Tom S.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

0120180345 (E.E.O.C. Dec. 18, 2019)

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

Tom S.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120180345

Hearing No. 570-2014-00828X

Agency No. 13-0044-HQ-EM

DECISION

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

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Environmental
Protection Specialist within the Agency’s Office of Environmental Management (EM), in
Germantown, Maryland. In this position, Complainant provided advice and assistance to the
Director on a variety of new and merging regulatory requirements of national significance.

From April 2009 until February 2012, the Associate Deputy Assistant Secretary for Site
Restoration (S1) served as Complainant’s immediate supervisor, and the Deputy Assistant
Secretary (S2) served as Complainant’s second level supervisor. From February 2012 until
December 2012, the former Director of Environmental Compliance (Director) served as

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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Complainant’s immediate supervisor, and S1 served as Complainant’s second level supervisor. S1
resumed serving as Complainant’s immediate supervisor in January 2013, at which time S2
resumed serving as Complainant’s second level supervisor.

Complainant has been diagnosed with Bipolar Disorder, Anxiety, Diabetes, and Major Depression.
Because of his diabetes, Complainant experienced fluctuating blood sugar levels and was unable
to work intermittently.2 Complainant’s depression flared during seasonal changes, and when his
depression is symptomatic, he experienced fatigue, impaired cognition, impaired memory, and the
inability to work and tend to his personal needs.

In a counseling memorandum dated June 16, 2011, S1 reported that Complainant had not
consistently timely informed him or the timekeeper that he would not be reporting to work or
would be reporting late. S1 stated that in accordance with the collective bargaining agreement
(CBA), Complainant must notify S1 of any unscheduled leave within the first hour of his tour of
duty, or as soon as possible thereafter in unusual circumstances. S1 further stated that although
Complainant informed him that he had a health condition that prevented him from contacting S1
in a timely manner, he has not provided any medical documentation to support this claim despite
being asked to do so.

In a letter dated June 27, 2011, Complainant’s physician (Dr1) informed the Agency that
Complainant was under his care for treatment of diabetes. Dr1 further reported that Complainant
experience wide fluctuations in glucose levels and insulin was being used to control the condition,
but there would be days when he was unable to work because of the condition. In a letter dated
September 13, 2011, another physician (Dr2) reported that Complainant was under his care for
recurrent, severe Major Depressive Disorder. Dr2 further reported that after being admitted to the
hospital on September 8, 2011, Complainant informed him that he had not been to work since
September 2, 2011 because he had been so depressed. Dr2 stated that he anticipated Complainant
staying in the hospital for a few more days before transferring to a Psychiatric Partial
Hospitalization Program and Intensive Outpatient Program. Dr2 also stated that Complainant
would benefit from “transferred leave.”

On November 3, 2011, S1 issued Complainant an overall rating of 47.5 out of 100 for FY 2011,
which is a “Needs Improvement” rating. Complainant received a rating of zero out of one point
in the elements of Responsibility/Accountability; Customer Service; and DOE Order 435.1
Update. He received 0.5 points in the elements of Communication; Telework; Innovation/Quality
Improvement; Support to 3116 Waste Determination; and Low-Level Disposal Facility Review
Group.

2 According to Complainant, his diabetes has been characterized as “brittle” because his blood
glucose levels can change rapidly and significantly because of small changes in carbohydrate
consumption, insulin intake, or other factors such as stress, anxiety, exercise, sleep, or illness.
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In a note dated December 9, 2011, a physician reported that Complainant was “resolving major
Depression w/good prognosis,” and would return to work on December 19, 2011. Additionally,
on a Federal Occupation Health (FOH) form dated January 11, 2012, a health care provider
reported that Complainant was receiving weekly, ongoing treatment and was absent from work
because he was unable to perform any work assignments or duties. On a Department of Labor
(DOL) form dated November 8, 2012, a health care provider reported that Complainant had a
recurrent condition for which he needed to receive treatment two to three times every six weeks.
The health care provider further reported that episodic flareups of Complainant’s condition would
prevent Complainant from performing the duties of his job two times per nine weeks for 12 to 24
hours, or two days per episode.

On or about December 7, 2011, Complainant submitted an Authorization for Disclosure of
Information form to S1. On that form, Complainant checked the box “Sick Leave, Medical Leave
or Reasonable Accommodation.” In a letter to Complainant dated January 12, 2012, S1 stated that
he had not received medically-acceptable documentation from Complainant to support his absence
from work since his release from the hospital on December 22, 2011, although Complainant had
indicated that he was working on the paperwork on December 25, 2011. S1 further stated that
because he had not received any medical documentation beyond a doctor’s note stating he had
been hospitalized, he was unable to code his absence under the Family and Medical Leave Act
(FMLA).

S1 also stated that Complainant had not received any communication from Complainant despite
his continued absence, although Complainant had been counseled in writing on June 15, 2011
about the proper procedures for taking unscheduled leave. S1 stated that Complainant was
instructed to notify him within the first hour of his tour of duty of his intention of taking
unscheduled leave, and that his notification on January 9, 2012 at 11:11 a.m. was not compliant
with this direction.3 S1 further stated that Complainant would be charged Absent without Leave
(AWOL) beginning January 1, 2012, and if his absences are because of a medical reason, he must
provide medical documentation to support his inability to work.

In February 2012, Complainant returned to work and advised S1 that he was functioning at “100
percent mental capacity” but would take additional time to fully recover. In a letter dated March
1, 2012, S1 informed Complainant that his performance was unacceptable, and he would be placed
on a performance improvement plan (PIP) to demonstrate acceptable performance. S1 further
stated that S1 had informed Complainant of his deficiencies in the critical element DOE Order
435.1 Update during his FY 2011 progress review on June 8, 2011. S1 also stated that the PIP was
effective March 1, 2012 and would continue for 90 calendar days. On May 30, 2012, the Director
found that Complainant had improved his performance and updated his performance in the DOE
Order 435.1 element to “meets expectations.”

3 Complainant’s tour of duty began at 8:30 a.m.
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In a letter dated July 30, 2012, the Director reprimanded Complainant for his unscheduled leave
usage and failure to follow leave procedures. In the letter of reprimand, the Director reported that
from April 2, 2012, until July 27, 2012, Complainant had been AWOL 25 times, and took
unscheduled leave 40 times. The Director further reported that Complainant repeatedly failed to
follow instructions to notify management within the first hour of his tour of duty that he would not
be reporting to work or would be late.

On November 7, 2012, the Director rated Complainant “fails to meet expectations” overall on his
FY 2012 performance evaluation. On January 9, 2013, Complainant was issued a notice of Leave
Restriction. In the notice, S1 noted that he had issued Complainant a counseling memorandum
that required him to contact his supervisor each time he took unscheduled leave, and a reprimand
on July 30, 2012 because of Complainant’s abuse of unscheduled leave and failure to follow leave
request procedures. The notice further stated that Complainant must request leave using an Office
Personnel Management (OPM) form at least two days in advance, and requests for sudden illnesses
or emergencies must be made directly to S1 within one hour of his scheduled reporting time.
Additionally, the notice stated that for any amount of leave taken for sudden illness, Complainant
must provide a certificate from a physician indicating he was unable to report to work on the day
at issue.

In a letter dated January 31, 2013, another physician (Dr3) reported that Complainant’s two
chronic episodic disorders of Brittle Diabetes Mellitus and Chronic Episodic Recurrent Major
Depression exacerbated one another, making him unable to work. In a letter to Complainant dated
March 7, 2013, S1 notified Complainant he was proposing to suspend him for seven days based
on his failure to follow leave request procedures, abuse of unscheduled leave, unauthorized
absences without official leave, and inappropriate workplace communication. The letter stated
that Complainant had been counseled on several occasions about his excessive use of unscheduled
leave, but his excessive use of unscheduled leave persisted. The letter further stated that medical
documentation from his physician indicated that his medical condition would cause him to only
have two episodes for which he needed to request leave on short notice in a nine-week period,
which does not account for his “many absences and late starts.”

Finally, the letter reported that on February 21, 2013, Complainant replied to S1’s inquiry about
an assignment by saying it was “pretty shitty” of S1 to try to schedule a meeting to discuss his time
and attendance and by accusing S1 of a “personal vendetta” to “pave a road for firing
[Complainant] based on [his] lack of compliance with a bullshit leave restriction letter which
would not have exist [sic] if reasonable accommodation had been provided for [his] disability
when [he] asked for it.” The letter concluded that Complainant’s conduct was “unprofessional,
rude, and disrespectful” and undermined S1’s confidence in his ability and suitability to serve
effectively in the work and mission of the office. On June 28, 2013, Complainant was notified of
S1’s decision to suspend him for five days beginning on August 5, 2013.

In a letter dated May 1, 2013, S1 informed Complainant that his level of performance was
unacceptable, and therefore, he would be placed on a PIP. The letter stated that the PIP would
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become effective on May 1, 2013 and continue for 90 days. A copy of Complainant’s performance
elements was attached to the letter.

In an email to the Wellness Program Manager (WPM) dated May 31, 2013, Complainant reported
that there had not been any discussion with management regarding accommodations, and he
wanted to inform the WPM that he was still interested in discussing “mutually agreeable
accommodations.” He stated that he continued to be penalized for situations attributable to the
illnesses for which he sought accommodations.

On August 30, 2013, S1 notified Complainant of the Agency’s proposal to remove him for
unacceptable performance. In the notice, S1 stated that Complainant’s unsatisfactory performance
in two critical performance elements, the DOE Order 435.1 update and the Low-Level Waste
Disposal Facility Federal Review Group. S1 further stated that Complainant failed to undertake
several actions he was instructed to undertake under the performance improvement plan (PIP),
including presiding over meetings and ensuring items from these meetings are completed within
deadlines, and producing minutes within two weeks of practice meetings.

Formal Complaint

On April 12, 2013, Complainant filed an EEO complaint in which he alleged that the Agency
discriminated against him on the basis of disability and in reprisal for prior protected EEO activity
when:

1. On December 7, 2011, January 8, 2012, April 16, 2012, May 11, 2012, and November
1, 2012, Complainant submitted documentation regarding his medical conditions to his
supervisors and requested reasonable accommodations, but received no response;

2. On June 16, 2011, Complainant was issued a counseling memorandum for failure to
notify his supervisor (S1) regarding unscheduled leave;

3. On November 3, 2011, Complainant received an overall performance rating of “2”4 on
his fiscal year (FY) 2011 performance appraisal;

4. On January 14, 2012, Complainant received an email from S1 threatening disciplinary
action and asking for medical documentation;

5. On March 1, 2012, Complainant was placed on a PIP;

6. On July 30, 2012, Complainant received a Letter of Reprimand for unscheduled leave
usage and failure to follow leave procedures;

4 The record reveals that “2” corresponds to a rating of “Needs Improvement.”

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7. On November 7, 2012, Complainant received an overall performance rating of “1”5 on
his FY 2012 performance appraisal;

8. On November 9, 2012, Complainant received a Memorandum of Leave Restriction;

9. On March 7, 2013, Complainant received a Notice of Proposed Suspension for seven
days for excessive use of unscheduled leave;

10. Complainant’s Notice of Proposed Suspension for seven days was upheld by
management, but the penalty was reduced and Complainant received a five-day
suspension, which he began serving on July 2, 2013; and

11. Through August 20, 2013, leading up to Complainant’s proposed removal and
placement on administrative leave, he had not received any reasonable
accommodation.6

Additionally, Complainant alleged that he was subjected to reprisal because of his previous EEO
activity when he received a Notice Proposed Removal on August 20, 2013.

Complainant’s Investigative Statement

In an investigative affidavit, Complainant stated that he worked a flexible alternative work
schedule prior to requesting accommodations, and this schedule never changed during the entire
period he worked for S1. Complainant further stated that when he raised questions about the need
for accommodations with S1, S1 repeatedly told him that it was not his responsibility, and
Complainant should go to the Employee Assistance Program (EAP) if he needed help or assistance.
Complainant also stated that on several occasions, he filled out reasonable accommodation forms
that allowed the Agency to contact his health care providers. Complainant stated that if he would
have been provided with a flexible work schedule of being allowed to work eight hours a day of
work regardless of the start and finish time, it would have been a reasonable accommodation for
his condition, but S1 did not offer Complainant this option.

Complainant further stated that on July 25, 2013, he attended a meeting with S1, two Labor and
Employee Relations officials, the union president, and the Wellness Program Manager (WPM) to
explore possible approaches to providing him with reasonable accommodations. He further stated
that on July 31, 2013, S1 proposed to extend the grace period for notifying management of his
absence by one hour, or until 9:30 a.m. Complainant stated that S1’s proposal undermined

5 The record reveals that “1” corresponds to a rating of “Fails to Meet Expectation.”

6 Complainant’s claim that he was constructively discharged/removed on May 2, 2014 is raised in
a separate complaint, mixed case Agency No. 16-0043-HQ-EM.
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additional meetings on accommodations that were expected to occur and indicated S1’s lack of
understanding of his condition by implying he just had a tough time waking up in the morning.

Complainant further stated that the Agency took various disciplinary actions against him, including
suspending, reprimanding, and proposing removing him, although the Agency’s failure to provide
him with reasonable accommodations for his diabetes and mental conditions affected his ability to
meet attendance requirements. Additionally, Complainant stated that S1 “downgraded” his
performance ratings based on an evaluation that viewed his performance as willful actions of
defiance or disobedience instead of viewing his attendance issues as caused by his diabetes.
Additionally, Complainant stated that he believed the issuance of a Memorandum of Leave
Restriction was part of a pattern of harassment in which his requests for accommodation were
continuously ignored and actions were taken that aggravated his health conditions.

Withdrawal and Dismissal of Hearing Request

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 Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently
withdrew his request on March 22, 2016. On March 28, 2016, the AJ dismissed Complainant’s
hearing request and remanded the matter to the Agency for issuance of a final decision pursuant
to 29 C.F.R. § 1614.110(b). On September 29, 2017, the Agency issued a final decision.

Final Agency Decision

In its decision, the Agency first found that Complainant was an individual with a disability
regarding his diabetes and depression, but not with respect to his anxiety and his Bipolar Disorder
in remission because there was insufficient evidence regarding his limitations associated with
anxiety and remissive Bipolar Disorder. The decision also found that Complainant was not
qualified. Additionally, the decision determined that the Agency failed to engage in the interactive
process to assess Complainant’s reasonable accommodation request, but Complainant did not
show that an accommodation existed that could have allowed him to correct his attendance
problems and perform the essential functions of his position. Therefore, the decision concluded
that Complainant had not shown he was denied a reasonable accommodation for his disability.
Further, the Agency concluded that Complainant did not prove he was subjected to unlawful
disability harassment because he did not show he was qualified. Finally, the Agency found that
Complainant was not subjected to reprisal because there was no evidence the Agency’s actions
were motivated by Complainant’s requests for reasonable accommodations or filing of an EEO
complaint.

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).
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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”).

EEOC Regulations provide that an agency shall issue the final decision within 60 days of receiving
notification that a complainant has requested an immediate decision from the agency. 29 C.F.R. §
1614.110(b). The record reveals that Complainant withdrew his request for a hearing on March
22, 2016. Accordingly, on March 23, 2016, the AJ dismissed Complainant’s hearing request and
ordered the Agency to issue a final decision within 60 days of Complainant’s notice of withdrawal
of his hearing request. The Agency did not issue its final decision until September 29, 2017,
approximately 1.5 years after Complainant’s withdraw his hearing request. The Agency explained
that during the relevant period, it initially relied upon a contractor to draft the final decision for
this case. The Agency maintains that when the Agency reviewed the draft final decision submitted
by the contractor, it determined that the draft was “legally and factually insufficient.” The Agency
further maintains that it then tasked staff with conducting an extensive review of “the voluminous
record” in this case and drafting a new final decision. Additionally, the Agency maintains that
because of problems with the quality of work produced by the contractor, the Agency completely
“de-scoped” the contract in early autumn 2016, which created a large additional workload for the
Agency and delayed issuance of a final decision in this case. The Agency also maintains that in
recognition of the importance of EEO deadlines, it has taken steps to ensure the issues that led to
the delay are corrected, including by awarding three new contracts for EEO complaint processing
services between November 2016 and September 2017.

Upon review, we find that Complainant has failed to show that he was prejudiced by the Agency’s
delay. Moreover, the Agency has provided a detailed, credible explanation for its delay and has
indicated it has taken appropriate steps to ensure this issue will not arise in the future. Under the
circumstances of this specific case, we will address the findings in the Agency’s decision.

Reasonable Accommodation and Hostile Work Environment

Complainant alleges that he was denied a reasonable accommodation for his disability, as well as
subjected to harassment because of his disability. To establish that Complainant was denied a
reasonable accommodation, Complainant must show that: (1) he is an individual with a disability,
as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to
29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice 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
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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).

It is well-settled that harassment based on an individual's disability and prior EEO activity is
actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a
claim of disability harassment, a complainant must show that: (1) he is a qualified individual with
a disability covered under the Rehabilitation Act and/or engaged in prior EEO activity; (2) he was
subjected to unwelcome conduct; (3) the harassment complained of was based on his disability
and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile, or offensive work
environment; and (5) there is a basis for imputing liability to the employer. See Flowers v.
Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors
Corp., 247 F.3d 169 (4th Cir. 2001).

In this case, it is uncontested that Complainant is an individual with a disability with respect to his
diabetes and depression. Regarding whether Complainant is qualified, we note that attendance is
not an essential function of a job as defined by the Rehabilitation Act because it is not one of the
fundamental job duties of the employment position. See 29 C.F.R. § 1630.2(n); see also
Enforcement Guidance on Reasonable Accommodation, EEOC Order No. 915.002, q. 22, n. 65.
Essential functions “are the duties of a job,” that is, “the outcomes that must be achieved by
someone in that position.” Petitioner v. Dep't of Homeland Sec., EEOC Petition No. 0320110053
(July 10, 2014); Ta v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013); Finnegan
v. Dep't of the Air Force, EEOC Request No. 05980065 (Sept. 26, 2001). In determining whether
an individual is qualified for a job, the Commission asks whether that person can perform the
essential functions of the job when at work. Gilberto S. v. Homeland Security, EEOC Petition No.
0320110053 (Jul. 10, 2014).

Here, the record reveals that during the relevant period, Complainant received an overall
performance rating of “Needs Improvement” in FY 2011 and “Fails to Meet Expectations” in FY
2012, which are both beneath the satisfactory rating of “Meets Expectations.” The record further
reveals that Complainant received zero ratings in FY 2011 in the heavily weighted critical element
of DOE Order 435.1 Update, as well in the elements of Responsibility/Accountability and
Customer Service. Although Complainant received a satisfactory rating upon the completion of a
PIP in May 2012, Complainant thereafter continued to receive unsatisfactory performance ratings
in two critical performance elements, the DOE Order 435.1 update and the Low-Level Waste
Disposal Facility Federal Review Group. Additionally, management noted that Complainant
failed to undertake several actions he was instructed to undertake under a second PIP. Although
Complainant contends that he should have received higher ratings in on some of his critical
elements, we are not persuaded that the evaluations were incorrect or unreasonable. Therefore,
we find that Complainant is not qualified.

Assuming arguendo that Complainant is a qualified individual with a disability, we note that
Complainant maintains that the Agency should reasonably accommodated him by essentially
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excusing his frequent unscheduled absences and tardiness. We note that this is not a case where
Complainant requested to have his tour of duty adjusted to a specific starting time, nor is it a case
wherein Complainant proposed to designate someone to notify the Agency when he was unable to
report to work or report on time. Thus, to the extent that Complainant requested to have the open-
ended ability to report to work (or call in absent) only when he felt able to do so, we determine
that such an accommodation is not reasonable on its face. Complainant v. U.S. Postal Serv., EEO
Appeal No. 0120123390 (Feb. 20, 2015). It is simply not plausible or feasible for an employer to
excuse chronic erratic absenteeism and tardiness by an employee who cannot provide timely notice
sufficient to enable the employer to ensure adequate staffing. See Wiley v. U.S. Postal Serv.,
EEOC Appeal No. 0720020105 (Sept. 15, 2003), request to reconsider denied, EEOC Request No.
0520040147 (Dec. 11, 2003).

On appeal, Complainant contends that he also sought telework as a reasonable accommodation.
However, there is scant record documentation regarding Complainant’s request for telework as a
reasonable accommodation. The record contains a July 12, 2012 letter from WPM in which she
concluded that Complainant could not telework because he was on a PIP, and an undated memo
that said that Complainant was offered the opportunity to telework until his performance fell below
the “meets expectations” level. Additionally, in an August 9, 2013 letter in which an Occupational
Medicine (OM) physician reported that Complainant requested permanent fulltime telework but
attempts to consult with his physician about this request were unsuccessful. The OM physician
further stated that based on previous discussions with Complainant’s physician, Complainant was
“unable to perform the essential functions of his professional needs” when his depression flared
and was unable to work in any setting during the depressive episodes. Thus, the physician
concluded that he was unable to medically justify telework or any other accommodation for
Complainant.

As such, we note that there is no documentation demonstrating that Complainant had a medical
need for telework in this case, or that such an accommodation would have enabled Complainant
to perform his work duties. In fact, medical documentation in this case reflects that Complainant
was unable to work at all during “flareups” of his depression and other medical conditions. While
requesting telework may provide employees with a reasonable accommodation for various medical
conditions, a complainant must specifically link his request to telework with his medical need. In
this case, Complainant failed to do so.

Finally, we concur with the Agency’s finding that management and other officials failed to
properly engage in the interactive process with Complainant regarding his request for a reasonable
accommodation. However, the Commission has held that an agency cannot be held liable solely
for a failure to engage in the interactive process, and liability for a failure to engage occurs only
when the failure to engage in the interactive process results in an agency's failure to provide
reasonable accommodation. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept.
13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). In this case, we find
that Complainant has not shown that the Agency’s failure to engage in the interactive process
deprived him of a reasonable accommodation.
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Because Complainant has not shown he is qualified, he likewise cannot prevail on his claim that
he was subjected to a hostile work environment because of his disability. Further, we find that
the Agency provided legitimate, nondiscriminatory reasons for its actions that Complainant did
not show were pretext for unlawful discrimination. Therefore, we find that the Agency’s actions
did not constitute harassment based on disability.

Reprisal: Proposed Removal

Complainant alleges that the Agency proposed to remove him because of his EEO activity. To
prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must
satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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 Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In order to establish a prima facie case of discrimination for an allegation of reprisal, Complainant
must show: 1) that he engaged in protected activity, (e.g., participation in a EEO proceeding as a
witness); 2) that the alleged discriminating official was aware of the protected activity; 3) that he
was disadvantaged by an action of the Agency contemporaneously with or subsequent to such
participation; and 4) that there is a causal connection, or nexus, between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for Experimental Biology,
Inc., 425 F. Supp. 318, 324 (D. Mass), aff ‘d,545 F.2d 222 (151 Cir. 1976).

In this case, we assume arguendo that Complainant established a prima facie case of reprisal
regarding his proposed removal. Nevertheless, we find that the Agency provided legitimate,
nondiscriminatory reasons for its actions, namely, that for over two years, Complainant had
exhibited unsatisfactory performance in two critical performance elements, the DOE Order 435.1
update and the Low-Level Waste Disposal Facility Federal Review Group. Additionally, the
Agency stated that Complainant failed to undertake several actions he was instructed to undertake
under a second PIP, including presiding over meetings and ensuring items from these meetings are
completed within deadlines, and producing minutes within two weeks of practice meetings.

We find that Complainant has failed to show that the Agency’s non-discriminatory explanations
are pretext for reprisal. Therefore, we find that Complainant did prove he was subjected to reprisal
because of his EEO activity.
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CONCLUSION

We AFFIRM the Agency’s final decision finding no discrimination.

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
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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 18, 2019
Date