Mozelle G., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120121002 Agency No. 200306742010103068 DECISION On December 13, 2011, Complainant filed an appeal from the Agency's November 2, 2011, final decision concerning her 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 MODIFIES the Agency's final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Staff Physician at the Agency's Central Texas Veterans Health Care System located in Temple, Texas. During the relevant time, Person A, the Chief of Compensation and Pension Department since 2009, was Complainant's first-level supervisor. Person B, the Associate Chief of Staff for Ambulatory Care, was Complainant's second-level supervisor. Person C was the Chief, Employee Health, at the facility. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (tendinosis and rotator cuff tear of the right shoulder and tendinosis of her supraspinatus of the left shoulder) and in reprisal for prior protected EEO activity when: 1. From March 26, 2010, through the present, Complainant has experienced an increase in workload. 2. In early April 2010, Complainant was ordered and required to fill out a formal written request for accommodation to which there has been no response, and no accommodation. 3. On May 19, 2010, Complainant's request for Advance Cardiac Life Support (ACLS) training was cancelled by Person A, who cited Complainant's physical condition as his reason for cancellation of the training. 4. On June 9, 2010, Complainant had to submit for a fitness for duty examination. 5. On June 20, 2010, Complainant received in her mailbox a letter dated June 2, 2010, renewing her clinical privileges only until September 1, 2010, effectively reducing the renewal period from the usual two years to three months. 6. On June 22, 2010, Complainant learned that her locality percentage abruptly disappeared in the eighth pay period ending April 24, 2010. 7. Complainant was subjected to a hostile work environment when: a. On February 20, 2010, management assigned Complainant repetitive keyboarding duties. Complainant viewed this as removing her medical accommodation. b. From February 20, 2010, through the present, Complainant has experienced an increase in workload. c. In early April 2010, Complainant was ordered and required to fill out a formal written request for accommodation but management failed to respond to the accommodation request. d. On April 19, 2010, Complainant was threatened with discipline if she did not work beyond her medical restrictions. e. On May 19, 2010, Complainant's request for Advance Cardiac Life Support (ACLS) training was cancelled by Person A, who cited Complainant's physical condition as his reason for cancellation of the training. f. On June 9, 2010, Complainant had to submit for a fitness for duty examination. g. On June 20, 2010, Complainant received in her mailbox a letter dated June 2, 2010, renewing her clinical privileges only until September 1, 2010, effectively reducing the renewal period from the usual two years to three months. h. On June 22, 2010, Complainant learned that her locality percentage abruptly disappeared in the eighth pay period ending April 24, 2010. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency noted that Complainant had tendinosis in both shoulders and a partial tear of a tendon in her right shoulder, precipitating a 10-pound lifting limitation (5 pounds for repeated lifting) from her physician, as well as a limitation on performing manual tasks. The Agency noted that both her supervisors were aware of her condition. The Agency noted Complainant had previously received an accommodation of her condition from a prior supervisor, based on a doctor's note from approximately May 2009. The Agency stated that beginning in February 2010, Complainant was assigned a new supervisor who required her to regularly co-sign additional physician pro-rated documents. The Agency noted that Complainant indicated that the additional keyboarding from co-signing, along with the other new assignments, exacerbated her condition. The Agency noted that in April 2010, Complainant was asked to submit a written accommodation request, which she did on April 21, 2010. The Agency noted that on April 30, 2010, Person C determined Complainant's condition, while restrictive, did not constitute a disability under the Rehabilitation Act. The Agency stated that with regard to claim (7), Complainant alleged that she was subjected to a hostile work environment based upon disability and in reprisal for her EEO activity (in filing the instant complaint). Regarding the claim of harassment based on reprisal, the Agency noted that Complainant claimed that she first informed her first-level and second-level supervisors of her informal EEO complaint on April 21, 2010 (the day following the letter from her attorney to the facility's EEO Manager). Accordingly, the Agency determined that all actions undertaken by her supervisors prior to the initiation of the EEO process could not possibly have been in retaliation for her EEO activity. Thus, the Agency dismissed reprisal as the basis for the claims which predated this activity, specifically, claims 7(a)-(d). With regard to the rest of her harassment claim, the Agency found the alleged incidents were not objectively so severe or pervasive as to alter the conditions of her employment. The Agency noted that Complainant did not appear to have been singled out to do anything that was not asked of other physicians, and the Agency found the eight allegations did not rise to the level of harassment. The Agency determined Complainant's significant limitation on the major life activity of lifting, as well as the limitation on the performance of manual tasks, constituted a restriction, as compared to the general population. Thus, the Agency found Complainant was an individual with a disability. The Agency noted that Person C's decision acknowledging Complainant's 10-pound lifting restriction but concluding that she was not an individual with a disability was clearly erroneous. The Agency stated that beginning in February 2010, Complainant's supervisors increased Complainant's workload to add additional patient examinations and/or signoffs, which contradicted Complainant's restrictions and exacerbated her condition. The Agency also noted Complainant was threatened with disciplinary action in April 2010, for not working in contravention of her restrictions, although the Agency stated that the Letter of Counseling was not issued. The Agency concluded that these actions constituted unlawful denial of Complainant's previous and ongoing accommodation requests, including the request submitted on April 21, 2010, in response to management's requirement that Complainant file a written accommodation request. The Agency stated that the opinion of the second-level supervisor that the additional signing (which apparently accumulated to hundreds of signatures) was harmless, was inadequate, and it was improper to substitute his own medical opinion for that of Complainant's physician and/or the Agency's medical officer. With regard to the disparate treatment allegations which were not encompassed in the reasonable accommodation analysis, the Agency found no disparate treatment for claims (4), (5), and (6). The Agency determined the fitness for duty examination was justified in light of the concerns about Complainant's inability to perform certain aspects of her job. The Agency stated that as the fitness for duty examination was found to be lawful, the limitation of the renewal of Complainant's clinical period based on the pending results of that examination was also lawful. The Agency also stated that with regard to the disappearance of locality pay from the pay stub, the relevant document indicates that this was a function of an administrative change which affected all employees, but had no substantive impact on Complainant's actual pay and could not have been attributable to disparate treatment. Finally, with regard to claim (3), the Agency noted that Person A indicated he denied her request for ACLS training based on it no longer being a requirement for many physicians, including Complainant. The Agency noted, however, that Complainant's testimony was corroborated by Person B, who indicated that Person A felt her exclusion was "for her own good" because aspects of the training involved physical exertion. The Agency noted that Complainant stated she could have received the benefits of the training without undertaking the physical component, and the Agency concluded it was not up to Person A to exclude her on that basis. The Agency stated that excluding Complainant based on the supervisor's conclusions as to what was safe for Complainant to undertake constituted "exactly the manner of paternalistic judgments which the statute was intended to preclude, in favor of an objective determination by a competent agency official." The Agency noted that was the case where, in that situation, Complainant's participation in the program could have been modified to permit her to participate safely, as she had done in the past. Thus, the Agency determined Complainant's exclusion on the basis of her disability constituted disparate treatment. As relief, the Agency awarded Complainant compensatory damages and attorney's fees plus costs. The Agency also ordered Complainant be paid for any lost pay attributable to the denial of her accommodation and that any sick leave taken as a result of that denial be restored. In addition, the Agency ordered Complainant be permitted to attend an ACLS training session as soon as one becomes available. The Agency noted that in the future, her attendance at such training shall mirror that of other, similarly-situated physicians. Further, the Agency stated Complainant's duties shall revert to what they were in February 2010. The Agency clarified that if management regards her production as inadequate, any modification of her duties shall be undertaken in conjunction with input from the Agency's medical officer and Complainant's personal physician, and shall be consistent with the Agency's reasonable accommodation obligations under the Rehabilitation Act. The Agency also ordered Person A, Person B, and Person C to undergo eight hours of training regarding management's obligations under the Rehabilitation Act. Finally, the Agency stated that appropriate Agency officials should consider taking action with respect to Person A, Person B, and Person C, which may include counseling surrounding their disregard of statutory requirements pertaining to individuals with disabilities. On appeal, Complainant states she does not challenge the Agency's finding that it discriminated against her and denied her a reasonable accommodation. Rather, Complainant claims the Agency failed to properly analyze her retaliation claim by considering her "opposition" to discriminatory actions and not just her "participation" in the EEO process. Specifically, Complainant notes that in an April 9, 2010 electronic mail message to Person A and Person B, she notified her supervisors that she was requesting help and that the work she was being assigned was aggravating her injury due to the repetitive nature of the task. Complainant claims this message constituted a request for reasonable accommodation and was protected EEO activity. She noted that within several days, on April 19, 2010, she was issued disciplinary counseling regarding the assigned task of cosigning reports which was the task identified in her April 9, 2010 electronic mail message. Complainant also noted that the counseling was also taken within one day of her April 18, 2010 electronic mail message to Person A and Person B which gave them notice of her decision to file an EEO complaint. Complainant also argues that the Agency improperly found that she was not subjected to harassment. Complainant claims that the Agency's conduct resulted in further injury to her already injured shoulders. Complainant claims the actions by Person B injured her further causing her to still be out of work for these injuries. Complainant states that her harassment claims are supported by the fact that the illegal orders issued by Person B instructed her to perform the exact type of repetitive work she was not supposed to do, which she states Person B knew at the time he gave her such an order. 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). 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"). At the outset, we note that Complainant does not challenge the Agency's finding of disability discrimination regarding issue (3) or the Agency's determination that she was denied a reasonable accommodation, and that finding is AFFIRMED herein. We now address the Agency's finding of no discrimination with regard to issues (4) and (5). With regard to issue (4), Complainant alleges discrimination surrounding a June 9, 2010 fitness for duty examination. The record reveals that in a June 3, 2010 letter, Complainant was notified that she had to attend a fitness for duty examination to determine her physical capability to efficiently perform the duties of her position as a Physician without hazard to herself or others. The letter noted that the examination was based on "concerns [the] Service has regarding statements [Complainant] made about physical difficulties in performing assigned tasks." The record reveals the fitness for duty examination occurred on June 9, 2010. In her affidavit, Complainant noted that she had been successfully performing her duties with reasonable accommodation of her disability since 2008. She stated that there was no change in her medical condition which would have warranted a fitness for duty examination. The record contains a January 4, 2010 letter from her physician stating that Complainant "should refrain from doing any kind of repetitive activity with the mouse, she should avoid excessive keyboarding and C-file reviewing." The letter also noted Complainant should be exempted from the musculoskeletal exams that require a lot of active strength because of her shoulder and hand problem. The doctor also stated that Complainant should not lift more than five pounds. The record contains an April 12, 2010 letter from Complainant's physician stating that he has been treating Complainant for several years for bilateral shoulder pain. The physician noted Complainant had a partial supraspinatus tear of her right shoulder and tendinosis of her supraspinatus of the left shoulder. The physician noted Complainant at that time was working an eight-hour day in that she was seeing patients until 2:00 p.m. and doing the appropriate documentation for those patients for the remainder of the day. He noted that Complainant stated that recently "she has been put in charge of cosigning additional documents for CMP exams" and she stated that "this has significantly increased the amount of pain that she has had in both of her shoulders." The physician advised that this duty should be removed. He noted that all other restrictions should be maintained, including no lifting greater than 10 pounds at any one time and no lifting more than five pounds on a repeated basis. The letter also noted Complainant should be exempted from the musculoskeletal exams and active muscle strength testing. In his affidavit, Person B noted that the Agency had tried to modify Complainant's job functions by giving her cosigning duties, which he stated, in management's opinion, were essentially cognitive functions that required minimal keyboarding. Person B stated that despite all efforts of accommodation, Complainant was still unable to carry out those essential job functions. Person B explained that as a result he requested some help from Human Resources and a fitness for duty examination was ordered to "help [him] to determine what can she do, can she do the job, essentially, based on the medical condition." With regard to issue (5), Complainant claimed that on June 20, 2010, she received a letter dated June 2, 2010, renewing her clinical privileges only until September 1, 2010. Complainant noted that the usual renewal period was two years and the Agency only renewed her privileges for three months. In his affidavit, Person B acknowledged that the normal renewal period for clinical privileges was for two years and that Complainant's privileges were renewed for a three-month period. He stated that the Professional Standards Board reviews all applications for renewing privileges. Person B noted that one area that was examined during the renewal process was whether the physician had any medical issues that would prevent them from performing their duty. He stated that the fitness for duty examination had already been requested so there was pending information on whether Complainant could perform the job. Person B noted that thus, Complainant's medical privileges were not denied but were renewed for a shorter period of three months. Upon review, we find the Agency improperly determined that Complainant failed to show that she was subjected to discrimination with regard to issues (4) and (5). As the Agency noted in its final decision, Complainant's supervisors increased Complainant's workload to add additional patient examinations and/or signoffs, which contradicted Complainant's restrictions. The Agency has already found Complainant was disabled and denied a reasonable accommodation in this matter. We find that both the fitness for duty examination and the renewal of clinical privileges for three months as opposed to the usual two-year period stemmed from the discriminatory denial of reasonable accommodation and the assignment of these additional duties which violated Complainant's medical restrictions. With regard to issue (6), Complainant claimed that on June 22, 2010, she learned that her locality percentage abruptly disappeared in the eighth pay period ending April 24, 2010. The Agency noted that with regard to the locality pay disappearing from the pay stub, this was the result of an administrative change which affected all employees and had no substantive impact on Complainant's actual pay. The record reveals that according to the Supervisor, Civilian Payroll Technician, at the Central Texas Veterans Healthcare System, on September 13, 2009, the Agency pay went under the control of the Defense Finance and Accounting System (DFAS). The Supervisor, Civilian Payroll Technician noted that sometime in April DFAS produced new leave and earning statements and the market pay was not included at the top of the statement. Thus, we find Complainant failed to show that the Agency's actions with regard to issue (6), were based on her disability or taken in reprisal for protected EEO activity. In addition, Complainant claimed that she was subjected to discrimination on April 19, 2010, when she was threatened with discipline if she did not work beyond her medical restrictions. In its final decision, the Agency acknowledged that Complainant was threatened with disciplinary action in April 2010, for not working in contravention of her restrictions; however, the Agency stated the Letter of Counseling was not actually issued. The record reveals that on April 18, 2010, Complainant sent an electronic mail message to Person A and Person B stating "I am writing you to inform you that I am filing an EEO complaint of disability discrimination." The record reveals that on April 19, 2010, Person A acknowledged receipt of the April 18, 2010 electronic mail message. On appeal, Complainant provides an April 19, 2010 electronic mail message from Person B stating: You have dozens of uncosigned notes, more than 100 (one hundred) dating back to April 6. I have previously spoken and written to you about these notes. Your actions are grievously damaging the turnaround time for the C&P section. I have directed that a formal written counseling be issued. Please be sure the backlogged notes are cleared by Friday April 23, otherwise further disciplinary action will be entertained. Complainant also supplies a copy of an April 19, 2010 Memorandum signed by Person B with the subject "Notification of Counseling - Unreasonable Delay in Carrying out Instructions." The Memorandum states that the letter of counseling was being presented to Complainant due to her "deliberate failure or unreasonable delay in carrying out instructions" and noted that Complainant had more than 100 uncosigned notes dating back to April 6, 2010. The Rehabilitation Act prohibits an employer from retaliating against an employee for engaging in protected activity. 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. EEOC Compliance Manual, Section 8: Retaliation, No. 915 003, at 8-13 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 67 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially ad-verse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process). 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. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). A complainant can establish a prima facie case of reprisal 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. 802 (1973)). Specifically, in reprisal, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) complainant engaged in protected activity; (2) the agency was aware of the protected activity; (3) subsequently, complainant 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). The anti-retaliation provisions of the Rehabilitation Act protect those who oppose discriminatory employment practices as well as those who participate in the EEO process. EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 § 8-III.B. (May 20, 1998) (EEOC Compliance Manual on Retaliation). Participation occurs when an employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. Id. § 8-II.C. A complaint or protest about alleged employment discrimination constitutes opposition to discrimination. Id. § 8-II.B. A person is protected against retaliation for reasonably opposing perceived discrimination if he or she had a good-faith belief that the challenged practice was unlawful, regardless of whether the practice ultimately is found to be unlawful. Id. § 8-II-B.3. Participation is protected regardless of the validity or reasonableness of the underlying complaint. Id. § 8-II.C.2. A request for reasonable accommodation constitutes protected activity. Id. 8-II.B.2. In this case, we find that Complainant has established a prima facie case of reprisal by presenting facts that give rise to an inference of discrimination. Complainant engaged in protected activity when on April 18, 2010, she informed Person A and Person B that she was filing an EEO complaint. In addition, we note that in an April 9, 2010 electronic mail message to Person A and Person B, Complainant informed them that with regard to the assignment of co-signing exams given to her in February 2010, "I am not physically able to finish this time sensitive task needing repetitive motion because of my documented physical disability. This task is aggravating my injury. I am doing as much as I am physically able to do and it is too much for me." We find Complainant's April 9, 2010 electronic mail message to constitute a request for reasonable accommodation which was also protected activity. We find the Agency subjected Complainant to an adverse action when it threatened her with disciplinary action on April 19, 2010, for not working in contravention of her restrictions as this action was reasonably likely to deter Complainant or others from engaging in protected activity. On appeal, the Agency admits that Complainant informed management on April 18, 2010, that she intended to file an EEO complaint. The Agency does not dispute on appeal that Person A and Person B were aware of that email on April 18, 2010, and that Persons A and B knew about her prior requests for reasonable accommodation. The Agency's decision to threaten Complainant with disciplinary action and to issue the Letter of Counseling occurred in such close temporal proximity to Complainant's April 9, 2010 request for reasonable accommodation and her April 18, 2010 notice that she was filing an EEO complaint alleging disability discrimination, as to demonstrate a causal nexus between the protected activity and the adverse treatment. Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks. 509 U.S. 502, 519 (1993). In the present case, the Agency claimed that the Letter of Counseling was never issued. However, we note that Complainant provided a signed copy of the April 19, 2010 Letter of Counseling. Thus, we find the Agency failed to articulate a legitimate, nondiscriminatory reason for its actions. Upon review, we find Complainant has proven, by a preponderance of the evidence, that she was subjected to unlawful retaliation regarding the issuance of the Letter of Counseling. On appeal, the Agency does not refute Complainant's evidence that the Letter of Counseling was ultimately issued. Even if it had not been issued, we would find that the threat of the disciplinary action constituted retaliation because of the almost immediate timing between the threat and the directly linked protected activity. Moreover, we find that Complainant established that she was subjected to discrimination based on her disability as a result of the Agency's actions in threatening her with disciplinary action on April 19, 2010, for not working in contravention of her restrictions, and ultimately issuing her a Letter of Counseling for not completing those assignments in contravention of her restrictions. Specifically, we find that the threat of disciplinary action and the ultimate issuance of the Letter of Counseling stemmed from the discriminatory denial of reasonable accommodation and the assignment of these additional duties which violated Complainant's medical restrictions. We find Complainant failed to show that the Agency's actions constituted harassment based on reprisal for her protected activity, because only the Letter of Counseling issue was motivated by retaliation. We find that the Agency's actions constituted a hostile work environment based on disability discrimination. The denial of a reasonable accommodation plus the continual effects from that denial which included the Letter of Counseling, the fitness for duty examination, and the reduction in clinical renewal privileges renewal period, when considered together, created a hostile work environment based on disability. CONCLUSION Accordingly, the Agency's decision finding no discrimination with regard to issue (6) and no retaliatory harassment is AFFIRMED. The Agency's decision finding denial of reasonable accommodation and finding discrimination with regard to issue (3) is AFFIRMED. The Agency's decision finding no discrimination with regard to issues (4), (5), hostile work environment based on disability, and the Letter of Counseling is REVERSED. We REMAND the matter for compliance with the Order listed herein. ORDER The Agency shall take the following actions: 1. Within 60 days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's discriminatory action. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than 60 days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. To the extent the Agency already issued compensatory damages for the denial of reasonable accommodation and the denial of training, we note Complainant is not entitled to receive double recovery for those issues. 2. Within 60 days of the date this decision becomes final, to the extent it has not already done so, the Agency shall pay Complainant in the event there was any lost pay attributable to the denial of her accommodation and shall restore any sick leave taken as a result of that denial. The Agency shall advise Complainant in writing of: (1) the amount of leave and compensation due her; and (2) how management reached its determination regarding these matters. 3. To the extent Complainant is working at the Agency and to the extent that it has not already done so, the Agency shall permit Complainant to attend an ACLS training session as soon as one becomes available. 4. Within 60 days of the date this decision becomes final, to the extent Complainant is working at the Agency and to the extent it has not already done so, the Agency shall revert Complainant's duties to what they were in February 2010. If management regards her production as inadequate, any modification of her duties shall be undertaken in conjunction with input from the Agency's medical officer and Complainant's personal physician, and shall be consistent with the Rehabilitation Act. 5. Within 60 days of the date this decision becomes final, the Agency shall provide at least eight hours of training to Person A, Person B, and Person C regarding their obligations under the Rehabilitation Act and their obligation not to retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings under, Federal equal employment opportunity laws. 6. Within 60 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against Person A, Person B, and Person C identified as the responsible management officials for perpetrating discrimination against Complainant. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. 7. Within 60 days of the date this decision becomes final, the Agency shall expunge the April 19, 2010 Letter of Counseling from Complainant's personnel file. 8. Within 60 days of the date this decision becomes final, the Agency shall ensure that the renewal process for Complainant's clinical privileges do not refer to the June 9, 2010 fitness for duty examination or any results stemming from that examination. In addition, the Agency shall ensure that the renewal process for Complainant's clinical privileges do not refer to any of the incidents found do be discriminatory or stemming from the Agency's improper denial of reasonable accommodation. 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 evidence that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Temple, Texas facility 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. See 29 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. See 29 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. See 29 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. See 29 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. See 29 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 April 10, 2014 Date 2 01-2012-1002 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120121002