assault victim.

Regarding claim 2 (d), Complainant testified, in his supplemental statement, that S1 informed
him that the other co-workers thought that S1 only hired Complainant for the position because he
was Black, and that many white employees were perturbed that S1 selected Complainant over
them for the position. Complainant cited several instances where: (1) a co-worker indicated that
a white male applicant could have performed Complainant’s position “without missing a beat;”
(2) a co-worker falsely accused Complainant of staying a superfluous day at a conference; (3) a
co-worker refused to comply with Complainant’s request to resend a link to a training test he was
required to take and Complainant had to get the link from another employee; (4) and several co-
workers accused Complainant of sleeping on the job even though Complainant denied that he did
so despite admitting that he had been treated for sleep apnea. Complainant explained that his
co-workers would help each meet deadlines and check each other’s work but would not do the
same for him. Complainant further testified that he notified S1 daily about how other co-workers
treated him, but S1 did nothing to address his concerns.

S1 explained, in his supplemental statement, that Complainant sought to work independently
when he first started his position at the Agency. Specifically, S1 stated that he initially assigned
Complainant to shadow and work with other VISs. However, Complainant “immediately
requested that he be given his own work to do,” and insisted for three months to continue to
work independently. S1 further explained that Complainant’s co-workers perceived
Complainant as “portray[ing] himself as being above the group” because Complainant had a
master’s degree. S1 stated that co-workers complained to him that Complainant was sleeping at
his desk, and was “aloof, combative and acted as if he knew more than them because of his
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advanced degree.” S1 also explained that Complainant denied sleeping at his desk but stated that
he was just “resting his eyes.” S1 stated in his November 18, 2015 deposition that when
Complainant informed S1 that his co-workers would not help, S1 met with his employees
individually, and instructed the employees to act professionally at all times.

One of Complainant’s co-workers (“CW1”) testified, in her September 17, 2013 supplemental
statement, that S1 would “question and berate” co-workers for not helping Complainant, even
though Complainant would not accept their help. CW1 explained that she and the other
coworkers were “supportive of assisting [Complainant],” but Complainant became “combative”
with employees in his unit when offered assistance. CW1 also stated that she observed
Complainant sleeping at his workstation on “several occasions,” and she stated that she had to
wake him up when he fell asleep during a training class. CW1 further denied accusing
Complainant of overstaying a business trip. CW1 clarified that she attended a conference with
Complainant and noticed that he failed to attend one forensic art class which she would have
expected him to attend.

Another co-worker (“CW2”) testified, in his September 23, 2013 supplemental statement, that he
and his co-workers were “more than willing to assist [Complainant], however, for whatever
reason, [Complainant] seemed to always seek assistance from personnel outside of the group.”
CW2 further stated that Complainant was “aloof” and would “rarely engage the other group
members in conversations.” CW2 also explained that he observed Complainant sleeping at his
workstation.

In addition to the allegations discussed above, we note that Complainant also raised other alleged
incidents that we will include in considering Complainant’s contention that the Agency subjected
him to a hostile work environment.

2010 “Minimally Successful” rating on Performance Appraisal Report

S1 stated in his deposition, that Complainant received a minimally successful rating because he
had “issues with his organizing, planning, and coordinating.” Specifically, S1 explained that
Complainant lost work orders on and there were “at least a dozen work orders that had to be
copied” as a result from April 2010 until October/November 2010. S1 further explained that he
gave Complainant a minimally successful rating instead an unacceptable rating because he was
willing to give Complainant the “benefit of the doubt” to see if Complainant could improve.

Denied Entry Into the FBI Laboratory Mentoring Program

As previously discussed, there is no evidence that Complainant requested to participate in this
program as a reasonable accommodation. S1 explained, in his declaration, that Complainant
expressed interest, but did not ask for assistance with entering the program. However, S1 stated
that he directed Complainant to the appropriate individuals for assistance. Nevertheless, the
record supports that Complainant was ineligible for this program because he was a probationary
employee.
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Management Held Complainant to Disparate Expectations and Standards

There is no evidence, other than Complainant’s testimony, to support his claim that management
held him to different standards.

Management Charged Complainant Leave to Attend a Brown Bag Presentation

S1 stated, in his declaration, that because Complainant was attending a brown bag presentation,
it was expected that he would eat his lunch during the event. However, S1 explained that
Complainant informed him that he wanted to attend the event and then take his lunch after the
event was over. Because Complainant wanted to take his lunch break after the brown bag event,
S1 stated that he instructed Complainant that he must use leave or expect to work over his tour of
duty to make up the difference in time. S1 further stated that he applied this practice uniformly
to all employee who choose to eat lunch after a brown bag event.

Held Complainant to Different Standards Concerning Travel Reimbursement

Complainant alleged that CW1 told him and S1 that he should not be compensated for his travel
to and from attending a conference. S1 denied, in his declaration, any involvement in
Complainant’s travel reimbursement. S1 explained that employees are responsible for
completing and submitting the requisite forms requesting payment and/or reimbursement for all
expenses related to training and travel.

Taking all the evidence into consideration concerning all Complainant’s allegations proffered in
support of his discriminatory hostile work environment claim, we conclude that Complainant has
not proven that considerations of his race, disability, or retaliatory animus motivated
management’s actions toward Complainant. S1 testified that Complainant’s co-workers did not
help him because they perceived that Complainant portrayed himself as above the group. S1
further stated he instructed employees to work in a professional manner after Complainant
informed S1 of his interactions, or lack thereof, with his co-workers. Testimony from S1, CW1,
and CW2 indicate that Complainant preferred to work independently and sought assistance
outside of is division. Additionally, Complainant was not eligible to participate in the mentoring
program because he was a probationary employee. The record also supports that there was a
policy for employees to either take leave or work additional hours when employees elected to
take their lunch after a brown bag event. Lastly, there is no evidence aside from Complainant’s
statements that he was held to disparate expectations or standards, that he was treated differently
regarding SCI access, or that management treated Complainant differently concerning travel
reimbursement or with regard to time and attendance. In sum, Complainant’s hostile work
environment claim is precluded based on our findings that Complainant failed to establish that
any of the actions taken by the Agency were motivated by his protected bases. See Oakley v.
U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

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Disparate Treatment: Claims 3 and 4

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, we find that Agency management articulated legitimate, nondiscriminatory reasons for its
actions.

Regarding claim 3, S1 testified, in his supplemental statement, that he was the selecting official
who initially hired Complainant for the VIS position. However, Complainant was removed from
his position “for unacceptable performance during his probationary period.” S1 explained that
he initially assigned Complainant “very basic” assignments. However, Complainant had
difficulty meeting deadlines, planning and organizing his workload, and would “continuously
lose” copies of his assignments. On one occasion, S1 stated that Complainant “lost a classified
thumb drive that was ultimately never found.” On another occasion, S1 explained that
Complainant volunteered to complete brochures needed for an Agency exposition event
scheduled the following day. However, S1 explained that Complainant left work early the day
he accepted the assignment and reported to work late the next day which resulted in S1 having to
immediately assign another co-worker to complete the brochures. S1 stated that he and his
supervisor (“S2”) counseled Complainant on “several occasions” about his performance. By
January 2011, S1 stated that he and S2 determined that Complainant’s performance had not
improved, and Complainant failed to demonstrate that he could perform at a satisfactory level in
his position. As a result, S1 stated that he recommended to the HRD to terminate Complainant’s
employment. S1 stated that he had no involvement with completing Complainant’s SF-50 form
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but stated that he agreed with Complainant’s removal for unsatisfactory performance during a
probationary period.

S2 explained, in his September 11, 2013 supplemental statement, that S1 informed him of
Complainant’s significant performance problems a couple of months after Complainant began
employment. Specifically, S2 stated that S1 informed him of Complainant’s inability to timely
complete assignments and the “poor quality” of his work. S2 also stated that it appeared that
“[Complainant] did not have any working knowledge of some of the most basic graphic design
software, which would have been expected for his position at a GS-12 level.” S2 explained that
S1 also informed him that Complainant was “argumentative with his co-workers,” spent
“excessive time on personal calls,” and had been found by his co-workers, to be sleeping at his
desk on multiple occasions. S2 further explained that during a January 3, 2011 performance
meeting with Complainant and S1, Complainant denied that he had any performance issues. S2
stated that he recommended to S1 to contact the Laboratory Division’s Administrative Unit
about options regarding Complainant’s employment when it was determined that Complainant’s
performance issues would not improve. S2 explained that after discussions with his supervisor
(“S3”), S1, and the Laboratory Division’s Administrative Unit administrator, it was determined
that a request for Complainant’s removal during his probationary period should be forwarded to
HDR. S2 clarified that Complainant was the only employee he has ever recommended for
removal and Complainant was the “only employee under [his] supervisor who exhibited this
level of performance issues and inability to meet certain suitability requirements that warranted
removal.”

S3 explained, in his September 17, 2013 supplemental statement, that he advised S1 and S2 to
prepare an electronic communication to HDR recommending Complainant’s removal during his
probationary period. S3 further explained that the Resource Management Allocation Committee
(“RMAC”),4 comprised of himself and three other individuals, met and reviewed the electronic
communication recommending Complainant’s removal and, by consensus agreement, approved
the electronic communication to go forward. S3 stated that the decision was “based on
[Complainant’s] sustained poor level of performance, his inability to work with other unit
members, and the fact [that] despite counseling/mentoring his performance had shown no signs
of improvement.” S3 clarified that the HRD had the final decision-making authority for removal
determinations and the HRD determined to remove Complainant during his probationary period.

The Payroll Personnel Actions Processing Unit Chief (“PPAPU Chief”) denied Complainant’s
claim that his SF-50 was “an adverse performance evaluation.” The PPAPU Chief explained
that the SF-50 is not a performance evaluation and the language reflected on section 45 of
Complainant’s SF-50 is based on the OPM Guide to Processing Federal Personnel Actions.

The record includes notes, dated June 23, 2010, July 13, 2010, September 14, 2010, and October
22, 2010 indicating that Complainant misplaced work assignments on several occasions and

4 S3 explained that the RMAC met monthly to discuss personnel issues such as recommendations
for removal of Laboratory Division employees.
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received a “minimally successful” rating on his October 2010 evaluation which occurred during
his first six months at work.

A February 28, 2011 electronic communication letter to the HRD requests Complainant’s
removal due to demonstrating a lack of “suitability in conscientiousness, cooperativeness, and
initiative as well as demonstrating unprofessional behavior.” The letter details examples of
Complainant’s work deficiencies as well as Complainant’s inability to work well with his
coworkers.

Complainant’s SF-50 indicates that he was removed from his position for “unacceptable level of
performance,” effective March 16, 2011.

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination based on
Complainant’s race, disability, and reprisal for prior protected EEO activity.

Regarding claim 4, Complainant testified in his supplemental statement that he applied for a VIS,
GS-13 position with the Agency’s Directorate of Intelligence (“DI”) division in December 2010.
Complainant stated that he interviewed for the position, was selected, and received a March 14,
2011 email indicating that his new supervisor, the Selecting Official, wanted to start processing
his transfer and security papers. Complainant explained that on March 16, 2011, he was
terminated from his VIS position with the Agency’s Laboratory Division. Complainant stated
that he received an email, issued to his personal email address, on April 15, 2011 from Agency
Headquarters Security informing him a parking pass was being prepared. However,
Complainant stated that on April 17, 2011, he was notified by the Agency that he was not
selected for the VIS GS-13 position at Agency’s DI Administrative Unit.

The Selecting Official for the position at issue testified, in his September 23, 2013 supplemental
statement, that he initially selected an external applicant for the position. However, the
individual did not, for reasons he could not recall, come on board with the Agency. As a result,
the Selecting Official stated that he then selected Complainant for the VIS position with the
Agency’s DI Administrative Unit. However, the Selecting Official stated that the DI
Administrative Unit communicated with the Human Resources Division (“HDR”) regarding
Complainant’s transfer and was notified that Complainant had been terminated from the Agency.
The Selecting Official denied having any contact with Complainant’s chain-in-command from
the Laboratory Division before or after his selection or after he learned that Complainant had
been terminated. As a result, the Selecting Official stated that he selected another candidate for
the VIS GS 13 position at the Agency’s DI Administrative Unit.

S1 explained, in his September 20, 2013 supplement statement, that he was unaware that
Complainant had applied for another job outside of the division or was tentatively selected for
another position. S1 reiterated that Complainant’s subsequent removal from the Agency was
unrelated to Complainant’s application for another position within the Agency.
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Again, after careful consideration of the record, we conclude that neither during the
investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that
these proffered reasons for the disputed actions were a pretext for unlawful discrimination based
on Complainant’s race, disability, and reprisal for prior protected EEO activity.

Confidentiality of Medical Information - Claim 5

Under the Rehabilitation Act, information “regarding the medical condition or history of any
employee shall be collected and maintained on separate forms and in separate medical files and
be treated as a confidential medical record.” 29 C.F.R. § 1630.14(c)(1); see also 42 U.S.C.
§ 12112(d). By its very terms, this requirement applies to medical information obtained from
“any employee” and is not limited to individuals with disabilities. See Hampton v. U.S. Postal
Serv., EEOC Appeal No. 01A00132 (April 13, 2000).

Here, S1 testified that he placed a doctor’s note provided to him by Complainant in support of
his reasonable accommodation claim in a file personally maintained by S1 and kept in a locked
cabinet in his office to which only he had access.

The Rehabilitation Act’s prohibition against the disclosure of medical information contains
certain limited exceptions. Among those exceptions is that “supervisors and management may
be informed regarding necessary restrictions of the work or duties of the employee and necessary
accommodations.” See EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002, footnote 111
(Oct. 17, 2002). Such was the case here, where S1 was provided with a note from Complainant’s
doctor in support of his request for reasonable accommodation. EEOC policy guidance has
further directed that all medical information that an Agency obtains in connection with a request
for reasonable accommodation must be kept in files separate from the individual's personnel file.
See EEOC’S Policy Guidance on Executive Order 13164: Establishing Procedures to Facilitate
the Provision of Reasonable Accommodation, Question 20 (Oct. 20, 2000), Here, there is no
evidence that Complainant’s doctor’s note was maintained in his personnel file. Rather, the
claim is that the medical documentation proffered in support of his reasonable accommodation
request was maintained in the supervisor’s personal locked file cabinet that was accessed only by
S1. There is no allegation that S1 ever shared the file with anyone else or, more significantly,
that it was a file that anyone else ever had the potential to access. Under the unique
circumstances presented here, we find no violation occurred of the Rehabilitation Act’s
provisions concerning the confidentiality of medical information.
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s conclusion that Complainant failed to
prove that he was subjected to discrimination as alleged.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

_________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 20, 2019
Date