Renato K.,1 Complainant,v.Kevin McAleenan, Acting Secretary, Department of Homeland Security (U.S. Secret Service), Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

0120180407 (E.E.O.C. Apr. 26, 2019)

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

Renato K.,1
Complainant,

v.

Kevin McAleenan,
Acting Secretary,
Department of Homeland Security
(U.S. Secret Service),
Agency.

Appeal No. 0120180407

Agency No. HS-USSS-00322-2017

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 25, 2017, final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether the Agency properly found that Complainant did not prove he was
subjected to discrimination and harassment on the basis of disability.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Special Agent, GS-
12, (SA) within the United States Secret Service (USSS) at the Agency’s Washington Field Office
(WFO) in Washington, D.C.

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 or about June 2, 2013, Complainant began working with the Agency pursuant to a limited-
term, exceptional service appointment with the option to convert to career status at the end of the
position’s temporary term which was scheduled to end on September 29, 2016.2

On November 2, 2015, Complainant submitted a request to the Agency’s Hardship Committee
(HC) for a hardship transfer to Omaha, Nebraska, Springfield, Missouri, or Savannah, Georgia
because of his wife’s Post Traumatic Stress Disorder (PTSD) diagnosis. In his request,
Complainant reported that his wife suffered panic attacks after being kidnapped at gunpoint in the
Washington, D.C. area in November 2014. Complainant further stated that he needed to transfer
to one of the requested locations because his wife had a strong family support system in those
locations and the transfer would remove her from the area that triggered her PTSD.

On December 28, 2015, the Chief of the Performance Management and Employee Relations
Division denied Complainant’s hardship transfer request. On January 8, 2016, Complainant
appealed the denial of his request, but on February 17, 2016, the Agency denied Complainant’s
appeal on the basis that he had been offered reassignment to six alternative offices that had
openings for a Special Agent, but Complainant declined those offers.

Complainant then presented his request to the HC. On March 30, 2016, the HC denied
Complainant’s transfer request, finding that there was no evidence that his wife could not receive
adequate medical care for her condition in the Washington, D.C. area or at any of the six field
office locations to which he had been offered reassignment. In its decision, the HC offered
Complainant the opportunity to relocate to Kansas City, Missouri; Columbia, South Carolina;
Atlanta, Georgia; Louisville, Kentucky; St. Louis, Missouri; Chicago, Illinois, or Buffalo, New
York.

On April 6, 2016, a coworker (C1) reported that Complainant said that if his wife hurt herself
because the transfer request was denied, he would kill management officials. On April 6, 2016,
the Agency informed Complainant he would be placed on administrative leave and relieved of his
commissioned firearm. In a statement, Complainant acknowledged that he commented, “If she
[Complainant’s wife] ever did commit suicide, [he] would want to make those who pushed her to
suicide understand my pain and loss.” On April 7, 2016, the Chief of the Security Clearance
Division (CSD) issued Complainant notice of the suspension of his Top Secret Security Clearance
(TSSC) based on a report he had threatened management officials. Additionally, the Agency
notified Complainant that he was being placed on leave with pay. On April 8, 2016, Complainant
accepted the Agency’s offer to reassign him to the Kansas City Field Office, but the Agency held
his transfer in abeyance pending a decision on his security clearance.

On June 29, 2016, the Agency requested that Complainant undergo a fitness for duty examination
(FFDE) to determine his eligibility to retain his security clearance.

2 Special Agents are generally hired pursuant to a limited-term, excepted service appointment of
three years and 120 days. At the end of this initial period, the Agency may convert a Special Agent
to career status, but otherwise, the appointment expires on the date set at the time of hire.
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On July 20, 2016, Complainant was examined by a physician, and on July 25, 2016, the physician
reported that Complainant did not have a mental illness, was not likely to suffer incapacitation in
the performance of his work duties and was fit for duty. On September 22, 2016, the Special Agent
in Charge (SAIC) recommended that Complainant’s appointment be allowed to terminate as
scheduled on September 29, 2016, and that he not be converted to career status. On September
26, 2016, the Agency issued Complainant a memorandum notifying him of the termination of his
employment.

On December 12, 2016, Complainant filed an EEO complaint in which he alleged that the Agency
discriminated against him on the basis of disability when:

1. In November 2014, September 2015, October 2015, and April 2016, the Hardship
Committee denied Complainant’s requests for a transfer to a location supported by
medical professionals treating his wife;

2. On April 7, 2016, the Chief of the Security Clearance Division (CCSD) issued
Complainant notification that his Top Secret Security Clearance (TSSC) was
suspended;

3. On April 7, 2016, the Special Agent-in-Charge (SAIC) of the Washington Field
Office issued Complainant notification that he was being placed on administrative
leave;

4. In or around April 2016, USSS subjected Complainant to a fitness for duty
examination (FFDE) and referred him to the Employee Assistance Program (EAP);
and

5. On September 26, 2016, the Office of Investigations (OI) issued Complainant a
memorandum informing him that his appointed position with USSS would expire
on September 29, 2016.

In an investigative statement, Complainant stated that he believed that the Agency considered him
demanding regarding the care of his wife, which led to his separation from employment.
Complainant further stated that he did not have a disability, but SAIC made statements that implied
he believed that Complainant was unable to focus and carry out his duties while caring for his
wife.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

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CONTENTIONS ON APPEAL

On appeal, Complainant maintains that he has established a prima facie case of disability
discrimination because the Agency regarded him as disabled in the major life activity of working
and was aware that his wife suffered from PTSD, which creates an inference of associative
disability discrimination. Complainant further maintains that contrary to the Agency’s assertion,
he submitted medical documentation in support of his request for a hardship transfer. He further
maintains that whether there was treatment in the Washington, D.C. area was not the issue; the
issue was that the area exacerbated his wife’s conditions and impeded her recovery.

Complainant further maintains the Agency did not explain why it did not return him to work after
he was deemed fit for duty by physicians. Regarding the termination of his employment,
Complainant maintains that the Agency failed to provide specific details to support its claim that
he had poor judgment and an inability to respond appropriately to stressful situations. He further
maintains that his employment history reflected that he acted appropriately in stressful conditions.
Additionally, Complainant contends that the Agency erred when it found that he was not subjected
to unlawful harassment. The Agency requests that we affirm its final decision.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

ANALYSIS AND FINDINGS

Disparate Treatment and Harassment

Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For a complainant to prevail, he must first establish a prima facie case 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
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If the agency is successful, the burden reverts to the complainant to demonstrate by a
preponderance of the evidence that the agency’s reason(s) for its action was a pretext for
discrimination. At all times, the complainant retains the burden of persuasion, and it is his
obligation to show by a preponderance of the evidence that the agency acted on the basis of a
prohibited reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983).

In order to establish a claim of hostile-environment harassment, Complainant must show that: (1)
he belongs to a 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. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982).

A complainant attempting to establish a prima facie case of discrimination by association under
the Rehabilitation Act must establish: (1) that he was subjected to an adverse employment action;
(2) that he was qualified for the job at that time; (3) that his employer knew at that time that he had
a relationship with an individual with a disability; and (4) that the adverse employment action
occurred under circumstances which raised a reasonable inference that the disability of the
individual with whom he had a relationship was a determining factor in [the employer’s] decision.
Den Hartog v. Wasatch Academy, 129 F.3d 1076, at 1085 (10th Cir. 1997) (applying the
Americans with Disabilities Act, or ADA). In Polifko v. Office of Personnel Mgt., EEOC Request
No. 05940611 (Jan. 4, 1995), the Commission observed that it is unlawful under the association
provision to “exclude or deny equal jobs or benefits to, or otherwise discriminate against” an
individual based on the individual’s association with an individual with a known disability. 29
C.F.R. § 1630.8.

Regarding claim 1, an Assistant Director (AD1) who was on the Hardship Committee stated that
Complainant’s request to transfer to three specific offices was denied because he failed to show
how those locations offered medical services for his wife that she would not receive elsewhere,
including the Washington, D.C. area. AD1 further stated that the offices Complainant requested to
transfer to were smaller field offices that did not need a Phase I Special Agent such as Complainant.
A second Assistant Director (AD2) stated that Complainant was offered a transfer to several cities
outside of Washington, D.C., including Atlanta, Kansas City, St. Louis, Chicago, Buffalo,
Louisville, and Columbia because these cities had openings for a junior Agent such as Complainant
and were within driving distance of the locations he specified in his hardship request. A third
Assistant Director (AD3) stated that Complainant was offered the option to transfer to several
larger field offices instead of the three smaller offices to which he requested a transfer. AD3
further stated that the larger field offices were offered to Complainant because they might have
room for Complainant and offered his wife proximity to family.

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Regarding claim 2, the Security Officer (SO) stated that she suspended Complainant’s TSSC
because he made threatening statements toward management, which raised security concerns.
Regarding claim 3, the Assistant Director of the Office of Investigations (AD) stated that he made
the decision to place Complainant on administrative leave because his clearance had been
suspended. AD further stated that all USSS employees require a TSSC to access classified material
and locations; therefore, without a TSSC, Complainant could not perform the duties of his Special
Agent position.

With respect to claim 4,3 AD stated that the April 7, 2016 memorandum placing Complainant on
administrative leave encouraged him to contact EAP only as a reminder that the service is available
if he wanted to use it. He stated that it was reasonable to anticipate that an employee may
experience stress when his TSSC has been suspended and they have been placed on administrative
leave. SO stated that she referred Complainant to a FFDE because he made threatening statements
toward management, but she did not refer Complainant to EAP; she merely reminded him that
EAP was available.

Regarding claim 5, AD1 stated that he allowed Complainant’s term appointment to expire in
September 2016 because he demonstrated an inability to respond appropriately to stressful
situations and exhibited poor communication skills and a lack of judgment. Additionally, AD1
stated that he also based his decision to let Complainant’s appointment expire on the fact that
Complainant made threatening comments toward management, and he did not believe it was in
the best interest of the Agency to convert Complainant to career status.

In an effort to prove the Agency’s explanations are pretextual, Complainant contends that he was
improperly denied a hardship transfer because he submitted evidence that demonstrated that the
Washington, D.C. area provided daily triggers that exacerbated his wife’s PTSD. Upon review,
we note that although the Agency denied Complainant’s request to transfer to Omaha, Savannah,
and Springfield, it counteroffered with the opportunity for Complainant to transfer to seven other
cities, including Kansas City. The Agency maintains that it could not transfer Complainant to the
requested cities because its offices there were small, and there was no need for a Phase I Special
Agent such as Complainant at those offices. Complainant has not rebutted the Agency’s
assertions, and he has not shown that the Agency’s offer to transfer to Kansas City would not have
met the needs of his wife. In fact, Complainant’s acceptance of the Agency’s offer to transfer to
Kansas City indicates he believed that this offer was satisfactory.

3 There is no evidence the Agency subjected Complainant to a FFDE because of his medical
condition. Therefore, we analyze his FFDE claim under a disparate treatment analysis instead of
under the analysis for medical inquiries and examinations set forth in EEOC Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the
Americans with Disabilities Act (Enforcement Guidance on Disability-Related Inquiries), No.
915.002 (July 27, 2000).

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Regarding the suspension of his security clearance and placement on administrative leave,
Complainant maintains that he did not intend to make any threats and believed that his comments
to C1 were misunderstood. However, on September 19, 2016, Complainant provided the following
statement to the Agency’s Secret Service Inspection Division regarding his April 4, 2016
comments:

I vented frustrations about my attempts to get my wife help . . . . I made a remark
about my wife having attempted suicide and if she ever did commit suicide I would
want to make those who pushed her to suicide to understand my pain and loss. The
statements I made were purely out of frustrations and had no intent behind them. I
do understand how the remarks could have been taken and the concern that arose.
I do regret making the statements and the utilization of graphic language . . . .

Report of Investigation, p. 426.

While Complainant may not have intended to threaten management with physical harm, we find
it reasonable for management to interpret Complainant’s statements as threatening such harm. In
fact, in his statement, Complainant acknowledged that he understood that the remarks could spark
concern and contained “graphic language.”

Complainant contends that the Agency did not provide examples to support its assertion that he
demonstrated an inability to respond appropriately to stressful situations and exhibited poor
communication skills and lack of judgment. However, after reviewing the record, we are
persuaded that management likely evaluated Complainant’s communication skills and judgment
in the context of his threatening comments to management. At any rate, Complainant’s threatening
comments clearly precipitated the suspension of his security clearance, placement on
administrative leave, FFDE, and ultimate separation from employment, as reflected by the fact that
he was placed on administrative leave and had his security clearance suspended almost
immediately after the comments were reported. We note that Complainant’s Special Agent
position mainly involved investigating violations of federal laws and planning, coordinating, and
conducting protection activities. In furtherance of their job duties, Special Agents are issued and
carry firearms. Because Special Agents carry firearms and hold law enforcement positions that
are designated “critical-sensitive,” require security clearances, and protect high-profile officials,
we find it reasonable for the Agency to be especially cautious about any threats of violence made
by its agents.

We find that Complainant did not prove that the Agency’s nondiscriminatory explanations are
pretext for disability discrimination. Instead, we conclude that the Agency’s actions were
motivated by its reasonable concern that Complainant posed a security threat after uttering threats
against management. Thus, we conclude that the Agency properly found that Complainant did
not prove he was subjected to unlawful discrimination or harassment. See Oakley v. U.S. Postal
Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000); Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
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CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision for the reasons
set forth herein.

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).

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. 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

April 26, 2019
Date