Domingo M.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Sep 6, 2018

0120162280 (E.E.O.C. Sep. 6, 2018)

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

Domingo M.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120162280

Hearing No. 471-2015-00131X

Agency No. IRS-14-0267-F

DECISION

On June 25, 2016, 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
June 3, 2016, final decision concerning his 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Senior Analyst, GS-1811-14, at the Agency’s Criminal Investigations
(CI) Division Field Office facility in Detroit, Michigan. On May 8, 2014, he filed an EEO
complaint in which he alleged that several senior management officials within CI discriminated
against him on the bases of race (African-American), disability (diabetes), age (53), and reprisal
(prior protected EEO activity) when:

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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1. On January 31, 2014, he was notified that he would be reassigned from the Field Office in
Detroit to the Agency’s headquarters in Washington, DC, effective at the end of June 2014.

2. On May 27, 2014, his reasonable accommodation request to remain in Detroit was denied.

3. On May 27, 2014, his medical information was disclosed to unauthorized individuals
without his consent.

4. On June 12, 2014, he was not selected for either of the two positions of Supervisory Special
Agent (SSA), IR-1811-14 in the Detroit Field Office.

5. On July 9, 2014, his reasonable accommodation request to telecommute from Detroit to
Washington, D.C. was denied.

6. On November 21, 2014, the Agency changed the Criminal Investigator leadership policy
and threatened him with a disciplinary action involving a directed reassignment to
Headquarters, forcing him to accept a demotion to Special Agent, GS-1811-13.

Complainant identified the following officials as being responsible for the alleged acts of
discrimination:

• The Director of Financial Crimes, his first-line supervisor (S1).

• The Deputy Director of Operations, his second-line supervisor (S2).

• The Director of Operations, his third-line supervisor (S3).

• The Director of Refund Crimes – the deciding official on his May 2014 reasonable
accommodation request (DO).

• The Director of Field Operations for the Northern Area – the deciding official on his second
reasonable accommodation request and the selecting official for the SSA positions in the
Detroit Field Office (SO)

• The Chief of the Criminal Investigations Division, his sixth-line supervisor (S6).

• The Reasonable Accommodation Coordinator (RAC).

• The Acting Assistant Special Agent in Charge of the Detroit Field Office – member of the
interview panel that failed to select him for the SSA position (P1).

• The Criminal Investigations Special Agent in Charge of the Detroit Field Office – member
of the interview panel that failed to select him for the SSA position (P2).

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request.
Consequently, 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.

Until 2010, Complainant had been working as a GS-1811-13 Special Agent with the Agency’s
Field Office in Detroit, Michigan. In 2010, he became a Senior Analyst with the Global Financial
Crimes Unit and was assigned to be a Liaison to the Computer Center in Detroit.

On January 17, 2013, S6 sent a memorandum to all CI employees detailing the CI Special Agent
Leadership and Mobility Policy. This policy document specified the CI career tenure policy.
Tenure requirements ranged from 18 months for an analyst at headquarters with SSA experience
to a maximum of 60 months for an SSA or Resident agent in charge. Tenure for an off-site
headquarters analyst was 24-36 months but could be extended for up to two years. The
memorandum noted that managers who stepped down to the special agent position would be given
priority placement in the field office of choice. S6’s memorandum further noted that CI was
continuing to explore increasing the number of off-site senior analyst and other managerial
positions and that off-site analyst positions would only be filled to the extent that headquarters was
adequately staffed. The memo also provided that a career board would convene annually to review
the performance of leaders who had met the maximum tenure requirement, assess CI’s future
needs, and make decisions as to where to place these individuals. Finally, the memorandum
provided that Special Agents in Charge would be designated as the selecting officials for all SSA
positions.

Incident (1) – Directed Reassignment:

Complainant began his tenure as a senior analyst on October 1, 2010, and reached maximum tenure
in October 2013. In accordance with the policy, he submitted a tenure review and requested that
his tenure be extended. He cited a number of reasons, including financial hardship relating to an
underwater mortgage, the academic performance of his children, the potentially negative impact
of the transfer on his wife’s career goals, his eligibility to retire in 2016, his potential plan to retire
in 2017, and his desire to move to an SSA position in Detroit. Although S1 recommended approval
of Complainant’s request, S3 denied it, noting that many of the job duties of the current position
had dissolved, and that Complainant had picked up other duties that could easily be performed by
other off-site or on-site analysts seeking to advance. On January 31, 2014, S3 informed
Complainant that he would be reassigned to the Agency’s headquarters in Washington, D.C.,
effective May 5, 2013. The memorandum noted that the reassignment was in the best interests of
CI and that failure to report could result in disciplinary action unless provisions were made.

Complainant immediately filed a request for reconsideration in which he raised his medical
condition for the first time, reporting that he was diagnosed as having diabetes on June 11, 2013,
and that the Agency had him on restricted duty until September 13, 2013.
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Complainant also argued that the directed reassignment was in retaliation for participation in a
prior EEO case where he revealed an additional medical disability.

S3 explained that the directed reassignment was issued pursuant to the January 17, 2013 mobility
and tenure policy. She averred that prior to issuing the reassignment memorandum, she and S1
had a telephone conference with Complainant and informed him that he had reached the maximum
tenure as an offsite Senior Analyst. She told Complainant that the Career Board had met and
discussed his situation and the situations of all similarly situated individuals, including those senior
analysts and SSAs who had reached or were about to reach maximum tenure in their current
positions. S3 also told Complainant that the Agency did not intend for individuals assigned to
those positions to remain in the positions and deny others an opportunity for development. She
told Complainant that if he wanted to remain in the Detroit commuting area, he could choose to
do so by stepping out of the leadership program and request a step back to the GS-13 special agent
position. S2 stated that CI had a difficult time filling senior analyst positions in Headquarters and
as a result, analysts in Headquarters are generally allowed to stay longer if they choose. S1 averred
that the business need for Complainant’s off-site senior analyst position in Detroit had greatly
diminished and was no longer necessary but there was still a great need for senior analysts in
Headquarters.

Six of the twenty-nine management officials who were issued directed reassignment letters stated
that they received extensions. With one exception, the reasons given for granting these extensions
had to do with CI’s business needs. That exception involved an overseas attaché who was granted
a two-week extension to allow his children to finish the school year and to pack his household.

In a memo dated August 18, 2014, S1 informed Complainant that his reassignment was properly
handled in accordance with CI’s current law enforcement leadership for succession strategy. The
decision states, “All law enforcement leadership IR-04 frontline supervisors and GS-14 off-site
analysis who reached maximum tenure in their positions were discussed at a career board meeting
and over 40 of these law enforcement officers who worked outside of DC were directed to DC to
meet the organizational needs.” The memorandum further noted that there was a business need
for Complainant’s presence in D.C., specifically within the area of criminal restitution. S1 stated
in the memo that having a physical presence in D.C. was necessary because analysts needed to
work face to face with the other sections within headquarters to ensure consistency in meeting
organizational goals. Additionally, S1 noted that with the numerous projects, assignments, tasks,
and congressional inquiries that needed immediate action, onsite senior analysts needed to meet
with their other counterparts in other sections, and for that reason, those actions could not be
accomplished as an off-site senior analyst.

Thirteen management officials were permitted to remain in the same position despite reaching
maximum tenure. Eleven of those were white males age 45 and over with no reported disabilities.
One was an Asian male and one was a black male. The Agency provided various reasons for the
individual decisions to keep these agents beyond maximum tenure, including: a hard to fill
position, the merger of office, international agreements, costs related to the number of relocations
in one fiscal year, inability to fill a position as a competitive vacancy due to having no applications,
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very high employee performance being modeled, pending retirement coupled with a hard to fill
position, and an extension granted to permit a spouse to get a transfer.

Thirteen individuals, including Complainant, agreed to step down to special agent position in order
to avoid reassignments with start dates ranging from May to August 2014. This group included
seven Whites, two Hispanics, three Blacks and one Asian. Complainant was the only one with a
disability. Seventeen individuals accepted reassignment, including ten Whites, two Hispanics and
one Asian. Four of those who accepted reassignment were unaccounted for because the page
containing the data pertaining to these employees was missing from the record. Eight individuals
retired, including six Whites and two Blacks.

Incident (2) – Denial of Complainant’s First Reasonable Accommodation Request

On February 8, 2014, Complaint filed the first of two reasonable accommodation requests in which
he sought to remain in his current position as an off-site senior analyst based in Detroit or be
laterally reassigned to a GS-14 undercover program manager or to a supervisory special agent
position in the Detroit area. He described his medical conditions as diabetes, hypertension, and
high cholesterol. He stated that the directed reassignment would exacerbate his medical condition
and that stepping down to a Special Agent GS-1811-13 position would also aggravate his physical,
mental, and emotional stress. On March 10, 2014, his request was assigned to the RAC and
between March 14 and April 18, 2014, the parties engaged in correspondence to address the
absence of any medical documentation to substantiate Complainant’s request. Complainant
responded on March 14, 2014, that Agency medical doctors had already diagnosed him as diabetic
as part of his annual screening in June 2013 and insisted that the Agency already had his medical
documentation on file. The RAC responded that although Complainant might have provided
medical documentation in the past, she did not have access to that information. In order to address
Complainant’s reasonable accommodation request, the Agency extended Complainant’s report
date to June 15, 2014.

After reviewing Complainant’s reasonable accommodation request in early April 2014, the
Agency placed Complainant on restricted duty pending an assessment of his ability to meet
medical and physical requirements of the Special Agent position based on Complainant’s
assertions that there had been an exacerbation of his medical condition due to the directed
reassignment, and his assertion that the accompanying stressed posed a potential danger. On April
11, 2014, S2 emailed Complainant stating that if Complainant had additional medical
documentation regarding headaches, dizziness, and mental anguish, to submit that information to
S1.

On April 18, 2014, Complainant provided to S1, S3, and the RAC a letter from his personal
physician dated April 17, 2014, identifying his condition as type 2 diabetes mellitus complicated
by diabetic neuropathy and hypertension. Complainant’s doctor stated that he had no current
medical condition that would affect his ability to perform the full range of essential law
enforcement or training duties of an IRS-CI Special Agent.
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Complainant’s physician also stated that Complainant’s current medical care consisted of lifestyle
modification, frequent laboratory evaluation, and follow-up care with an ophthalmologist,
nephrologist, and podiatrist, and that this multispecialty approach was the standard practice for
treatment of diabetes. The physician did not identify any unique medical treatment that could only
be provided by him or his team of medical providers. The physician expressed confidence that
Complainant could obtain a similar standard of care at any medical center in the U.S. such as the
George Washington, Georgetown or Johns Hopkins medical centers in the Metro D.C. Area.

S1 forwarded the letter to a Medical Review Officer within the Office of Comprehensive Health
Services (CHS-MRO) in order to obtain advice regarding both Complainant’s fitness for duty and
his reasonable accommodation request. On May 6, 2014, the CHS-MRO filled out a medical
review form in which he concurred with the recommendations of Complainant’s physician. Based
on the CHS-MRO’s decision to medically clear Complainant for duty with no restrictions on May
6, 2014, the Agency returned Complainant to full duty status on that date. On May 27, 2014, the
Agency denied Complainant’s reasonable accommodation request, finding that although
Complainant had a disability qualifying him for reasonable accommodations, his requested
accommodations (lateral reassignment to GS-14 positions in the Detroit area) were unnecessary
based on the report of the CHS-RMO. S1, who signed the denial, noted that none of the duties or
functions of the analyst job in D.C. were limited by Complainant’s medical condition.

On June 5, 2014, the Agency informed Complainant that it would not grant a second extension of
the career board decision reassigning Complainant to Washington, D.C. as a senior analyst,
effective June 15, 2014. The email informed Complainant that if he wanted to stay in his current
commuting area, the Agency would agree to place him in a GS-1811-13 special agent position in
the Detroit field office as long as he submitted the written request to step down prior to the June
15, 2014 report date.

That same day, Complainant responded in writing, stating that he was not offered a reasonable
accommodation, and was not able to comply with the directed reassignment because he chose to
follow his doctor’s recommendation to continue receiving medical treatment in his current
geographical location, the Greater Detroit area. He appealed the denial of his reasonable
accommodation request to DO. On August 4, 2014, DO issued a decision in which he concluded
that the Agency was unable to reassign Complainant to any of the three positions that he had
requested. Based on the determination made by the MRO, the DO found that Complainant did not
require the accommodations requested to perform the duties of a GS-1811 special agent. DO noted
that the business need for the off-site senior analyst position in Detroit had greatly diminished and
was no longer necessary.

Incident (3) – Disclosure of Medical Information

On July 15, 2014, Complainant filed a complaint with the Inspector General (IG) alleging that S1,
S2, and S3 disclosed confidential medical records to the CHS-MRO in violation of the
Rehabilitation Act on May 27, 2014, the date on which his request to be laterally reassigned to
another GS-14 position in Detroit had been denied.
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According to the IG’s report, several witnesses indicated that Complainant self-disclosed his
medical condition to Agency management, forwarding his medical information to S1 and the RAC.
One witness stated that management had felt that there was a fitness for duty issue and that they
needed to forward the information to a medical examiner on a need to know basis. A second
witness stated that Complainant had self-disclosed his medical information to a management
official, intending for that information to support both his fitness for duty and his request for a
reasonable accommodation. A third witness interviewed by the IG confirmed that the Agency uses
CHS to conduct medical reviews, and that the CHS-MRO was responsible for determining whether
a Special Agent is able to perform the full range of his duties. This witness confirmed that it is
entirely appropriate for IRS-CI personnel to refer medical documentation to the CHS-MRO. In
addition, the Agency’s policy states that if a medical condition is reported or observed that might
pose a safety risk in the performance of law enforcement duties, the manager must report the
condition to the MRO for further review, and the employee is placed on restricted duty until the
matter is resolved. On May 21, 2015, the IG issued its report concluding that the inquiry failed to
substantiate Complainant’s claims.

Incident (4) – Nonselection for SSA Position

On June 11, 2014, the Agency issued a certificate for an SSA vacancy in Detroit. The certificate
showed that Selectee 1 ranked first, Selectee 2 ranked second, and Complainant ranked third. On
pre-interview rating scores based on candidates’ answers to a series of written questions, Selectee
1 and Selectee 2 both scored 94 and Complainant scored 92.5. In the second series, Selectee 1
scored 94, Selectee 2 scored 89.5, and Complainant scored 95.5. In their responses to a third
series of questions regarding exceptional accomplishments, Selectee 1 scored 100 while
Complainant and Selectee 2 both scored 88.

The candidates were also ranked on technical competency. According to the ranking summaries
in this area, Selectee 1 received a technical ranking score of 65 with 5 additional points for
exceptional accomplishments. Selectee 2 received a technical competency of 80 with three
additional points for exceptional accomplishments. Complainant received a technical competency
ranking score of 85 with three additional points for exceptional accomplishments.

P1, P2, and a third member of the selection who was not named in the complaint (P3) interviewed
Complainant and the other two candidates. After completing the interviews, the panel
unanimously recommended that SO offer offers to Selectee 1 and Selectee 2. SO stated that he
based his decision to select Selectee 1 and Selectee 2 entirely on the recommendation of the
interview panel members.

Complainant became aware of the non-selection on June 12, 2014. That same day, he sent an
email to S1 formally asking to be reassigned to a GS-13 special agent position in the Detroit field
office, explaining that he could not relocate to Washington, D.C. due to his medical condition and
stating that he was making the request under the threat of disciplinary action.

Incident (5) – Denial of Complainant’s Second Reasonable Accommodation Request
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On June 12, 2014, Complainant filed his second reasonable accommodation request, asking to be
allowed to stay in his current position and telecommute from Detroit. He stated that his physical
presence in Washington, D.C. was not required to perform the essential functions of his current
job, that telecommuting from Detroit would permit him to continue seeking medical treatment
from the various specialists he had been seeing in Michigan, and that returning to a Special Agent
position at the GS-13 level in Detroit would subject him to increased mental, physical, and
emotional stress, exacerbating his medical condition and worsening his disability.

On August 18, 2014, SO issued a decision denying Complainant’s second reasonable
accommodation request seeking permission to telecommute from Detroit for the Washington, D.C.
GS-14 analyst position. The decision memorandum notes that Complainant stepped out of the
senior analyst position and accepted a GS-13 special agent position in Detroit prior to reporting
for duty in the onsite headquarters position. The memo further noted that Complainant’s requested
accommodation, telecommuting from Detroit, was for a position that Complainant no longer held.
Third, the decision addressed the position in Washington, D.C., stating that the duties of an on-site
analyst position with a post of duty in Washington, D.C. could not be done remotely or via
telecommute. In addition, the decision repeated many of the reasons for Complainant’s directed
reassignment to Washington, D.C. that are described above.

Incident (6) – Issuance of New CI Leadership and Succession-Planning Strategy

On November 3, 2014, the Agency issued a new Criminal Investigation Leadership Selection and
Succession Planning Strategy. The new policy included change in tenure requirements in that CI
would no longer use maximum tenure to facilitate leadership discussions and reassignments. On
November 26, 2014, S6 issued a memorandum explaining the change. S6 stating that CI’s
management had identified a better metric for succession planning. The memorandum stated that
CI would focus on leadership effectiveness as the driving force in the selecting and progressing of
leaders through the organization. This new approach would continue to focus on balancing
organizational needs with employee preferences, but would utilize effectiveness versus maximum
tenure as the key determinant factor in succession decisions. A Leadership Review Board (LRB)
would replace the Career Board. The Chief or deputy chief of CI would serve as the Chair and the
Chair would make final determinations with input from members. Under the new policy, all
managers and management officials would have the option to withdraw from the leadership
progression path at any time in their careers by volunteering to be placed in a lower graded
position. The policy also provided that managers who step down would not have their careers
impacted if they decided to rejoin management at a later point.

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
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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”).

Disparate Treatment – Incidents (1), (4) & (6)

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). This analysis applies to disparate treatment claims brought under the
Rehabilitation Act. Prewitt v. United States Postal Service, 662 F. 2d 292, 310 (5th Cir. 1981).

As a first step, Complainant would typically 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. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed in this case, however, since the Agency articulated legitimate
and nondiscriminatory reasons in support of its decisions regarding incidents (1), (4), and (6). See
U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't
of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). Regarding incident (1), the
Agency had a policy in place that provided for rotation of GS-14 off-site analysts in and out of
Headquarters positions and there was an operational need for Complainant’s presence at
Headquarters. As to incident (4), although Complainant was one of several highly qualified
candidates for the two SSA positions, the selection panel had determined that the two selectees
were the most qualified. Concerning incident (6), the Agency’s senior management had
determined that leadership effectiveness was a more effective metric than maximum tenure in
succession planning.

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be demonstrated
by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally
find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No.
0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211
(May 30, 2008). With regard to incidents (1) and (6), Complainant repeats on appeal many of the
arguments he raised throughout the processing of his complaint, asserting that White employees
were allowed to remain in their management positions even though they had reached their
maximum tenure. However, as noted above, the Agency cited operational needs as the reason for
allowing these employees to remain in their positions. Complainant has not shown, in any way,
that he had been singled out as a result of statutorily prohibited considerations. He also contends
that the implementation of the career succession policy was discriminatory in that it affected
minorities and individuals with disabilities in a disparate manner.
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In other words, the career succession planning policy that was used to justify rotating GS-14
Special Agents to Headquarters either had a disparate impact or constituted class-wide disparate
treatment. However, he has not provided the necessary analysis to support such a claim. Overall,
Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses
other than himself nor documents which contradict the explanations provided by S1, S2, S3, S6,
SO, or any other management official, or which call into question the veracity of these individuals.
We therefore agree with the Agency that Complainant failed to sustain his burden to prove that the
Agency reassigned him to Washington, D.C. or changed its career succession policy on account
of his race, age, disability, or previous EEO activity.

As to incident (4), Complainant could demonstrate pretext in non-selection cases by showing that
his qualifications for the position were plainly superior to those of the two Selectees. Hung P. v.
Dep't of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Complainant should
bear in mind, however, that agencies have broad discretion to choose among equally qualified
candidates as long as the selection is not based on unlawful considerations. Complainant v. Dept.
of Homeland Security, EEOC Appeal No. 0120141478 (July 31, 2015). They may select
candidates with fewer years of experience if they believe that such candidates are best qualified to
meet the needs of the organization. See Complainant v. Dept. of Justice, EEOC Appeal No.
0120131151 (Feb. 25, 2015). They may even preselect a candidate as long as the preselection is
not premised upon a prohibited basis. See Complainant v. Dept. of Homeland Security, EEOC
Appeal No. 0120132858 (Mar. 9, 2015). As previously noted, Complainant and the two selectees
were considered to be well-qualified to serve as SSAs. While it is true that Selectee 1 received a
much lower ranking on technical competence than Complainant and Selectee 2, technical
competence was one of several factors that were weighed by the selection panel in making their
determinations. Their endorsement of the two selectees was unanimous. While Complainant did
have experience as a GS-14 analyst, he has not shown that the panel’s consideration of other
relevant factors was so unreasonable as to be an indicator of pretext. We therefore find, as did the
Agency, that the panel’s determination that the two selectees were the best-qualified candidates is
entirely supported by the record, and that Complainant’s qualifications were not plainly superior
to those of the selectees.

Harassment – Incidents (1), (4), & (6)

Because Complainant has not established a connection between his race, age, disability, or
previous EEO activity with respect to incidents (1), (4), and (6), no further inquiry is necessary as
to whether these incidents rise to the level of harassment or constitute separate acts of
discrimination under disparate treatment theory. Tynisha H. v. Dept. of State, EEOC Appeal No.
0120141395 (March 17, 2017).

Reasonable Accommodation – Incidents (2) & (5)

Agencies are required to reasonably accommodate the known limitations of qualified individuals
with disabilities unless they can show that doing so would result an undue hardship upon their
operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable
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Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement
Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture,
EEOC Appeal No. 0120120400 (December 3, 2015).

An individual with a disability is one who: (1) has a physical or mental impairment that
substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is
regarded as having such an impairment. Melanie F. v. Dept. of Homeland Security, EEOC Appeal
No. 0120150163 (May 19, 2017) citing 29 C.F.R. § 1630.2(g). The Agency conceded that
Complainant is an individual with a disability.

A qualified individual with a disability is an “individual with a disability who satisfies the requisite
skill, experience, education, and other job-related requirements of the employment position such
individual holds or desires, and who, with or without reasonable accommodation, can perform the
essential functions of such position. Julius C. v. Dept. of the Air Force, EEOC Appeal No.
0120141294 (June 16, 2017) citing 29 C.F.R. § 1630.2(m). Complainant’s own personal
physician, while urging that Complainant be allowed to remain in Detroit, stated that Complainant,
despite his diabetes, neuropathy, and hypertension, was able to perform the essential functions of
a GS-1811 Special Agent.

Assuming Complainant is a qualified individual with a disability, Complainant would be entitled
to an effective accommodation, but not necessarily the accommodation of his choice. Kristie D.
v. U.S. Postal Service, EEOC Appeal No. 0120160236 (Feb. 6, 2018). In this case, his desired
accommodation was to remain in a GS-14 Analyst position based in the Detroit metro area. With
regard to his first accommodation request, lateral reassignment to another GS-14 position in
Detroit, the record amply demonstrates that the Agency operational needs for those positions had
greatly diminished and that Complainant’s expertise in criminal restitution was needed at
headquarters. Complainant was given the opportunity to apply for the GS-14 SSA vacancies in
Detroit. He was also given the option of stepping down to a GS-13 Special Agent position, which
he ultimately took. As to his second accommodation request, that he be allowed to telecommute
from Detroit, the Agency had determined that Complainant needed to be present at Headquarters
in order to participate in meetings with analysts from other sections on the various interdisciplinary
and cross-disciplinary projects that comprised the bulk of CI’s workload. Moreover, had he
relocated to Washington, D.C., Complainant would have been able to receive the necessary
treatment and medical care from world-class medical facilities within the Washington, D.C. area.
Given the Agency’s extensive need to have its senior personnel at its Headquarters, we find that
allowing Complainant to remain in Detroit after his maximum tenure in his GS-14 analyst position
had lapsed would have imposed an undue hardship upon its operations. Since Complainant’s own
physician admitted that he could perform the essential duties of a Special Agent, we find that the
Agency had satisfied its obligations under the Rehabilitation Act by allowing Complainant to
accept the GS-13 Field Agent position.

Disclosure Of Medical Information – Incident (3)

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The Rehabilitation Act prohibits disclosure of an employee’s medical information except under
the following circumstances: (1) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary accommodations; (2) First aid
and safety personnel may be informed, when appropriate, if the disability might require emergency
treatment; (3) Government officials investigating compliance with this chapter shall be provided
relevant information on request; (4) The information may in certain circumstances be disclosed to
workers’ compensation offices or insurance carriers; and (5) Agency officials may be given the
information to maintain records and evaluate and report on the Agency’s performance in
processing reasonable accommodation requests. Policy Guidance on Executive Order 13164:
Establishing Procedures to Facilitate the Provision of Reasonable Accommodation, Question 20
(Oct. 20, 2000). The CHS-MRO had a contractual responsibility for providing medical advice
regarding CI employees, including advice with regard to reasonable accommodations and fitness-
for-duty. As such, the disclosure of Complainant’s medical information by S1 and S3 to the CHS-
MRO fell squarely within the fifth exception set forth in our policy guidance. We therefore find
Complainant’s claim as it pertains to this incident to be without merit.

Constructive Discharge Claim Raised For The First Time On Appeal

In his appeal brief, Complainant states that by denying his two reasonable accommodation requests
and demoting him from a GS-14 Senior Analyst position to a GS-13 Field Agent position, the
Agency forced him to retire prematurely. In other words, he appears to be raising an issue that
was not addressed in the complaint or in the Agency’s decision, namely whether he was
constructively discharged. The Commission does not consider allegations raised for the first time
on appeal. See e.g. Shannon v. U. S. Postal Service, EEOC Appeal No. 01A13956 n. 2 (Oct. 24,
2002); Wright v. U.S. Postal Service, EEOC Appeal No. 01840952 (Oct. 29, 1986) (The
Commission is precluded from considering factual allegations raised for the first time on appeal).
Complainant is advised that if he wishes to pursue his claim of constructive discharge through the
EEO process, he should initiate contact with an EEO counselor within fifteen days after he receives
this decision. See Shannon, supra; Brisbane v. U. S. Postal Service, EEOC Appeal No. 01A13962
n. 1 (Sept. 26, 2001); Taylor v. Dept. of Veterans Affairs, EEOC Appeal No. 01A04776 (Jan. 4,
2001).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision finding no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The Agency’s request must be
submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

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

September 6, 2018
Date