Dewey R.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Aug 27, 2019

0120181450 (E.E.O.C. Aug. 27, 2019)

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

Dewey R.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.

Appeal No. 0120181450

Agency No. DEA-2016-01093

DECISION

On March 22, 2018, 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
February 9, 2018 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-13 Special
Agent/Criminal Investigator in the Agency’s San Juan, Puerto Rico Office, which is part of the
Drug Enforcement Administration’s Caribbean Division. On October 18, 2016 (and amended on
December 30, 2016), Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability (Post-Traumatic Stress Disorder (PSTD) and Traumatic
Brain Injury (TBI)) and reprisal (prior EEO activity) when: (1) Agency management denied his
request for a reasonable accommodation on August 8, 2016; (2) on September 12, 2016,
management officials placed him on limited duty status and ordered him to submit to a Suitability
Review Protocol (SRP); (3) management denied his reasonable accommodation request to modify
the Special Agent Promotion Program (SAPP) assessment process on or about December 1, 2016;

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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and (4) the Special Agent in Charge returned his application for promotion to GS-14 to him on or
about December 28, 2016, and did not “route” it in the same manner as the applications of other
applicants for promotion.

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.
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 or reprisal as alleged.

FACTUAL BACKGROUND

Complainant suffered a TBI and multiple shrapnel injuries while serving in the military in Iraq in
2004. Complainant claimed that he submitted medical documentation of his conditions to the
Agency’s Health Service Unit (HSU) over the years, and that his impairments were “well under
control” due to medications, therapy, and lifestyle changes. Complainant’s position required him
to carry a firearm, conduct investigations and enforcement operations, work in an international
airport requiring frequent encounters with non-compliant suspects and persons of interest, as well
as conduct firearms and tactical training.

On May 11, 2016, Complainant requested an extension of his tour of duty in San Juan. The request
was denied based upon an assessment of his performance and the belief that Complainant’s career
would benefit by taking a position in another division to enhance his investigative skillset and
experiences in law enforcement. On May 27, 2016, Complainant submitted a request for
reasonable accommodation claiming that he needed to stay in Puerto Rico to be near his medical
providers.2 Complainant’s accommodation request was referred to HSU for review. After
Complainant provided additional medical information at HSU’s request, HSU determined that
there was sufficient information for Complainant to remain in Puerto Rico.

On June 27, 2016, Complainant provided a note from his psychiatrist to his supervisor stating that
Complainant needed to take 30 days of sick leave for psychiatric treatment. The Assistant Special
Agent in Charge, Complainant’s third-line supervisor (S3), requested an SRP assessment to be
performed to ascertain Complainant’s ability to safely perform his duties as a Special Agent. As
part of the SRP, Complainant was examined by an independent psychologist and an independent
psychiatrist (MD) over two days on November 2-3, 2016. Both examiners concluded that
Complainant was fit for full duty as a Special Agent and that he was fully responsible and
accountable for all aspects of his personal and professional behavior. Upon receiving the
examiners’ conclusions in December 2016, management returned Complainant to full duty.

2 The record also indicates that Complainant requested a flexible schedule. Management asserts
that it agreed to this request.

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On August 9, 2016, Complainant sent an email to the facilitator (PP) of the SAPP process3
claiming that he has not been promoted to any GS-14 position due to his disabilities that are placing
him at a disadvantage in the SAPP assessment process. PP responded that while she could not add
points to Complainant’s SAPP score, she would pursue information on what accommodations were
needed for his testing experience. She further asked him to provide documentation of his diagnosis
as well as a description of how he was affected so she could know what accommodations were
necessary. She also stated the following:

In other words, you mention that your disabilities are placing you at a disadvantage
and are impeding your opportunities to fair[ly] compete for promotion, but I need
to know how that is occurring in order to alleviate any unfair disadvantage during
testing. For instance, if you are having difficulty concentrating, I can ensure a quiet
room for testing, or if there is special equipment you need or have used previously,
please let me know. I just need some direction on what accommodation you
require; otherwise, any changes or accommodation I assume might help, may in
fact not be what you need.

In response, Complainant sent an email stating that he gets “overwhelmed more easily” in the
examination due to his conditions, and his conditions cause him to get lower scores than agents
without disabilities. Complainant also stated that he would need more time and more frequent
breaks. On September 27, 2016, PP again emailed Complainant asking him to submit
documentation of his diagnosis as well as details concerning the accommodations he was
requesting. Complainant responded by stating that HSU had information concerning his diagnosis
and that he requested an adjustment to the evaluation and point scale for the SAPP but did not
specify what adjustments he felt were needed or provide any information to support any such
adjustment. On October 18, 2016, PP again advised Complainant that she needed documentation
of his diagnosis. Specifically, PP advised Complainant that she needed information from a
qualified professional stating a description of his current symptoms, how those symptoms could
affect the testing session, and what specific suggestions for accommodation of the testing
procedures were requested. She further stated that “perhaps knowing more about the exercises
would assist [the professionals] in the documentation of the testing needs you have as a result of
your diagnosis” and provided a detailed description of the SAPP assessment exercises.
Complainant responded by again asking PP to obtain information from HSU as to his medical
condition.

3 SAPP is a process by which employees at the GS-13and GS-14 levels can apply for a promotion.
The record shows that Special Agents go through the SAPP process and receive a promotion score,
and that score is used for the selection process. The SAPP process has two components to rate the
Special Agents for promotion, one being a supervisory rating based on seven or eight dimensions
for 50 percent of a final promotion score. The other portion of the SAPP promotion score is a one-
day Assessment Center which has a variety of exercises in the form of role-playing, a computerized
in-basket which simulates what might come through a supervisor's in-basket in a work setting, and
a situational judgment test on the computer.
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PP replied by stating that she could not request his medical file due to confidentiality protections.
The undisputed record shows that Complainant never provided any medical information in support
of a specific accommodation request.

In December 2016, Complainant gave his second-line supervisor (S2) a memorandum for S2 to
sign reflecting his concurrence with Complainant’s application for consideration for a GS-14
vacancy in Puerto Rico. S2 signed the memorandum and had his secretary return it to Complainant
so Complainant could send the application to the dedicated email address that was set up to receive
those applications. S2 indicated that he had his secretary return it to Complainant to submit, so
that Complainant could have a time-stamped record of when his application was submitted. The
record shows that S2 followed up with Complainant within a day or two to see if Complainant
needed him to do anything else. Complainant stated that he had submitted the application and did
not need anything else. S2 affirmed that Complainant’s medical condition was not a factor in his
decision to give the memorandum to Complainant to submit and actually felt like it was an
advantage for Complainant to be able to have it on his computer in his sent email box.

CONTENTIONS ON APPEAL

On appeal, Complainant raises a new claim that he was reassigned from Puerto Rico to Miami in
May 2017. Complainant argues that PP was deceptive and attempted to misguide the EEO
investigator when she stated that he failed to formally request an accommodation. Complainant
contends that the Agency failed to accommodate his condition. Accordingly, Complainant
requests that the Commission reverse the final decision.

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. (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”).

Claims (1) and (3) – Denial of Reasonable Accommodation4

The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See
29 C.F.R. § 1630. 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

4 We assume that Complainant is an individual with a disability, within the meaning of the
Rehabilitation Act.
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(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). 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).

When the need for accommodation is not obvious, an agency may require that the individual with
a disability provide documentation of the need for accommodation. 29 C.F.R. pt. 1630 app. §
1630.9. The agency may require only the documentation that is needed to establish that the
individual has a disability and that the disability necessitates reasonable accommodation.
Enforcement Guidance on Reasonable Accommodation at Question 6. The Commission notes that
a protected individual is entitled to a reasonable accommodation; he is not necessarily entitled to
the accommodation of choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005
(Feb. 17, 1994). The employer may choose among reasonable accommodations so long as the
chosen accommodation is effective. U.S. Airways v. Barnett, 533 U.S. 391, 400 (2002).

With regard to Claim (1), Complainant asserts that in May 2016, management officials denied his
request for a flexible work schedule and to extend his tour of duty in San Juan. Initially,
management denied Complainant’s request. Complainant then submitted a formal request for
reasonable accommodation to continue his assignment in San Juan. The record shows that the
Agency engaged in the interactive process and allowed Complainant to remain in Puerto Rico
pending HSU’s review of his medical information. HSU ultimately determined that there was
support for Complainant's request to remain in San Juan. After HSU made its determination,
Complainant was not required to leave San Juan. HSU also concluded that Complainant did not
provide medical information that would allow HSU to rule on his request for a flexible schedule.
Although Complainant did not provide medical information to support his request for a flexible
schedule, the undisputed record shows that management had no issue with the request because
Complainant was assigned to a unit that already worked flexible hours. In addition, the record is
devoid of evidence that Complainant was ever denied a specific request to change his schedule.
Accordingly, we find that the record fails to establish that Agency management officials denied
Complainant's reasonable accommodation request with respect to Claim (1).

With respect to Claim (3), Complainant claims that management officials denied his request for
modifications to the SAPP assessment process to accommodate his mental disabilities. The record
is devoid of evidence to show that Complainant provided medical documentation to support any
specific accommodation request. The Agency met its obligation to engage in the interactive
process and notified Complainant on numerous occasions of what, specifically, it needed to
proceed with his request. Complainant refused to provide any additional information in support
of his request. As noted above, when an individual's disability or need for reasonable
accommodation is not obvious, and he fails to provide reasonable documentation requested by the
employer, the employer will not be held liable for failure to provide the requested accommodation.
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, EEOC No. 915.002, Question 6 (Oct. 17, 2002).
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Here, the record shows that Complainant failed to provide the Agency sufficient information or
medical documentation to assist in addressing his condition regarding the SAPP process.
Therefore, the Commission finds that Complainant has not established that the Agency failed to
provide him with a reasonable accommodation in violation of the Rehabilitation Act as to this
claim.

Claim (2) – SRP Review

The Rehabilitation Act places certain limitations on an employer's ability to make disability-related
inquires or require medical examinations of employees only if it is job-related and consistent with
business necessity. 29 C.F.R. §§ 1630.13(b), 14(c). Whether or not Complainant is an individual
with a disability is irrelevant to the issue of whether the Agency properly ordered him to undergo
a fitness-for-duty examination because the Rehabilitation Act's limitations regarding disability-
related inquiries and medical examinations apply to all employees. See 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). Employers may make a disability-related inquiry or require a medical
examination if job-related and consistent with business necessity. Id. at 5. This requirement is
met when the employer has a reasonable belief, based on objective evidence, that: (1) an
employee's ability to perform the essential job functions is impaired by a medical condition; or (2)
that an employee poses a direct threat due to a medical condition. Id.
This means that the employer must have a reasonable belief based on objective evidence that an
employee will be unable to perform the essential functions of his job because of a medical
condition. Id. Objective evidence is reliable information, either directly observed or provided by
a credible third party, that an employee may have or has a medical condition that will interfere
with his ability to perform essential job functions or will result in a direct threat. Id. Where the
employer forms such a belief, its disability-related inquiries and medical examinations are job-
related and consistent with business necessity, if they seek only the information necessary to
determine whether the employee can perform the essential functions or work without posing a
direct threat to self or others. Id. It is the burden of the employer to show that its disability-related
inquiries and requests for medical examination are job-related and consistent with business
necessity. See Cerge v. U.S. Dep't of Homeland Sec., EEOC Appeal No. 0120060363 (Oct. 9,
2007); Luvenia S. v. Dep’t of Def., EEOC DOC 0120172969 (Feb. 26, 2019).

Complainant asserts that in early September 2016, management placed him on limited duty and
ordered him to undergo an SRP. S3 explains that when Complainant provided medical
documentation to HSU in June and July 2016 to support his request to remain in San Juan as a
reasonable accommodation, management became aware of aspects of his medical condition that
could potentially pose a safety risk. S3 notes that MD stated that Complainant was taking various
medications for his PTSD condition and had to take emergency leave for one week in July 2016
due to what she described as a “psychological ailment.” Complainant additionally needed a 30-
day medical leave period for treatment. S3 also states that Complainant had used approximately
248 hours of sick leave and 88 hours of annual leave between May 30, 2016, and mid-August
2016.
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We find that management had a reasonable belief that Complainant could not safely perform the
essential functions of his position based on objective evidence. According to both Caribbean
Division management officials and HSU personnel, this was the first they had learned about the
extent of Complainant’s psychological impairments. S3 explained that based on these reasons,
and because Complainant was a federal law enforcement officer who carried a firearm; worked in
an international airport; and assisted with firearms training, he made a request that Complainant
undergo an SRP.

While Complainant contends that management knew about his PTSD diagnosis prior to 2016, it
does not appear that Caribbean Division management had any details regarding Complainant's
condition prior to the medical documentation he submitted to support his May 27, 2016, request
for reasonable accommodation. Once management was presented with such information, and
given the nature of Complainant's law enforcement position, HSU and Complainant's managers in
the Caribbean Division reasonably determined that it would be prudent to have him examined to
determine his suitability for his firearm-carrying SA position. Accordingly, we conclude that
Complainant has not shown that the request for the SRP and placement in temporary limited duty
violated the Rehabilitation Act.

Disparate Treatment

Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate
treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First,
Complainant must establish a prima facie case by demonstrating that he was subjected to an
adverse employment action under circumstances that would support an inference of
discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S.
567, 576 (1978). Second, the burden is on 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). Third,
should the Agency carry its burden, Complainant must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the Agency were not its true
reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

The Commission will assume arguendo that Complainant established a prima facie case of
discrimination and reprisal. As more fully discussed above, the Agency articulated legitimate,
non-discriminatory and non-retaliatory reasons for its actions in Claims (1) – (3). Regarding Claim
(4), the undisputed record shows that on December 23, 2016, Complainant submitted a
memorandum to S2, S3, and his first-line supervisor at the time expressing his interest in a GS-14
Criminal Investigator/Staff Coordinator position in Puerto Rico. S2 explained that there were
multiple ways to submit the signed memorandum: a candidate could send it directly to the “1811
vacancy mailbox,” the secretary could send it to the vacancy mailbox, or the supervisor could send
it to the vacancy mailbox. Instead of S2 sending or having his secretary forward Complainant's
promotion package to Agency headquarters via the vacancy mailbox, S2 had his secretary return
it to Complainant so that he could send it himself.
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Complainant asserts that this put him at a disadvantage. S2 explained that he wanted Complainant
to send the memorandum so that he would have a time and date-stamped receipt of his submission.
S2 stressed that he had done the same for previous agents as well and that he would send it himself
or direct his secretary to send it in such situations if the agent was in the field or if the agent was
on temporary duty assignment outside of the office. Complainant did not present evidence to
refute S2’s assertions nor does he assert that he was unable to submit his promotion package in a
timely manner. We also find the record devoid of evidence that Complainant suffered any other
adverse consequence because of S2’s action.

We find that Complainant failed to show that the Agency’s legitimate, non-
discriminatory/retaliatory explanation for its actions was a pretext or otherwise motivated by
discriminatory or retaliatory animus. In addition, we find the record devoid of evidence of
discriminatory or retaliatory animus on the part of any responsible management official.
Accordingly, we find that Complainant has not established discrimination or retaliation as
alleged.5

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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

5 To the extent that Complainant wishes to raise a new claim not previously accepted as part of
this complaint, the Commission has held that it is not appropriate for a Complainant to raise new
claims for the first time on appeal. See, e.g. Torres v. U.S. Postal Serv., EEOC Appeal No.
01934108 (June 10, 1994). Should he wish to pursue these claims, Complainant is advised to
contact an EEO counselor to begin the administrative process.
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twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition.
See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must
be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the
absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received
by mail within five days of the expiration of the applicable filing period. See 29 C.F.R.
§ 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also
include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
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.

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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

August 27, 2019
Date