Equal Employment Opportunity Commission September 2009 casesJudi K. Brocco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Felix Zelikman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Haroll J. Austin, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Robert Steven Mitchell, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.Angela O'Day, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Jose R. Castro, Charles L. Figueroa, Jose E. Ortiz, Complainants, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.Regina Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Cha Cha B. Gillett, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Ricky Wingle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.Kelly M. Phillips, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Jim Simek, Complainant, v. Christopher J. Scolese, Acting Administrator, National Aeronautics and Space Administration, Agency.Pierre-Richard Laguerre, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.Eliberto Yzaguirre, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Danial Farooq, Petitioner, v. Nicola O. Goren, Acting Chair, Corporation for National and Community Service, Agency.Edwin C. Putman, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Judy M. Leonard, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Ronnie V. Ewing, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.Jose L. Gonzalez, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.James L. Klinger, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.Robert Jankowski, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.John R. Landavaso, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Steve Harrison, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.William E. Ray, Jr., Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.Oscar J. Moore, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.Herbert Y. Fong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Hossam E. Ahmed, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.Dom Wadhwa, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Lawrence V. Wilder, Petitioner, v. Christopher J. Scolese, Acting Administrator, National Aeronautics and Space Administration, Agency.Johnnye M. Stewart, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.Joanna Chang, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.Melody A. Courtney, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Kevin P. Clarke, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Vawn M. Muse, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.Ruben F. Morales, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.Alton D. McLemore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Renee K. Clark, Complainant, v. John McHugh, Secretary, Department of the Army, Agency.Hector R. Figueroa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Jerry Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Angela L. Bajoie, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Debra Lamb, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Glenda A. Higgins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.George W. Morgan, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.Yu Lin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.David Hansford, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Nestor L. Lopez-Rincon, Complainant, v. John E. Potter, Postmaster General United States Postal Service (Southeast Region), Agency.Edwin Torres Cortes, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Dawn R. Royal, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Sirilo Santiago, JR, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Elia Balderas, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.Isaac P. Decatur, Jr., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Debra C. Johnson, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.Sharon Davis, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.Herman Landrum, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.Usman M. Baig, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.Corbin W. Russell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Dalphine Foster, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Babu K. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Gregory R. Chatman, Complainant, v. Mary L. Schapiro, Chairman, Securities and Exchange Commission, Agency.Wilfredo Golez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Mir Hashimi, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Maria E. Hernandez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Stephen D. Ashby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.Shelly J. Henderson, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.Wayne Maloy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Mark D. Gianfelice, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Jonathan A. Berry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Marie McMillon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.Ann M. Swartz, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.Thomas M. Mara, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Isaac P. Decatur, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Vincent B. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Veronica R. Crutches, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Alex Bilbrew, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Kingsley O. Uzukwu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Joyce A. Cartner, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.David Elias, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.Jose Valdez, Complainant, v. John Berry, Director, Office of Personnel Management, Agency.Angelina C. Orozco, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Debra S. O'Sullivan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.Jon Wiggs, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Cheryl D. Campbell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Sam Gaye, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.Kevin Strong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Karen L. Huston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Bruce D. Rodewald, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Larry J. Welcher, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Beverly G. Brabham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Isaac L. Hykes, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.Ricky Hernandez, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Jeanette B. Jordan, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Maureen Hill, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.Debra Finley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Rebecca J. Vucinaj, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.Gari Jo Green, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.Joann I. Woods, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Pamela McIlvaine, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.Belle A. Jenkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.James Stevenson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Lynn M. Eustis, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Dennis A. Speck, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Ernesto Perez, JR, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.Julian I. Adams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Jonnie E. Spangler, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.Mark R. Segovia, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.Patricia DiPleco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Essie Gilchrist, Complainant, v. Karen G. Mills, Administrator, Small Business Administration, Agency.Mark Kessinger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.Carol L. Mulhern,1 Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Margaret R. Harris, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.Darrilyn A. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.Cathie E. Simmons, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Antionette Bullay, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Paula R. Manning, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Amanda L. Parker-Mason, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.Juan W. Layme, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.David S. Zitnick, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.Helen Whelan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Shelia D. Bogan-Walker, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Valerie Hamm, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Wilma Figueroa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.Dienesha A. Yancey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Gwendolyn E. Evans, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Craig J. Charest, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.Joann M. Bisto, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Terrence L. Bettendorf, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.George W. Bridges, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.Edward J. Chavez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.Eduardo Diaz, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Janice C. Allen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.Roberto Ifill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital-Metro), Agency.Alfonso Zamarripa, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Eric W. Wright, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Lucy M. Deiters, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Thomas Mostella, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Susan West, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.Gloria Williams-Kates, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Kimberly M. Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Lawrence V. Wilder, Petitioner, v. Christopher J. Scolese, Acting Administrator, National Aeronautics and Space Administration, Agency.Terrie Dawson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.Margaret Sheflin, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.Priscilla Smith-Lutcher, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.Clinton E. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Victoria Ashley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Lydia F. Elliott-Buettner, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.On September 29, 2009, Complainant filed an appeal from the Agency's August 28, 2009, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.; and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision. The agency is directed to comply with the ORDER below. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-7 Senior Correctional Office at the Agency's Federal Correctional Complex in Coleman, Florida. Complainant worked at the Coleman facility for ten years. The Coleman complex has five facilities including a low security facility, a medium security facility, and a penitentiary. During relevant period, Complainant worked at the penitentiary. On or about May 26, 2007, Complainant was separated from employment due to her disability retirement. The record reveals that in April 2004, Complainant filed a prior EEO complaint against a Correctional Officer 1 (CO1). In the complaint, Complainant alleged that CO1 locked her in a tower, forced her to clean toilets, and would not allow her to leave until she finished. Complainant averred that the tower incident brought back difficult memories of physical, sexual and emotional abuse she suffered at the hands of her father. After the tower incident, she resumed counseling for Post Traumatic Stress Disorder (PTSD).1 In January 2005, Complainant applied for, and was found qualified for the Senior Correctional Officer position. On March 2, 2005, the Warden announced the selectees for the position at an Annual Refresher Training course. Complainant was not selected. Complainant contacted an EEO Counselor and initiated this complaint alleging that at the meeting, the Warden announced that: "people who file EEO complaints and people who do not have good rapport with Lieutenants, who called in sick all the time probably would not have been selected....Those people that filed EEO complaints don't get promoted and them (sic) file EEO complaints on the selection." Complainant contended that she received "exceeds" or "outstanding" ratings on her recent performance appraisals, had more seniority, and was more qualified than others selected. One of Complainant's co-workers at the training stated that the Warden informed him that selections were based on the number of lieutenants you had in your back pocket, and that he "had to grease the wheel." The co-worker filed a union grievance, and an additional four more officers were promoted. The Warden retired on May 2, 2005. The Warden explained to the EEO Counselor that he made the selections based on the input of Lieutenants. He selected the officers off the best qualified list who received the most votes. The Warden stated that Complainant did not receive any recommendations from her Lieutenants. Although the Agency's Investigator requested the Agency provide voucher sheets containing the "votes," none were supplied. The Warden averred that Complainant was an "average" to "below average" Correctional Officer, and that she had taken a lot of sick leave. The Agency's investigator did not ask the Warden if he made the statement about how filing EEO complaints would hurt one's chances at promotion. The Warden denied knowledge of Complainant's prior EEO complaint. Other testimony about Complainant's performance included statements from the Associate Warden who averred that Complainant was "opportunistic." Further, he stated that that she was not a "star employee." Complainant alleged that she was harassed following the filing of her EEO complaint. In April 2005, she stated that she received e-mails about an upcoming program called "Jail and Bail," where Correctional Officers would be "hand cuffed, made to cry, taunted, teased and made to clean like orderlies." Complainant informed the Associate Warden and he told her to take sick leave. Complainant also alleged that a Lieutenant referred to her as "Rapunzel." Complainant alleged that as part of the harassment, CO1 ignored a distress call that Complainant made when a female visitor to the facility began screaming, crying and waving her hands in an assaultive posture. In February 2005, she applied for a GS-9 Recreation Sports Specialist position so that she could get away from the environment. She alleged that she informed the Human Resource Specialist that she was being harassed at the facility, and that she requested to be placed into the position only at the Low security facility. Complainant averred that she asked for a reasonable accommodation. In response, the Human Resources Specialist stated that she did not recall such a request, although she averred that she stapled a note to Complainant's application indicating that Complainant only wanted to be considered for the position if it was at the Low facility. Complainant was found qualified for the Recreation position, but was not selected. The three others found qualified were selected at the GS-5 and GS-07 levels. Although Complainant maintains she was more qualified than the others, the agency stated she was not the most qualified and that she was not chosen because she had restricted her application to only the Low facility. The agency's Human Resources Manager averred that employees must be able to work at all facilities in the complex. On April 20, 2005, Complainant submitted a request for workmen's compensation to the Safety Manager. Complainant also provided a note from her psychiatrist which stated that she was suffering from PTSD and that she Complainant's prognosis was "good with continued mental health counseling [and that] appropriate corrective and remedial responses by her employer would also be beneficial in reducing her recently exacerbated symptoms of chronic PTSD." Complainant was referred to EAP, and the Safety Manager referred the matter to the Manager of Human Resources. Complainant also alleged that in May 2005, CO1 made her wait 10 minutes when she requested equipment in the Control room, and further alleged that CO1 made her wait fifteen minutes before opening the Special Housing Unit salley-ports, so that she could not move between the locked grilles. This incident caused Complainant stress so she took sick leave for the remainder of the day. Complainant states that she reported the harassment, and stated that she was "terrified of this Officer and... scared that he will do something to endanger me at work."The next day, on May 18, 2005, Complainant was informed she could not return to work until her physician stated that she could perform the job. The agency then issued her a fitness for duty letter, which requested her prognosis and diagnosis. The psychiatrist noted that "[Complainant] should not return to her current work setting due to apparently ongoing workplace sexual harassment and retaliatory actions against her by her current employer."Complainant did not return to work and ultimately retired on full disability in May 26, 2007. On April 5, 2005, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (PTSD and of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. in March 2005, she was not selected for a GS-8 Senior Correctional Officer position; 2. she was subjected to harassment when the following occurred: a. in April 2005, she was forced to use sick leave so she would not have to attend "jail and bail" b. on May 17, 2005, she was locked in the sallyport; 3. on May 9, 2005, she was not selected for the Recreation Specialist position and 4. she was denied a reasonable accommodation when, on May 18, 2005, she was told she could not return to work until she underwent a fitness for duty examination (FFD). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In its decision, the Agency found the Warden was not truthful when he denied that he was aware of Complainant's prior EEO complaint, as the record from Complainant's prior complaint revealed evidence to the contrary. The Agency questioned the Warden's testimony that he relied on the vouchers because they were not in the record, so the votes could not be verified. The Agency found sufficient evidence establishing that the Warden made comments at the Refresher Training Course that indicated he considered non-merit based criteria when making his selections. However, the Agency did not agree with Complainant's claim that he based his decisions on Complainant's prior EEO activity. Rather, the Agency determined there was sufficient evidence supporting its claim that Complainant was not selected because her performance was not above average. It found that Complainant failed to provide sufficient evidence establishing, more likely than not, that the agency's reasons for not selecting Complainant were a pretext for discrimination or retaliation. With respect to the nonselection for the Recreation Sports Specialist position, the Selecting Official averred he was unaware that Complainant filed an earlier EEO complaint, and unaware that she suffered from PTSD. The agency found it can choose among equally qualified candidates, as long as discrimination was not involved. The agency noted that although one of the candidates (female) had minimal recreation experience, there was no evidence that she was chosen because of a discriminatory or retaliatory motive. As for her Failure to Accommodate claim, the agency assumed, without deciding, that Complainant's PTSD constituted a disability under our Regulations. The Agency noted that Complainant did not indicate on her application that she was seeking the Recreation Sports Specialist position as an accommodation. Further, the April 20, 2005 documentation from her psychiatrist did not make any request for accommodation or specific recommendations. Indeed, the agency found the only evidence of conversations about a request for reasonable accommodation happened in mid to late May 2005, after the position had already been awarded to others. By that time, however, Complainant's psychiatrist had documented that Complainant was unable to work at the facility at all. The agency did not examine Complainant's claim of harassment. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the agency failed to accommodate her disability. She contends that the agency's shifting reason for her nonselection for the Recreation Sports Specialist position is evidence of pretext. Further, she states that the agency conducted an inadequate investigation, and failed to interview certain witnesses. She provided statements from other employees who witnessed the Warden's comments at the Refresher Training Course. The agency did not respond to Complainant's appeal. ANALYSIS AND FINDINGS 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. (November 9, 1999) (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"). Senior Correctional Officer Promotion Senior Correctional Officer Promotion Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing, Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). After a review of the record, we find Complainant established, more likely than not, that the agency's reasons for not selecting her to the Senior Correctional Officer position were a pretext to retaliate against her for filing a prior EEO complaint. The record reveals that Complainant filed a sexual harassment complaint when CO1 locked her in a tower and forced her to clean toilets. Moreover, the Agency acknowledged that the Warden was aware of Complainant's prior EEO activity, despite his testimony to the contrary. Complainant averred that she heard the Warden specifically mention EEO complaints as a factor which would hamper one's promotion potential at the Refresher Training Course. She provided further testimony that supports her contention that the Warden did not want to select people for the position who had filed EEO complaints. Specifically, on appeal, a co-worker recounts that the during the announcement, the Warden stated, "officers who don't have more than one lieutenant in their hip pocket will not get promoted; officers who filed complaints on their supervisors or who call in sick shouldn't expect to be promoted..."Indeed, none of the individuals who were selected for the promotion had prior EEO activity. Notably, the Agency's Investigator never even questioned the Warden as to whether he made the comments about EEO activity. We are also not persuaded by management's negative assessment of Complainant's performance. Complainant's most recent performance appraisal was comparable in all respects with the selectees' performance appraisals, as she received all "exceeds" and "outstanding" ratings. Indeed, her rating official noted, "[Complainant] has had an excellent year, and with her work habits and attitude the sky is the limit. Keep up the GOOD work."This documentary evidence is in direct conflict with the Warden, who the agency has already acknowledged has a credibility problem. Although the Warden reported that he relied on the votes from Lieutenants, we cannot verify this because of the agency's failure to provide the votes or vouchering record. No explanation was provided, yet it appears vouchers were critical to the selections process. We note that EEOC Regulation 29 C.F.R. � 1602.14 provides that agencies must preserve any records pertaining to selections and promotions for a period of one year from the date of the making of the record or the personnel action, whichever comes later. The regulation also requires that once the complaint process is initiated, the agency is required to retain personnel records until a final disposition of the complaint. Because the agency has failed to comply with 29 C.F.R. � 1602.14, we take an adverse inference against the agency and find that had the missing records been preserved, they would have shown that the agency's explanations for why complainant was not selected for the position were not credible. See Cosentine v. Department of Homeland Security, EEOC Appeal No. 07A40114 (August 9, 2006)(citing Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000)). Accordingly, we find Complainant has established that the Warden was aware of complainant's prior EEO activity, and that he harbored a retaliatory animus against those who engaged in EEO activity. Complainant has established that the agency's reasons for its actions were not truthful, but were a pretext to retaliate against her for having filed an EEO complaint. In order to remedy this matter, the agency is directed to comply with the order below. Harassment To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002, at 2 (Mar. 8, 1994). In determining whether an environment is "hostile" or "abusive," a trier of fact must consider all the circumstances, including the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Harris, 510 U.S. at 23. After a review of the entire record, we find Complainant proved she also was subjected to a hostile work environment. Complainant contends that CO1 failed to respond to her distress call, ignored her at the equipment desk, and failed to open a locked door, which trapped her. The agency's investigator failed to ask CO1 about any of these incidents. One co-worker corroborated Complainant's claim that she was made to wait an unreasonable amount of time to get her equipment. The facility's new Warden averred that once Complainant complained to management about these incidents, an investigation was conducted and the allegations were not sustained. Management averred that an investigation revealed that a Lieutenant did in fact respond to the duress call, and that Complainant was required to remain at the door for only a few extra minutes. However, there are no documents supporting this testimony in the record from the investigation into Complainant's claims. There is no testimony from any witnesses to these events. One individual averred that it was another co-worker (CO2), not CO1, who was responsible for the failure to open the locked door, but there is no testimony from that CO2, who was a witness to the event. Complainant also alleges she was harassed when she received emails about the "Jail and Bail" event which was part of Correction Officer's Week. During "Jail and Bail," e-mails announcing this event stated that staff would be "hand-cuffed, made to cry, taunted, teased and made to clean like orderlies."Complainant informed the Warden that she did not wish to participate, and the agency informed her she could take sick leave on that day. However, Complainant continued to receive e-mails about the event. Complainant stated that a Lieutenant threatened her: "you chose to take your complaint outside the house, now you have to suffer the consequences."This testimony was unrebutted, as the Agency never secured an affidavit from the individual who made the remark. In light of the allegations, and the agency's failure to secure relevant affidavits and documents, we find the evidence in the record supports Complainant's version of the events. An agency is responsible for acts of harassment in the workplace by complainant's co-workers where the agency knew (or should have known) of the conduct and failed to take immediate and appropriate corrective action. Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors EEOC Notice No. 915.002 (June 18, 1999); see Policy Guidance on Current Issues of Sexual Harassment (March 19, 1990); Villanueva v. Department of Homeland Security, EEOC Appeal No. 01A34968 (August 10, 2006). In light of the agency's failure to provide any credible testimony or documentation supporting its position that it investigated the matter, we find the agency failed to establish that it conducted an appropriate investigation that would stop and remedy the harassment. After a review of the record, we find Complainant established, more likely than not, that these incidents occurred as she alleged, and that they rose to the level of a hostile work environment. The conduct was offensive and interfered with Complainant's work performance. The failure to respond to Complainant's duress call was physically threatening. The agency failed to establish that it took prompt remedial action to stop and remedy the harassment. Therefore, in order to remedy the harassment, the agency is directed to comply with the order below. Not Selected for Recreation Sports Specialist position/Failure to Accommodate The Rehabilitation Act prohibits discrimination against qualified disabled individuals. See 29 C.F.R. � 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. � 16302(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance. Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). 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. See 29 C.F.R. �� 1630.2 (o) and (p). Complainant contends that she spoke with the Human Resources Specialist and informed her that she was being harassed, and requested that she be placed only at the Low Facility as Recreation Sport Specialist. After a review of the record and assuming Complainant is an individual with a disability, we do not find sufficient support for Complainant's contention that she requested a reasonable accommodation for her disability. The Human Resources Specialist averred she does not recall the conversation about Complainant being harassed, but does admit that Complainant requested to work only at the Low facility. However, we do not find sufficient evidence that supports Complainant's claim that she requested an accommodation for her disability during that meeting. Nothing in Complainant's note from her psychiatrist requests an accommodation either; it only vaguely refers to "corrective and remedial responses from her employer." Moreover, we find that by May 18, 2005, Complainant was no longer a qualified individual with a disability. Complainant's psychiatrist noted that by this time Complainant could no longer work in the facility. The new Warden testified that during a subsequent conversation, he asked Complainant if she could come back to work, and he avers that Complainant did not respond affirmatively. (Supplemental Report of Investigation at Exhibit 7). Even when she was questioned by the Agency Investigator as to whether she could come back and work, Complainant did not confirm that she was able to work at the facility, or any other facility. Finally, we find no support for Complainant's claim that she was not selected for the Recreation Sport Specialist position due to her prior EEO activity or her sex. Complainant failed to present any evidence which would support an inference of discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the agency's final action in part, and AFFIRM the agency's final action in part. The agency is directed to comply with the ORDER below: ORDER (D0610) The Agency is ordered to take the following remedial action: 1. Within thirty (30) days from the date this decision becomes final, the agency shall offer Complainant promotion to the GS-8 Senior Correctional Officer position, or a substantially equivalent position, retroactive to the March 2, 2005, the date of the selection. The offer shall be made in writing. Complainant shall have 15 days from receipt of the offer to accept or decline the offer. Failure to accept the offer with 15 days will be considered a declination of the offer unless complainant can show that circumstances beyond her control prevented a response within the time limit. 2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits (salary increases, seniority, retirement benefits, etc.) due Complainant, from March 2, 2005 until May 26, 2007, (the date of her retirement), pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."Ernest Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.Amit I. Vora, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.Cheryl Spann, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.Roland A. Dobson, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.Joanne Hayes, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Richmond Turner, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Matthew Taranto, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.Donald S. Harris, Complainant, v. Kenneth L. Salazar, Secretary, Department of the Interior, Agency.Vernon W. Risby, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.Robert D. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital-Metro Area), Agency.Robert E. Price, Jr., Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Ryan C. Spencer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Emily S. Clark, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Felicia Lake, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.Walter P. Colton, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.Robert J. Zimmerman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Richard P. Bluestein, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Susan E. Looper, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.Porfirio V. Adame, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Ira W. Blue, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.William Sisk, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Lisa M. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Angela Agostini, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Bennie Barr, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Michelle Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Bobby Garnett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.Betty Prince, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Indian Health Service), Agency.Wanda M. Smith, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.Barbara A. Dunbar, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Ricky B. Leggitte, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.John D. Morgan, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Janet L. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Theodore E. Danielson, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.Joyce Branch-Williams, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Ruth E. Oneske, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Mari I. Sanchez, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Adrienne Curry, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Kathleen Barry-Park, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Elisa F. Duro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Michael O. Lucas, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.James A. Homolka, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.Gary L. Dixon, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.Jessie B. Harvey, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.James Heald, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Rosemary E. Dockter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.Karen L. Courvell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.Eduardo A. Mendez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.Sharon Scott, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Vicky G. Dowdy, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Rey G. Salanga, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.Kathryn L. Carter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Ron B. Lightsey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Deborah A. Curl, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Linda C. Gross, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.Joe Prunty, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Walter R. Velez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Theresa M. Hensel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Kent R. Stanton, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.Michael W. Higgins, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.Debra A. Hodges, Complainant, v. Ray LaHood, Secretary, Department of Transportation, Agency.Athanasios T. Bitsas, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.David Freeman, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Jonathan C. Gunther, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.Millard P. Burruss, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Elizabeth M. Sanborn, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.David A. Elias, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Andre N. Virgil, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Marvin T. Moore, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Victor Hadnot, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Niurka Fernandez-Arteaga, Complainant, v. Joaquin F. Blaya, Chairman, Broadcasting Board of Governors, Agency.Parminder S. Gill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Benjamin D. Kirman, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.Cledith M. Jones, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.James D. McCabe, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Anthony J. Stonecipher, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Kathy A. Kennedy, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Mary Cavanaugh, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Richard G. Woods, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Orlando Jimenez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.Harvey L. Crowe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Clifford J. McLatchey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Denise A. Brown, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.Delores Clark, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.Louis Flores, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.Virginia Cockerham, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.Rene Cobian, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Guillermo Mojarro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Nadine C. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.On September 24, 2009, Complainant filed an appeal from the Agency's August 28, 2009, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision. BACKGROUND During the relevant time, Complainant, a disabled Veteran with back and neck injuries, worked as a WS-4 Materials Handler Supervisor at the Federal Correctional Institution in Cumberland, Maryland. His duties included supervising inmates in the prison warehouse while they performed various jobs, supervising the prison laundry, and working in the commissary selling products to inmates. These various responsibilities were performed on a rotational basis. In approximately 2001, Complainant suffered an on-the-job injury which resulted in knee surgery. Years later,1 Complainant requested that he no longer work in the commissary as an accommodation for his knees. Instead, Complainant was removed from all of his Materials Handler Supervisor duties and temporarily reassigned to monitor inmate phone calls, thereby allowing him to avoid prolonged standing. Additionally, the Agency removed Complainant's collateral duty Firearms Instructor responsibilities. Believing that the denial of his requested accommodation, reassignment to telephone monitoring, and removal of Firearms Instructor duties were discriminatory, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, on October 29, 2007, Complainant filed a formal complaint based on disability and reprisal. The Agency framed the claims as follows: Believing that the denial of his requested accommodation, reassignment to telephone monitoring, and removal of Firearms Instructor duties were discriminatory, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, on October 29, 2007, Complainant filed a formal complaint based on disability and reprisal. The Agency framed the claims as follows: (1) On September 10, 2007, Complainant's request for a reasonable accommodation was denied; (2) On September 24, 2007, he was reassigned from the warehouse to telephone monitoring; (3) Complainant was removed as a firearms instructor; (4) Complainant's medical information was shared with staff other than the Warden; and (5) Complainant's quarterly performance evaluation was lowered from "outstanding" to "exceeds." At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an 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. First, the Agency maintained that Complainant was provided an effective reasonable accommodation. Assuming that Complainant is a qualified individual with a disability, the Agency explained that upon receiving Complainant's request it sought medical documentation. While Complainant contends that the Agency failed to act for a year and then denied his request on September 10, 2007, the Agency stated that Complainant did not submit documentation until August 1, 2007. Moreover, during that period, his hours in the commissary were reduced. Upon receiving the medical documents, stated the Agency, Complainant was removed from his Materials Handler Supervisor duties and temporarily reassigned to monitor phone calls. The Agency noted that Complainant himself admitted that this assignment alleviated his medical condition. Therefore, according to the Agency, Complainant was not denied an accommodation (claim (1)), as the reassignment to telephone monitoring (claim (2)) was an effective accommodation. With respect to the Firearms Instructor duties (claim(3)), the Agency concluded that there is "no evidence that removing [C]omplainant from serving as firearms instructor was anything more than a reasonably prudent action, particularly given the lack of medical information about [C]omplainant's impairment."The only statement cited in the Agency's decision, with respect to claim (3), was the management official's comment that he suggested removal of the collateral duty because Complainant was "complaining so much about his back and his legs and everything else."According to the official, he suggested the removal of Complainant's instructor duties out of "a safety concern for him", as he did not want Complainant to be injured further. As to the alleged improper dissemination of Complainant's medical records (claim (4)), the Agency reasoned that the documents were only accessed by those individuals involved with Complainant's reasonable accommodation request. While the Complainant believed that only the Warden should have reviewed the documents, the Agency found it necessary for the Associate Warden, the Employee Services Manager, Safety Manager, and Complainant's supervisor to also have access. Further, the Agency found no evidence that those involved with processing and implementing Complainant's accommodation request improperly shared the records. Lastly, while Complainant alleged that his reduced quarterly performance rating was retaliatory, the Agency found the claim to be unsupported by the record. As an initial matter, the Agency noted that Complainant did not suffer any tangible harm, as an "exceeds" rating is still "a very good rating" and did not cause a loss of pay or other benefit. Next, the Agency stated that there is "no evidence that management's actions would have dissuaded a reasonable employee from engaged in protected EEO activity" and it did not prevent Complainant from doing so. According to the Agency, there is no evidence that the "exceeds" rating was motivated by Complainant's prior EEO activity. Complainant filed the instant appeal. CONTENTIONS ON APPEAL On appeal, Complainant disputes various points in the Agency's decision. For example, he contends that he was sent for an exam with an Agency doctor regarding his back and neck, but his accommodation request concerned his knees. The Agency's assertion that his medical documents, showing that he was a disabled veteran, were outdated is also false because he "hasn't healed overnight." Complainant argues that the Agency failed to engage in the interactive process. He reiterates that his request for an accommodation was not acted upon until a year later, when he began the EEO complaint process. Regarding his claims of reprisal, Complainant reiterates his belief that the removal of his Firearms Instructor position was motivated by his EEO activity. If it was done as an accommodation, Complainant asks why it was not done when he first requested to be relieved from commissary duty. If the duties were taken to prevent Complainant from harming himself, Complainant wonders why management did not ask the Lead Firearms Instructor if there was a danger of such harm. ANALYSIS AND FINDINGS 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. (November 9, 1999) (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"). Disability Reasonable Accommodation The Commission notes that the Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See29 C.F.R. � 1630. In order to establish that Complainant 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 a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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. See 29 C.F.R. �� 1630.2(c) and (p). For the purposes of analysis only, we shall assume that Complainant is a qualified individual with a disability and is therefore entitled to reasonable accommodation. The Commission finds, however, that Complainant has not established that the Agency failed to reasonably accommodate him. Complainant requested that he not be required to work in the commissary as a reasonable accommodation. The Agency states that it participated in the interactive process by seeking medical documentation from him. While the Agency may have been aware of Complainant's disabled Veteran status, and associated back and neck injuries, the instant request concerned his knees. Moreover, Complainant had been performing the commissary duties for years following his knee surgery. Therefore, we find that it was appropriate for the Agency to seek relevant documentation. While Complainant argues that the Agency delayed processing his request, in violation of the Rehabilitation Act, his assertion is not supported by the record. The Agency contends that Complainant himself caused the delay by waiting to provide the requested medical documents. As for the alleged denial of an accommodation, the Commission finds that Complainant was accommodated. We note that the Rehabilitation Act does not require than an agency offer an individual the accommodation of his choice, but simply an effective accommodation. Here, although Complainant sought to be permanently excused from working in the commissary,2 he was temporarily transferred to telephone monitoring. However, Complainant's own testimony reflects that the accommodation has been effective. He attested that he is no longer standing all the time, and is able to get up and walk when he needs to.3 Therefore, we do not find Complainant was discriminated against in claims (1) and (2). Medical Disclosure Complainant contends that the Warden improperly disclosed his medical information to other staff members. The Commission's regulations implementing the Rehabilitation Act provide for the confidentiality of medical records. Specifically, 29 C.F.R, � 1630.14(c)(1) provides, in pertinent part, that: "Information obtained . . . regarding the medical condition or history of any employee shall ... be treated as a confidential medical record, except that: (i) [s]upervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations."By its terms, this requirement applies to confidential medical information obtained from "any employee," and is not limited to individuals with disabilities. See Hampton v. United States Postal Service, EEOC Appeal No. 01A00132 (April 13, 2000).see also EEOC Enforcement Guidance on the Americans With Disabilities Act and Psychiatric Disabilities ("Enforcement Guidance - ADA"), No. 915.002 (March 25, 1997) at question 15; EEOC Enforcement Guidance: Disability Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act ("Enforcement Guidance - Disability Related Inquiries"), No. 915.002 (July 27, 2000) at General Principles; ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations ("Enforcement Guidance - Pre-employment"), No. 915.002 (October 10, 1995). Since the Warden was the only one who could make a decision about granting an accommodation, Complainant reasoned that she should have been the only individual to see his medical information. According to Complainant, his medical records were shared with the Associate Warden, the Employee Services Manager, the Employee Services Manager, and his supervisor. The Commission finds that medical information was only shared with those involved with processing and implementing Complainant's request for a reasonable accommodation. The Warden attested that the Associate Warden participates in the decision-making process. The Employee Services Manager works to maintain employee records, and would have had access to the records for that reason. Complainant's direct supervisor (the Trust Fund Supervisor), was informed in order to implement the accommodation.4 Consequently, we do not find that Complainant has established that his medical information was improperly shared as alleged in claim (4). Reprisal Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). In claim (3), Complainant alleged that he was discriminatorily removed from his Firearms Instructor position. The position was collateral duty, and comprised approximately one week a year of Complainant's time. According to Complainant, "there's nothing I couldn't do out at the range."He explained that instruction takes only fifteen minutes, and he can sit, walk and move as needed. Complainant believes that his supervisor removed him from the position in retaliation for his EEO activity. The Commission agrees. When asked about the decision to remove the Firearms Instructor responsibilities, Complainant's supervisor attested "Yeah, I was involved in that because due to the fact that he was complaining so much about his back and his legs and everything else. . . .I was thinking of it more as a safety concern for him. You know, I mean, if he can't bend or lift or, you know do anything out in the warehouse5 or the commissary, it's the same thing out on the range."The supervisor reasoned that the physical activity on the range was not any different than his other duties, "same thing as being on his feet for many, many hours. You know, that as I was aware of. I mean, if he was complaining about his back, his legs, and stuff like that, that has a wear and tear too, from what I understand," Yet, when the investigator asked whether the Firearms Instructor position could be performed from a seated or resting position, the supervisor replied "I really don't know about that because I'm not out on the range all day long." The supervisor's own testimony reflects that Complainant's instructor duties were removed because he was complaining. While the supervisor professed that he was motivated by concern of further harm to Complainant's impairments, he himself admitted that he did not know the physical requirements of the role. Consequently, we find that the supervisor was motivated by discriminatory animus towards Complainant's efforts to obtain a reasonable accommodation. Similarly, the Commission finds that Complainant's lowered evaluation was retaliatory. First, we note the blaring absence in the Agency's analysis of a legitimate reason for the reduction from "outstanding" to "exceeds." Instead, the Agency attempts to persuade the Commission that Complainant was not harmed by the evaluation because an "exceeds" rating "by the way, is a very good rating" and did not result in a loss of pay. The lower quarterly evaluation was in writing, retained in his files, and considered in determining the yearly evaluation. Complainant asserts that it was motivated by retaliation. See Little v. Social Security Administration, EEOC Appeal No. 0120100488 (April 15, 2011) (negative feedback during year-end performance discussion found to state a claim because the review was placed in personnel folder and used for lowering end-of-year appraisal). Therefore, we find that event in claim (5) clearly rendered him an "aggrieved" employee. As acknowledged by the Agency, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual. No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. The Commission finds that the lowered evaluation constitutes an adverse treatment that may be reasonably likely to deter Complainant or others from engaged in protected activity. See Little v. Social Security Administration, EEOC Appeal No. 0120100488 (April 15, 2011) (negative comments were found likely to deter complainant or a reasonable employee from engaging in EEO activity).Sandra Reid, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Lorraine Little, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Kenneth Bey, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Gwendolyn A. Reid, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Dale E. Brandly, Complainant, v. Adrienne C. Thomas, Acting Archivist of the United States, National Archives and Records Administration, Agency.Debra M. Greene, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.John W. Tuttle, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Judy Sutyak, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Peter R. Scott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.Tony L. Calloway, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Patricia A. King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Joyce E. Fraker, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Carlos L. Garcia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Kathy G. Cress, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.Angel Martinez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Doris C. Cabrales, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Haynes C. Kinslow, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Edmund J. Kelly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Julie A. Holton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.Ronald J. Oleksy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Deborah R. Rozier, Complainant, v. Adrienne C. Thomas, Acting Archivist of the United States, National Archives and Records Administration, Agency.Mary D. Rowe, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.Andres Perez, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.Nichelle Reese, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.Phyllis A. Cirella, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.Susan K. Sink, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Connie O. Wong, Complainant, v. Pete Geren, Secretary, Department of the Army, (Army National Guard Bureau), Agency.Constance Y. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.John A. Boland, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.Frank Modafferi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.Aida L. Mendez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Mathew A. Fogarty, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Ed Kulzer, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.Carolyn Williams, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.Henry G. Robinson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Willie J. Whitfield, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.Mary Davenport, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.Wanda K. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Rickey Pasley, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.George Tuominen, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.Thomas B. Harris, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.Sandra M. Park, Complainant, v. John McHugh, Secretary, Department of the Army, Agency.Christine J. Smulski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Nichole Justice-Wilkerson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital-Metro Area), Agency.Sonia Smith, Complainant, v. Charles E. F. Millard, Interim Director, Pension Benefit Guaranty Corporation, Agency.Herbert Y. Fong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.William Newton, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Lawrence Doncontell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Gail H. Para, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.John S. Cecconi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Emily S. Clark, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Stephen A. Lebing, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Mary T. Dolan, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.Barbara Wright, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.Christal Pagan-Pumphrey, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.John Mitchell, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.Ronald L. Livingston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Zonetta Richardson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.Ronald Cotton, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.Becki S. Ritterman, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.Lawrence V. Wilder, Petitioner, v. Christopher J. Scolese, Acting Administrator, National Aeronautics and Space Administration, Agency.Lambert L. Locket, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Robert F. Howley, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.Catherine A. Bourgeois, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.Mildred M. Greer, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.Michele Gilchrist, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Tamara D. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Lorraine L. Townsend, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.Lesia L. Herron, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Shawnine D. Sorensen, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.Renee V. Holmes, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.Mary A. Brandon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Vitaly G. Marchenko, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.Jose R. Castro, Charles L. Figueroa, Jose E. Ortiz, Complainants, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.Yvonne Hamblin, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.Matthew P. Smith, Complainant, v. Wayne Clough, Secretary, Smithsonian Institution, Agency.Rachael L. Ferruggia, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Department of Defense Education Activity), Agency.Lorna M. Polk, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.Susan Johnson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.Earl C. Cates, Jr, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.Jerome A. Ragusa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.H. Miki Kimshin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.Delores Pritchett, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.Minza M. Shiraki-Higa, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.Bonita G. Ranes,1 Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.Tracy Mays, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.Gary M. Morin, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.Lynn M. Poindexter, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
