EEOC affirms agency finding of no discrimination or harassment. Complainant filed and Equal Employment Opportunity (EEO) complaint alleging discrimination and a hostile work environment based on disability (ADHD) and in reprisal for prior protected EEO activity. Specifically, he alleged discrimination and harassment when: 1. After a July 10, 2009 meeting with the Deputy for Programs and Readiness, he was subject to a series of acts meant to humiliate, degrade, isolate, and intimidate him in front of his coworkers; 2. On April 12, 2010, and other dates, management denied his request for a pay and position description upgrade; 3. On August 5, 2009, the Colonel 1 asked him about his disability in front of others; 4. Management officials refused to meet with him to hold an individualized review, discreetly discuss reasonable accommodations, and engage in a collaborative process concerning his requests for reasonable accommodations; 5. Management officials failed to contact him about his CAS comments regarding individualized reasonable accommodates as to his private office, and the BRAC reorganization; 6. On or about August 7, 2009, he was not selected for the position of Branch Chief of the newly formed Readiness Branch; 7. On or about August 7, 2009, management allegedly failed to reasonably accommodate him concerning specific equipment needs, and BRAC-related office construction accommodations; 8. Management failed to provide him with a required 2010 National Security Personnel System (NSPS) plan and initial review; 9. Management continuously changed his rater/supervisors without filing a “Change of Rater/Supervisors for National Security Personnel System Employees” form; 10. Management shunned him, and did not treat him as part of the GFR Branch; and on April 6, 2010, the LC2 argued that the GFR employees cannot and should not have to help him; 11. On April 8, 2010, and other dates, management required him to perform excessive workloads, another division’s work and man-hours without relief of compensation; 12. On April 19, 2010, the LC2 issued him a Letter of Counseling for “Disrespect towards his first line supervisor;” 13. On April 19, 2010, his request for 51 hours of overtime compensation was denied, after the COL1 informed him that he could submit for overtime; 14. On April 19, 2010, the LC2 issued him a Letter of Counseling for “Allegations of uncompensated overtime,” for allegedly informing leadership that he was working overtime without compensation; and informing him that prior approval and authorization is required to work overtime; 15. Management allegedly made a disclosure of information about his disability by including a note, “Special Needs Office,” on drawings for an office in the new building; 16. After moving to the new building in the summer of 2011, the office originally provided to him did not meet his needs; 17. His 2010 NSPS annual appraisal rating of record was not a “4” or higher; and 18. On or about November 3, 2011, a paralegal released pages from his EEO complaint to management officials.

Following the initial investigation, the Agency issued a Final Agency Decision (FAD) in which it dismissed claims 11 and 18 for failure to state a claim and being unrelated to the other claims, respectively. The Agency then found that claims 1, 2, 3, 5, 6, 9, 10, 11, 13, and 15 did not occur as alleged, citing facts contrary to those presented by Complainant. Regarding the reasonable accommodation claims, the Agency found that although Complainant was a qualified individual with a disability, the Agency did not view him as such because it had no knowledge of said disability. The Agency concluded that claim 7 did not occur as alleged, and that claims 4 and 16 came about because of Complainant’s failure to engage in the interactive process, not the Agency’s. Regarding the disparate treatment claims, the Agency did not assess whether Complainant had established a prima facie case, but concluded that even if he had, the Agency had articulated legitimate non-discriminatory reasons for its actions in regards to claims 12, 14, and 17. For the hostile work environment claims, the Agency found that claims 8, 12, 14, and 17 did not occur because of his protected bases, and even if they had they were not severe or pervasive enough to unreasonably interfere with his work performance or create a hostile work environment. Complainant appealed the FAD to the Equal Employment Opportunity Commission (EEOC).

On appeal the EEOC’s Office of Federal Operations (OFO) first noted that because Complainant did not contest the dismissal of the two claims, the dismissals were affirmed. Regarding the reasonable accommodation claims, the OFO noted that an individual is not entitled to reasonable accommodation when the disability, or need for accommodation is not obvious, and the person refuses to provide the reasonable documentation requested by the employer. The OFO held that the Complainant was unable to show that he was denied any accommodation and he failed to provide the reasonable documentation of his disability to the Agency as requested, and therefore there was no denial of a reasonable accommodation. The OFO further held that the record established that it was the Complainant that failed to engage in the interactive process, not the Agency, and therefore the Agency did not discriminate against him by failing to engage in the interactive process. In response to the disparate treatment claims the OFO held that Complainant’s bare assertions that the managers were not truthful discriminated against him based on his disability, and in reprisal for his protected EEO activity were insufficient to prove pretext or to establish that the Agency officials’ actions were discriminatory. The OFO affirmed the Agency’s FAD finding that Complainant had not shown that the Agency discriminated against, or subjected him to a hostile work environment based on disability, and in reprisal for protected EEO activity.

Ken E. v. Department of the Air Force, EEOC Appeal No. 0120140193 (August 19, 2016)

Kirk J. Angel represents federal employees in EEO investigations throughout the country. You can set a free 15 minute consultation with him today right on this website.