Tara Y.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Dec 7, 2018

0120172028 (E.E.O.C. Dec. 7, 2018)

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

Tara Y.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120172028

Agency No. HSCBP245222015

DECISION

On May 17, 2017, 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
April 7, 2017, 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. 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 an Instructional
Systems Specialist (ISS), GS-13, at the Agency’s Performance Support Division, Border Patrol
Academy, in Artesia, New Mexico. As an ISS, Complainant was required to serve as a lead analyst
and direct the development, delivery, or evaluation of courses or instructional packages.

On October 8, 2015 (and twice amended), Complainant filed an EEO complaint alleging that the
Agency discriminated against her and subjected her to a hostile work environment on the bases of
sex (female) and in reprisal for 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 April 29, 2015, Complainant's supervisor, the Supervisory Instructional Systems
Specialist (SISS) came into Complainant’s office and yelled at her and her co-workers,
in a hostile and verbally aggressive tone, “quit wasting time and get back to work;

2. In a meeting on May 7, 2015, SISS was unprofessional, raised her voice in an
aggressive tone, and told Complainant and her co-workers, “you should not be wasting
time collaborating;”

3. On July 20, 2015, SSIS made Complainant leave her office door open and did not
require Complainant's male co-workers to leave their doors open;

4. On July 22, 2015, SISS denied Complainant the opportunity to apply for an alternate
work schedule (AWS), but allowed Complainant's male co-workers to have AWS;

5. On August 6, 2015, SISS issued Complainant an Employee Proficiency Plan (EPP);

6. On August 7, 2015, SISS yelled at Complainant, leaned into her personal space, and
touched her, making her feel threatened;

7. On August 13, 2015, SISS yelled at Complainant and told her and her co-workers that
she had written Complainant up for insubordination;

8. On August 20, 2015, SISS did not communicate directly with Complainant;

9. On August 25, 2015, SISS failed to provide guidance requested by Complainant;

10. On August 27, 2015, SISS withheld project information from Complainant;

11. On September 25, 2015, Complainant learned that SISS contacted Complainant’s
previous employer and tarnished her reputation;

12. On October 6, 2015, SISS violated the Rehabilitation Act of 1973 and the Americans
with Disabilities Act by disclosing Complainant's medical information;

13. On October 8, 2015, SISS denied Complainant’s request to work overtime, but gave
the opportunity to Complainant’s male co-workers;

14. On October 14 and 27, 2015, Complainant learned that SISS withheld work
assignments within Complainant's scope of responsibilities (i.e., review of Spanish
curriculum development assessments and performance objectives updates) and
assigned them to another supervisor;

15. On October 16, 2015, SISS disclosed information regarding mediation of
Complainant’s complaint to another supervisor not privy to the mediation;
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16. On October 20, 2015, SISS addressed Complainant in a public area regarding the end
of Complainant's EPP and disclosed this information to others;

17. On October 21, 2015, SISS placed restrictions on Complainant that were not placed on
Complainant’s male co-workers;

18. On December 17, 2015, Complainant’s second-level supervisor, the Assistant Chief
Patrol Agent (ACPA) issued her a letter proposing her removal from Federal Service;

19. On December 30, 2015, Complainant received a copy of her yearly evaluation,
indicating “unsuccessful performance;” and

20. On January11, 2016, SISS failed to respond to Complainant’s request for guidance
regarding new information that had been given to the Spanish curriculum development
team and regarding procedures for interaction with the team.

Claims (1) and (2)

Complainant stated that her coworkers, other ISSs, sought weekly meetings to gain a uniform
understanding of issues that the team was encountering. Complainant believed that SISS’s
reaction to these meetings was unprofessional, hostile, and aggressive. Complainant further
believed that SISS discriminated against her because the other ISSs were all male, and SISS used
the meeting to justify later placing Complainant on an EPP.

The Supervisory Border Patrol Agent (SBPA) added that Complainant had been calling these
meetings with other ISSs on an almost daily basis for several weeks. SBPA reported these
meetings to SISS and reported that the lack of progress by the team resulted from Complainant
failing to complete her assigned tasks and giving the team contradictory instructions. SBPA denied
that SISS’s tone of voice in telling Complainant and other ISSs to end their meetings was
harassment, and concurs with SISS that the meetings were wasting time and unproductive. Two
co-workers (ISS 1 and ISS 2) corroborated that the meetings were unproductive.

Claim (3)

Complainant averred that her office environment was extremely cold, and that she was allowed to
keep her office door closed and keep a small heater in her office. Complainant claimed that, on
July 20, 2015, SISS instructed her to keep her door open. SISS stated that Complainant was not
productive, so SISS asked that Complainant leave her door open, which would allow SISS to
monitor Complainant’s work. The Assistant Chief Patrol Agent (ACPA), Complainant’s second-
level supervisor, said that Complainant informed her of this incident and she told Complainant that
it was normal office protocol to leave the door open.

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Claim (4)

Complainant stated that on or around July 22, 2015, she had recently purchased a home, which
required her to have a longer commute. She told SISS that she was considering applying for AWS,
but SISS ordered her not to apply for AWS. Complainant claimed that the other ISSs, all male,
were given the opportunity to work alternative schedules. SISS stated that, at the time, SISS was
in the process of developing Complainant’s EPP which would have made it difficult to supervise
her. ACPA concurred believing that Complainant should work the same hours as her supervisor
during the “opportunity period” so that she could be properly evaluated.

Claim (5)

On August 6, 2015, Complainant was placed on an Employee Proficiency Plan (EPP) to address
her performance deficiencies. In particular, one of the rationales for the EPP was that Complainant
relied heavily on SBPA to complete her assignments. As part of the EPP, SSIS assigned ISS 1 as
Complainant’s mentor. Complainant claimed that the EPP was inappropriate because she had
received no written or verbal counseling from SISS prior to the EPP. Complainant further argued
that assigning ISS 1 as her mentor violated her right to privacy as it pertained to private personnel
actions.

SISS explained that she informed Complainant during Complainant’s mid-year review that she
was still not performing at the GS-13 level. SISS affirmed that both she and SBPA discussed
Complainant’s preparation of documents and how her preparation differed from the Agency’s
normal processes. SISS placed Complainant on the EPP after Complainant consistently prepared
the documents incorrectly and provided conflicting instructions to subject matter experts, which
resulted in no productivity. Complainant does not dispute that the mid-year discussion took place.

Claims (6) and (7)

On August 7, 2015, Complainant met with SISS and ISS 1 in Complainant’s office. According to
Complainant, SISS was agitated and spoke aggressively in a loud manner, which made
Complainant feel threatened. Complainant said that SISS asked Complainant if she was refusing
to complete a certain document. Complainant insisted she was not, but she did not understand the
difference between her document and the document SISS wanted her to use. Complainant believed
that when SISS leaned her body over Complainant’s to explain the differences, SISS did so
intentionally to try and intimidate Complainant.

SISS explained that she may have inadvertently brushed up against Complainant when she reached
for the mouse that controlled Complainant’s computer. SISS also agreed that she said that
Complainant was “always confused,” but explained that she was trying to show Complainant the
difference between reports Complainant had compiled and other reports.

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Following the incident, SISS met with Complainant and apologized if Complainant was offended.
Complainant accepted her apology, but also said that she did not like SISS being in her personal
space. There was another discussion concerning whether Complainant understood the differences
between certain documents. Toward the end of this discussion, SISS told Complainant that her
behavior was “indicative of insubordination.”

Claim (8)

Complainant claimed that during a conversation between her and ISS 1, ISS 1 said he was
instructed by SISS to explain the meaning of collaboration. Complainant asked ISS 1 why SISS
did not tell her directly, but ISS 1 did not have an answer for her. SISS stated that she asked ISS
1 to explain the meaning of collaboration to Complainant because ISS 1 was Complainant’s mentor
and SISS felt the explanation would go over better if it came from ISS 1.

ISS 1 explained that, because he was Complainant’s mentor, the chain of command meant that all
communication between Complainant and individuals above Complainant would flow between
ISS 1. He also believed he had a better working relationship with Complainant.

Claim (9)

Complainant alleged that, on August 25, 2015, she provided work product to SISS for review “in
compliance with her directive that [Complainant] submit all work product to her for review before
forwarding them on to the Subject Matter Experts.” According to Complainant, SISS refused to
review her work because she had not consulted with the SME prior to submitting her work to SISS.

SISS explained that Complainant failed to adhere to department protocol. ISS 1 also explained
that he told Complainant to meet with the lawyer assigned to the development of the law
curriculum. Instead, Complainant edited and revised the curriculum without consulting the lawyer
and sent the curriculum to SISS. SISS did not respond to Complainant because she wanted
Complainant to communicate with her mentor. By not doing so, Complainant wasted time and
forwarded revisions that were neither correct nor acceptable.

Claim (10)

Complainant believed that SISS withheld information from her when SISS did not tell
Complainant that certain computer systems were not compatible with each other. When
Complainant informed SISS of this incompatibility, according to Complainant, “she did not tell
me about it because she felt that I needed to find out for myself.” Complainant stated this
contributed to a hostile work environment and caused her to be unproductive.

Claim (11)
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Complainant claimed that she learned from a former co-worker that SISS sought information from
her prior employer “for the sole purpose of assassinating my character” and to try to substantiate
SISS’s claims that Complainant did not know how to do her job. SISS explained that she contacted
Complainant’s previous employer because she wanted to determine what duties Complainant
performed at her previous job. At the time SISS established contact, Complainant had been on the
EPP for about six weeks and, according to SISS, was not improving. SISS stated that she was
unable to determine fully from Complainant’s resume what she performed in her prior duties, and
that she only discussed what Complainant’s position was and the type of work she did while there.
ACPA stated that SISS told her that she contacted Complainant’s former employer to get
additional information that could assist Complainant in successfully completing her opportunity
period.

Claim (12)

The record contains an email from SISS to Complainant’s team and other supervisors. In that
email, SISS stated that Complainant was out sick and “had a bad reaction to some new
medication.” Complainant claimed that the email violated the Americans With
Disabilities/Rehabilitation Act. Complainant pointed to the phrase, “bad reaction to new
medication” as a disclosure of confidential medical information.

Claim (13)

Complainant alleged that SISS denied her request for compensatory time.2 SISS stated that
Complainant was not denied compensatory time; rather, Complainant did not receive
compensatory time because she was not at work on October 6 or 7, 2015. SISS made her decision
regarding compensatory time based on who was available at the time. Moreover, SISS explained
that Complainant had received compensatory time three times. ISS 1 added that only three of the
six ISSs were asked to work compensatory time because the assignments that required
compensatory time had previously been assigned to the three ISSs that had to stay late. The other
ISSs went home as usual.

Claim (14)

Complainant stated that, on October 14, 2015, SISS told Complainant, in an email, to “stand down
on the assessments because she requested that [SBPA] conduct the review.” Complainant alleged
that she was unable to carry out her duties because the reassignment caused a breakdown in
communication.

2 Although Complainant alleged that she was denied overtime, SISS explained that her employees
were not eligible for overtime pay, but were eligible for compensatory time. We recognize that
the two terms are not generally exchangeable, and will refer to compensatory time with respect to
claim (13).
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SISS explained that she made a decision to assign work to the SBPA because, at that time,
Complainant had not shown any significant improvement from her EPP, and SISS wanted to keep
the assignments moving forward. ACPA also said that she was aware that many of Complainant’s
assignments had to be completed by others because Complainant failed to timely complete her
assignments or was frequently absent.

Claim (15)

Complainant stated that during her final weekly performance meeting with SISS and SBPA, as
required by the EPP, SISS began to discuss things that had been disclosed during the EEO
mediation. SISS denied that she discussed Complainant’s mediation with another supervisor.
Rather, SISS told another supervisor that Complainant would have direct communication with
SISS. When Complainant showed her confusion, SISS told Complainant that she had requested
the direct communication during a “meeting.”

Claim (16)

Complainant claimed that, on October 20, 2015, SISS stood in her doorway along with ISS 1 and
said that she was made aware that Complainant asked ISS 1 about his mentorship at the end of her
“performance opportunity.” SISS told Complainant she had already informed Complainant during
her final weekly performance that ISS 1 was no longer her mentor and asked Complainant to
verbally acknowledge what she had said. Complainant sought to confirm the incident in an email
in which she said that the way SISS addressed Complainant and mentioned “performance
opportunity” was a violation of Complainant’s private information and was very unprofessional.
SISS explained that she had been meeting with ISS 1, and from his office, it was convenient to
step across the hall, stand at Complainant’s door and tell Complainant that the EPP period was
over. SISS avers that there was no one else in range.

Claim (17)

Complainant claimed that on October 21, 2015, SISS sent Complainant an email with restrictions
as “the way ahead after the EPP opportunity period.” There were seven lettered restrictions:

a. Complainant was to send all work product to SISS for review;
b. Complainant was to make all requests in writing to SISS;
c. Complainant was not to solicit information on work related issues from other ISSs;
d. Complainant was not to make any order or request related to work assignments without
first clearing it with SISS;
e. Complainant was to continue copying SISS on all correspondence; and
f. Complainant was not to discuss work issues with SISS without another GS-14 in
attendance.

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SISS said that she was within her right, as a supervisor, to direct Complainant on how to proceed
with her work and disagreed with Complainant’s characterization of her directions as
“restrictions.” Rather, Complainant was not performing as expected and needed direction.

Claim (18)

On December 17, 2015, Complainant was issued a letter proposing her removal. Complainant
disagreed that her performance was unacceptable during the EPP period and points to her response
opposing the removal. Within her lengthy response, Complainant stated that “there are some
serious personality conflicts, unusual job tensions, harassment, bad faith, malice and provocation
which should be considered.”

SISS maintained that Complainant’s performance was not acceptable and pointed to
Complainant’s inability to retain new information or adhere to Agency processes. SISS noted that
Complainant’s EPP plan ended on October 20, 2015 with little improvement. As a result, SISS
believed that Complainant’s removal was warranted. ACPA supported SISS’s position stating that
“[s]ufficient evidence was presented to me, and was vetted by [Labor and Employment Relations]
therefore I issued the proposal for removal.” ACPA added that Complainant was given multiple
opportunities to improve her performance and did not.3

Claim (19)

On December 30, 2015, Complainant received her yearly evaluation. Therein, SISS rated
Complainant as “unsuccessful” because she failed to perform her duties as an ISS. In addition,
SISS stated that Complainant failed to show improvement over the course of the year despite
SISS’s personal involvement in attempting to mentor Complainant, the assignment of another ISS
to mentor Complainant, and an EPP.

Claim (20)

On January 11, 2016, Complainant returned from a lengthy absence and sent an email to her team
stating that she was ready to receive documents for review. SISS responded to that email
reminding the team that, in an earlier email, SISS told the team to address all correspondence to
SISS, who would then ensure that the information was disseminated. Complainant stated that
SISS’s guidance varied from the protocol Complainant had in place, and asked SISS for the email
that showed SISS’s guidance. SISS did not respond. SISS affirmed that she had told Complainant
that SISS would be directly assigning Complainant work. Therefore, there was no need to provide
Complainant with further guidance on how to interact with the Spanish team.

3 Ultimately, Complainant was not removed and was instead reassigned to another branch.
Complainant did not challenge her reassignment in the instant complaint.
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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 Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

In the decision, the Agency determined that management had articulated legitimate,
nondiscriminatory reasons for its actions that Complainant failed to rebut as pretextual. Further,
the Agency found that Complainant failed to demonstrate that the conduct at issue was sufficiently
severe or pervasive to constitute a hostile work environment. As a result, the Agency found that
Complainant had not been subjected to discrimination, reprisal, or a hostile work environment as
alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant renews arguments made in her affidavit and in rebuttal. Additionally,
Complainant broadly attacks the adequacy of the investigation and consistently argues that the
Agency has articulated false reasons for its actions. In many places, Complainant contends that
Agency management violated collective bargaining agreement rules and the Privacy Act.
Complainant also argues that she was subjected to discrimination because SISS was not pleased
with all of the ISSs because she told everyone to stop wasting time during meetings but yet,
Complainant was the only ISS subjected to an EPP. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS

As a preliminary matter, and upon review of the entire record, the Commission is not persuaded
by Complainant’s argument that the investigation was incomplete or improper. The Commission
notes that Complainant requested an Agency final decision instead of a hearing before an EEOC
AJ, a process that would have afforded her the discovery tools enumerated in Section 1614.109(d)
to cure alleged defects in the record. Thus, despite the above referenced arguments, the
Commission determines that the investigation was properly and adequately conducted.

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”).

Disparate Treatment

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To prevail in a disparate treatment claim, 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 she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. 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 Prods., Inc., 530 U.S. 133, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

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

In the instant case, the Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. With regard to Complainant’s claims regarding the
meetings she convened with her coworkers, the Agency explained that SCPA notified
Complainant’s supervisor, SISS, that Complainant was often having these meetings in which she
frequently asked questions that had already been answered several times over, and as a result, the
meetings were not productive. Two of the three ISSs who were in these meetings corroborated
SCPA’s and SISS’s testimony. Similarly, SISS explained that Complainant’s poor performance,
as demonstrated by her inability to understand answers and directives given to her, resulted in
Complainant being placed on an EPP and subsequently being issued the notice of removal. With
respect to claim (15), SISS denied discussing any details of Complainant’s EEO mediation with
another supervisor; instead, he simply told another supervisor that Complainant would have direct
communication with SISS as she had requested during a “meeting.” Complainant has presented
no evidence indicating retaliatory intent with regard to SISS’s statement.

In short, the Agency explained that the actions it took in Claims (1) – (11), (13), (14), and (16) –
(20) were all a result of Complainant’s poor performance, inability to follow directions, including
an inability to recall prior directions. As the Agency articulated legitimate, nondiscriminatory
reasons for its actions, Complainant has the burden of demonstrating that these reasons are pretext
for discriminatory or retaliatory animus. We find that Complainant has not carried her burden.
Accordingly, the Commission finds that the record evidence supports that Complainant was not
subjected to discrimination or reprisal as alleged.

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Hostile Work Environment

We turn now to Complainant’s allegation she was subjected to a hostile work environment. To
establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily
protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on the protected class; (4) the
harassment had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement
Guidance on Harris). An agency is liable for unlawful harassment by a co-worker if it knew or
should have known of the alleged harassment, unless it can show that it took immediate and
appropriate corrective action. 29 C.F.R. § 1604.11(d).

In short, to prove her harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of a protected basis. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself.

In this case, we find that record evidence supports that Complainant was not subjected to a hostile
work environment. Where the Agency has articulated a legitimate reason for each of its actions,
these actions simply cannot form the basis of a discriminatory or retaliatory hostile work
environment. Even considering the totality of the circumstances, we find that the alleged conduct
at issue was not sufficiently severe or pervasive to rise to the level of an actionable hostile work
environment. Throughout the investigative file, it is evident that the relationship between
Complainant and SISS suffered from contentious interpersonal interactions. Personality conflicts,
standing alone, does not establish a discriminatory hostile work environment and Complainant
does not provide evidence to demonstrate that it was discriminatory. Accordingly, the
Commission finds that Complainant has not established that she was subjected to a discriminatory
or retaliatory hostile work environment.

Claim (12)

Finally, with regard to claim (12), Complainant alleged that SISS violated the Rehabilitation Act
when she disclosed Complainant’s medical information by telling her coworkers that Complainant
had a bad reaction to medication. The Rehabilitation Act provides that information obtained
regarding the medical condition or history of any employee shall be treated as a confidential
medical record and there are only limited exceptions to this regulation. 29 C.F.R. § 1630.14. By
its terms, this requirement applies to confidential medical information obtained from “any
employee,” and is not limited to individuals with disabilities. Hampton v. U.S. Postal Serv., EEOC
Appeal No. 01A00132 (Apr. 13, 2000).
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Although not all medically-related information falls within this provision, documentation or
information of an individual’s diagnosis or symptoms is medical information that must be treated
as confidential except in those circumstances described in 29 C.F.R. Part 1630. See Hampton,
supra; see also EEOC Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities (Mar. 25, 1997) at 17.

In this case, SISS’s email did not constitute a violation of the Rehabilitation Act. The email did
not identify specific symptoms or any underlying medical condition in a manner sufficient to
require confidential treatment. Accordingly, the Commission finds that the Agency did not
unlawfully disclose Complainant’s confidential medical information in violation of the
Rehabilitation Act.4

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
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

4 The Commission notes that, to the extent that Complainant raises arguments on appeal related to
the Privacy Act, we do not have jurisdiction over such claims.
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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. 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

December 7, 2018
Date