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EEOC reverses federal agency finding of no discrimination against federal employee. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the bases of disability (depression and anxiety and ADHD) and reprisal when he was not selected for a detail position. Following the initial investigation, the Agency issued a Final Agency Decision (FAD) dismissing Complainant’s claim of retaliation because Complainant did not engage in any prior protected activity.  Additionally, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged- specifically, the Agency found that Complainant did not establish that he is an individual with a disability because he did not produce any evidence proving that he is substantially limited in performing a major life activity, nor did he establish that he had a record of such a disability or that the Agency regarded him as having a disability.  The Agency also found that it had articulated a legitimate, nondiscriminatory reason for not selecting Complainant for the position, which Complainant did not establish was a pretext for discrimination. Complainant appealed to the Equal Employment Opportunity Commission (EEOC).

On appeal, the EEOC’s Office of Federal Operations (OFO) first noted that the dismissal of Complainant’s reprisal claim was improper because Complainant did, in fact, have prior protected activity that could give rise to a reprisal claim. The OFO further held that because the Agency personnel viewed the Complainant as a person with a disability based on his note from his psychiatrist, he was a qualified individual with a disability. Additionally, Complainant was able to establish direct discrimination when the Agency failed to hire him for a position because it believed the position would be too stressful for his disabilities, and the OFO held that the Agency had engaged in discrimination. Furthermore, the OFO held that the Agency did not maintain Complainant’s confidential medical information in a separate medical file. Instead, it placed the documentation, which identified Complainant’s diagnosis and described his symptoms, in his official personnel file- a per se violation of the Rehabilitation Act. However, the OFO held that the Complainant failed to establish his reprisal claim, as in his own admission he denied any discrimination due to EEO activity. The OFO reversed the Agency’s final decision finding no discrimination, and remanded the case back to determine proper remedies.

Complainant v. Department of Homeland Security, EEOC Appeal No. 0120112139 (November 20, 2015) https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120112139.txt