GARY L. MCKENZIE, COMPLAINANT,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, (FEDERAL BUREAU OF PRISONS), AGENCY.

Appeal No. 
0120100034
Agency No. P-2007-0624

On September 24, 2009, Complainant filed an appeal from the Agency's August 28, 2009, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision.

BACKGROUND

During the relevant time, Complainant, a disabled Veteran with back and neck injuries, worked as a WS-4 Materials Handler Supervisor at the Federal Correctional Institution in Cumberland, Maryland. His duties included supervising inmates in the prison warehouse while they performed various jobs, supervising the prison laundry, and working in the commissary selling products to inmates. These various responsibilities were performed on a rotational basis.

In approximately 2001, Complainant suffered an on-the-job injury which resulted in knee surgery. Years later,1 Complainant requested that he no longer work in the commissary as an accommodation for his knees.

Instead, Complainant was removed from all of his Materials Handler Supervisor duties and temporarily reassigned to monitor inmate phone calls, thereby allowing him to avoid prolonged standing. Additionally, the Agency removed Complainant's collateral duty Firearms Instructor responsibilities.

Believing that the denial of his requested accommodation, reassignment to telephone monitoring, and removal of Firearms Instructor duties were discriminatory, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, on October 29, 2007, Complainant filed a formal complaint based on disability and reprisal. The Agency framed the claims as follows:
(1) On September 10, 2007, Complainant's request for a reasonable accommodation was denied;

(2) On September 24, 2007, he was reassigned from the warehouse to telephone monitoring;

(3) Complainant was removed as a firearms instructor;

(4) Complainant's medical information was shared with staff other than the Warden; and

(5) Complainant's quarterly performance evaluation was lowered from "outstanding" to "exceeds."

At the conclusion of 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 EEOC Administrative Judge (AJ). In accordance with Complainant's request, 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.

First, the Agency maintained that Complainant was provided an effective reasonable accommodation. Assuming that Complainant is a qualified individual with a disability, the Agency explained that upon receiving Complainant's request it sought medical documentation. While Complainant contends that the Agency failed to act for a year and then denied his request on September 10, 2007, the Agency stated that Complainant did not submit documentation until August 1, 2007. Moreover, during that period, his hours in the commissary were reduced. Upon receiving the medical documents, stated the Agency, Complainant was removed from his Materials Handler Supervisor duties and temporarily reassigned to monitor phone calls. The Agency noted that Complainant himself admitted that this assignment alleviated his medical condition. Therefore, according to the Agency, Complainant was not denied an accommodation (claim (1)), as the reassignment to telephone monitoring (claim (2)) was an effective accommodation.

With respect to the Firearms Instructor duties (claim(3)), the Agency concluded that there is "no evidence that removing [C]omplainant from serving as firearms instructor was anything more than a reasonably prudent action, particularly given the lack of medical information about [C]omplainant's impairment."The only statement cited in the Agency's decision, with respect to claim (3), was the management official's comment that he suggested removal of the collateral duty because Complainant was "complaining so much about his back and his legs and everything else."According to the official, he suggested the removal of Complainant's instructor duties out of "a safety concern for him", as he did not want Complainant to be injured further.

As to the alleged improper dissemination of Complainant's medical records (claim (4)), the Agency reasoned that the documents were only accessed by those individuals involved with Complainant's reasonable accommodation request. While the Complainant believed that only the Warden should have reviewed the documents, the Agency found it necessary for the Associate Warden, the Employee Services Manager, Safety Manager, and Complainant's supervisor to also have access. Further, the Agency found no evidence that those involved with processing and implementing Complainant's accommodation request improperly shared the records.

Lastly, while Complainant alleged that his reduced quarterly performance rating was retaliatory, the Agency found the claim to be unsupported by the record. As an initial matter, the Agency noted that Complainant did not suffer any tangible harm, as an "exceeds" rating is still "a very good rating" and did not cause a loss of pay or other benefit. Next, the Agency stated that there is "no evidence that management's actions would have dissuaded a reasonable employee from engaged in protected EEO activity" and it did not prevent Complainant from doing so. According to the Agency, there is no evidence that the "exceeds" rating was motivated by Complainant's prior EEO activity.

Complainant filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant disputes various points in the Agency's decision. For example, he contends that he was sent for an exam with an Agency doctor regarding his back and neck, but his accommodation request concerned his knees. The Agency's assertion that his medical documents, showing that he was a disabled veteran, were outdated is also false because he "hasn't healed overnight." Complainant argues that the Agency failed to engage in the interactive process. He reiterates that his request for an accommodation was not acted upon until a year later, when he began the EEO complaint process. Regarding his claims of reprisal, Complainant reiterates his belief that the removal of his Firearms Instructor position was motivated by his EEO activity. If it was done as an accommodation, Complainant asks why it was not done when he first requested to be relieved from commissary duty. If the duties were taken to prevent Complainant from harming himself, Complainant wonders why management did not ask the Lead Firearms Instructor if there was a danger of such harm.

ANALYSIS AND FINDINGS

Standard of Review

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. (November 9, 1999) (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").

Disability

Reasonable Accommodation

The Commission notes that the Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See29 C.F.R. § 1630. In order 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 EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 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 with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(c) and (p).

For the purposes of analysis only, we shall assume that Complainant is a qualified individual with a disability and is therefore entitled to reasonable accommodation. The Commission finds, however, that Complainant has not established that the Agency failed to reasonably accommodate him.

Complainant requested that he not be required to work in the commissary as a reasonable accommodation. The Agency states that it participated in the interactive process by seeking medical documentation from him. While the Agency may have been aware of Complainant's disabled Veteran status, and associated back and neck injuries, the instant request concerned his knees. Moreover, Complainant had been performing the commissary duties for years following his knee surgery. Therefore, we find that it was appropriate for the Agency to seek relevant documentation. While Complainant argues that the Agency delayed processing his request, in violation of the Rehabilitation Act, his assertion is not supported by the record. The Agency contends that Complainant himself caused the delay by waiting to provide the requested medical documents.

As for the alleged denial of an accommodation, the Commission finds that Complainant was accommodated. We note that the Rehabilitation Act does not require than an agency offer an individual the accommodation of his choice, but simply an effective accommodation. Here, although Complainant sought to be permanently excused from working in the commissary,2 he was temporarily transferred to telephone monitoring. However, Complainant's own testimony reflects that the accommodation has been effective. He attested that he is no longer standing all the time, and is able to get up and walk when he needs to.3 Therefore, we do not find Complainant was discriminated against in claims (1) and (2).

Medical Disclosure

Complainant contends that the Warden improperly disclosed his medical information to other staff members. The Commission's regulations implementing the Rehabilitation Act provide for the confidentiality of medical records. Specifically, 29 C.F.R, § 1630.14(c)(1) provides, in pertinent part, that: "Information obtained . . . regarding the medical condition or history of any employee shall ... be treated as a confidential medical record, except that: (i) [s]upervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations."By its terms, this requirement applies to confidential medical information obtained from "any employee," and is not limited to individuals with disabilities. See Hampton v. United States Postal Service, EEOC Appeal No. 01A00132 (April 13, 2000).see also EEOC Enforcement Guidance on the Americans With Disabilities Act and Psychiatric Disabilities ("Enforcement Guidance - ADA"), No. 915.002 (March 25, 1997) at question 15; EEOC Enforcement Guidance: Disability Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act ("Enforcement Guidance - Disability Related Inquiries"), No. 915.002 (July 27, 2000) at General Principles; ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations ("Enforcement Guidance - Pre-employment"), No. 915.002 (October 10, 1995).

Since the Warden was the only one who could make a decision about granting an accommodation, Complainant reasoned that she should have been the only individual to see his medical information. According to Complainant, his medical records were shared with the Associate Warden, the Employee Services Manager, the Employee Services Manager, and his supervisor.

The Commission finds that medical information was only shared with those involved with processing and implementing Complainant's request for a reasonable accommodation. The Warden attested that the Associate Warden participates in the decision-making process. The Employee Services Manager works to maintain employee records, and would have had access to the records for that reason. Complainant's direct supervisor (the Trust Fund Supervisor), was informed in order to implement the accommodation.4 Consequently, we do not find that Complainant has established that his medical information was improperly shared as alleged in claim (4).

Reprisal

Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

In claim (3), Complainant alleged that he was discriminatorily removed from his Firearms Instructor position. The position was collateral duty, and comprised approximately one week a year of Complainant's time. According to Complainant, "there's nothing I couldn't do out at the range."He explained that instruction takes only fifteen minutes, and he can sit, walk and move as needed. Complainant believes that his supervisor removed him from the position in retaliation for his EEO activity. The Commission agrees.

When asked about the decision to remove the Firearms Instructor responsibilities, Complainant's supervisor attested "Yeah, I was involved in that because due to the fact that he was complaining so much about his back and his legs and everything else. . . .I was thinking of it more as a safety concern for him. You know, I mean, if he can't bend or lift or, you know do anything out in the warehouse5 or the commissary, it's the same thing out on the range."The supervisor reasoned that the physical activity on the range was not any different than his other duties, "same thing as being on his feet for many, many hours. You know, that as I was aware of. I mean, if he was complaining about his back, his legs, and stuff like that, that has a wear and tear too, from what I understand," Yet, when the investigator asked whether the Firearms Instructor position could be performed from a seated or resting position, the supervisor replied "I really don't know about that because I'm not out on the range all day long."

The supervisor's own testimony reflects that Complainant's instructor duties were removed because he was complaining. While the supervisor professed that he was motivated by concern of further harm to Complainant's impairments, he himself admitted that he did not know the physical requirements of the role. Consequently, we find that the supervisor was motivated by discriminatory animus towards Complainant's efforts to obtain a reasonable accommodation.

Similarly, the Commission finds that Complainant's lowered evaluation was retaliatory. First, we note the blaring absence in the Agency's analysis of a legitimate reason for the reduction from "outstanding" to "exceeds." Instead, the Agency attempts to persuade the Commission that Complainant was not harmed by the evaluation because an "exceeds" rating "by the way, is a very good rating" and did not result in a loss of pay. The lower quarterly evaluation was in writing, retained in his files, and considered in determining the yearly evaluation. Complainant asserts that it was motivated by retaliation. See Little v. Social Security Administration, EEOC Appeal No. 0120100488 (April 15, 2011) (negative feedback during year-end performance discussion found to state a claim because the review was placed in personnel folder and used for lowering end-of-year appraisal). Therefore, we find that event in claim (5) clearly rendered him an "aggrieved" employee.

As acknowledged by the Agency, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual. No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. The Commission finds that the lowered evaluation constitutes an adverse treatment that may be reasonably likely to deter Complainant or others from engaged in protected activity. See Little v. Social Security Administration, EEOC Appeal No. 0120100488 (April 15, 2011) (negative comments were found likely to deter complainant or a reasonable employee from engaging in EEO activity).

In his affidavit, Complainant's supervisor explained that this was the first year that he was responsible for Complainant's performance evaluation.6 While he thought Complainant did good work, he did not believe Complainant was outstanding. According to the supervisor, he rated Complainant as "outstanding" in two categories and "exceeds" in the remaining six. However, the record does not contain a copy of the evaluation at issue.

The only performance appraisals submitted by the Agency are from the supervisor's predecessor, which reflect that Complainant "is an outstanding, professional, and dedicated employee. In our operation he can always be counted on."In the narratives addressing each of the six elements, the terms "outstanding" and "exceptional" were used repeatedly.

Complainant's current supervisor attested that "I never had no complaints about [C's] performance. . . if you told [him] to go do a job, it got done."However, when asked by the investigator "Was there was anything that you do have a problem with?", the supervisor plainly stated: "Constantly complaining." The supervisor proceeded to describe the various requests for accommodations that Complainant made with respect to the commissary (i.e. mats, chairs, counters).7 

Consequently, in light of the supervisor's vague assertions (i.e. that Complainant's work was good but not outstanding), the absence of the lower evaluation itself, and the Agency's failure to present a legitimate reason, in the face of two previously glowing evaluations, the Commission concludes that the supervisor's actions were taken in reprisal for Complainant's prior EEO activity.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission hereby AFFIRMS the finding of no discrimination with respect to claims (1), (2) and (4). The Agency's decision regarding claims (3) and (5) was improper and is hereby REVERSED.

ORDER

The Agency is ordered to take the following remedial action within sixty (60) days of the date this decision becomes final:

1. Ensure that all Agency records reflect that Complainant received an "outstanding" rating on his quarterly performance evaluation.8 

2. Conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages within 150 calendar days after this decision becomes final.

3. Provide eight (8) hours of EEO training to the responsible management officials regarding their responsibilities under EEO laws with an emphasis on retaliation.

4. Consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).

5. Post copies of the attached notice in accordance with the statement entitled "Posting Order."

The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.

POSTING ORDER (G0610)

The Agency is ordered to post at its Federal Correctional Institution in Cumberland, Maryland, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material, The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action."29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated.See29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610)

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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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. See29 C.F.R. § 1614.604. 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. See29 C.F.R. § 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

Carlton M. Hadden
Director
Office of Federal Operations

July 7, 2011

1. The record is unclear when precisely Complainant requested the accommodation. Complainant asserts that it was on August 30, 2006. The Agency counters that Complainant delayed the interactive process, by failing to respond to their request for medical information until August 1, 2007. The record contains an August 1, 2007 memorandum, submitted by the union on Complainant's behalf, seeking a response to the request.

2. The Agency noted that those in the Materials Handler Supervisor position perform their duties on a rotational basis. Consequently, to excuse Complainant from working in the commissary permanently would impact the other employees. The Agency also considered Complainant's request that the commissary shopping schedule change to daytime. The adjustment, however, would result in problems with security, inmate accountability and work production.

3. We acknowledge that Complainant also expressed his preference to remain in his Materials Handler Supervisor position, without the commissary duties. The warehouse work allowed him "to do whatever he wanted" (regarding standing or sitting), while he was "tied to a desk more" with the telephone monitoring.

4. The Supervisor attested that he never viewed the documents. Further, it is unclear whether the Safety Manager ever possessed Complainant's medical records.

5. We note that Complainant only indicated he was unable to perform his commissary duties, not his warehouse responsibilities.

6. Previously, a Warehouse Supervisor position existed between Complainant and the Trust Fund Supervisor. When that position was removed, Complainant began to report directly to the Trust Fund Supervisor.

7. The Agency's own decision states, albeit inaccurately, that when asked why he rated Complainant as "exceeds" rather than "outstanding" the supervisor "responded because [C]omplainant 'didn't work the commissary'."

8. The record reflects that Complainant is no longer employed with the Agency. Consequently, the Commission shall not order that the collateral duty Firearms Instructor position be reinstated.