Denese L.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency. Appeal No. 0120130297 Hearing No. 570-2009-00044X Agency No. OS-08-0178 DECISION Complainant filed an appeal from the Agency's September 27, 2012, 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision. ISSUES PRESENTED The issues presented are whether the Agency's final decision properly found that Complainant did not establish that the Agency subjected her to disparate treatment on the bases of reprisal and disability discrimination, denied her reasonable accommodations for her disability, and improperly maintained her medical information. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Drug Program Specialist, GS-0301-11, at the Agency's National Business Center (NBC), Drug Testing Office, Employee and Public Service Division, in Washington, D.C. Complainant has worked for the Agency since 1992 and has been a Drug Program Specialist, GS-11, since the summer of 2007. According to the position description, Drug Program Specialists are responsible for managing the Agency's drug-testing database; recommending policy and procedure changes; providing assistance to bureau coordinators; conducting testing; and assisting in conducting training and education to employees on in-house collection procedures. Drug Program Specialists also assist in marketing drug and alcohol testing services to other federal agencies and training for agencies. In January 1993, Complainant was diagnosed with breast cancer, and subsequently had at least four different major surgeries related to the cancer. Following surgery (lumpectomy) in May 2007, Complainant was out of work for approximately two months. In August 2007, Complainant sought to use leave that employees had donated to the Agency's Leave Share Program. Also, in August 2007, Complainant asked her second-line supervisor (S2) if she could combine her two 15-minute breaks with her half-hour lunch so that she could have an hour for lunch to take her medications. In an email to Complainant dated August 10, 2007, S2 requested that Complainant provide written medical justification from her physician regarding her lunch request. In a note dated August 13, 2007, Complainant's physician stated that she could not perform drug testing because of her suppressed immune system. In an email dated August 17, 2007, S2 informed Complainant that the "brief general note" from her physician did not provide specific medical justification or details, and Complainant must provide such documentation by August 21, 2007. In an email dated September 5, 2007, S2 informed Complainant that he would not approve Complainant's leave share request unless Complainant submitted additional medical documentation. Specifically, S2 asked Complainant to submit documentation from her physician that addressed the following four issues: 1) the medical condition for which Complainant was treated; 2) the duration of the treatment; 3) any duty limitations while undergoing treatment; and 4) the estimated date when Complainant could return to full duty. Additionally, S2 advised Complainant to provide documentation from her physician showing that any leave taken was the direct result of her medical condition when requesting leave through the leave share program. In an email dated September 11, 2007, Complainant requested bereavement leave or Family and Medical Leave Act (FMLA) leave because her mother had died on September 4, 2007. In an email dated September 11, 2007, S2 responded that he did not grant advanced leave, and that Complainant had 16 hours of annual leave that she could use in this circumstance. In an email to Complainant's immediate supervisor (S1) dated September 13, 2007, S2 responded that Complainant had no sick leave and should not use leave share donations unless her leave was directly related to the medical condition for which her application was prepared. S2 further stated that if Complainant intended to use leave share, she needed to submit medical documentation demonstrating that her sick leave was directly related to the medical condition identified in her leave share application, such as a note from her physician indicating that she underwent medical treatment on September 13, 2007. In a letter dated September 14, 2007, Complainant's physician informed the Agency that Complainant should be excused from work on September 4, 5, 6, 12, 13, and 14, 2007, because she was on sick leave and funeral leave after suffering the loss of her mother on September 4, 2007. The physician further stated that Complainant was receiving chemotherapy treatments and needed to be on leave intermittently to receive those treatments. In an email to a Human Resources (HR) official dated September 17, 2007, Complainant requested that leave share donations be applied to her leave on September 4, 5, 6, 12, 13, and 14, 2007, because she was "truly ill" with complications from cancer during that period. Complainant further stated that although she attended her mother's funeral on September 12, 2007, she was also experiencing illness related to cancer during the relevant period. In an email to an HR official dated September 18, 2007, S2 stated that Complainant could use leave donations for each day she was on leave because of sickness, but she could not use donated leave for the day of her mother's funeral, even if she may have been ill on that date. In a letter dated September 24, 2007, Complainant's physician notified the Agency that Complainant had had three major breast cancer surgeries in May 2007; Complainant must be allowed to attend chemotherapy appointments every three weeks; the chemotherapy treatments must change because of white or red blood cell count; Complainant must be allowed to eat and drink as needed in a non-rushed manner; and Complainant should be able to combine her breaks with her lunch to ensure proper nutritional needs are met and that she digests her food without stress. The physician further stated that Complainant was restricted from handling and performing in-house urine specimen collections or from being in the presence of "any drug- testing person in the drug-testing room." Report of Investigation (ROI), p. 199. Additionally, the physician stated that Complainant should not travel for her job because she had a weakened immune system that should not be further compromised, and traveling might interfere with her recovery. The physician concluded that Complainant should be able to resume her full duties by December 2007. In a letter dated September 28, 2007, S2 stated that he would approve Complainant's new leave share application. S2 further stated that in response to the requests of Complainant's physician, Complainant would be allowed to combine her lunch period and breaks and would not have to travel, participate in the urine collection process, or handle bodily fluids. Effective October 11, 2007, Complainant's third-line supervisor (S3) arranged a temporary assignment for Complainant to the Budget Management Office (BMO). In an email dated January 7, 2008, S2 notified Complainant that she would return to the Drug Testing Office, effective January 10, 2008. S2 further notified Complainant that she could combine her breaks with lunch and was granted access to a scooter to assist her with mobility. In a meeting with Complainant on January 11, 2008, S3 notified Complainant of a permanent reassignment opportunity in the Passport Office that would become effective January 22, 2008. Complainant subsequently met with S3, S2, and the Supervisory Management Analyst about the Passport Office reassignment. Complainant raised questions about the imposition of a six-month probationary period that accompanied the reassignment. According to Complainant, during the meeting, S3 asked Complainant why she contacted Human Resources about the reassignment instead of directly contacting him, yelled at her, and said, "I bust my ass for you, and this is what you do behind my back!" On July 1, 2008, Complainant submitted a physician's letter that stated that she had experienced abdominal pain since her breast surgery in May 2007, and she should not lift or carry heavy items or packaging. Complainant also submitted an "Orthopaedic Consultation Report" dated July 1, 2008, to the Agency. The report stated that Complainant had breast cancer; had surgery on her breast, followed by extensive chemotherapy; experienced side effects because of the chemotherapy, including orthopedic issues such as significant fluid retention, swollen, painful knees, peripheral neuropathy, and numbness, tingling, and burning sensations in her lower extremities; and had a history of Carpal Tunnel Syndrome. The report further stated that when she returned to work, she should not stand more than 10 minutes per hour in an eight-hour workday, work for a "long period of time," and might need an additional five days to provide information because of her Carpal Tunnel Syndrome. The report also stated that Complainant should work in one location and not have to travel because of the problems with her lower extremities. On July 9, 2008, S2 issued her a "leave usage" letter in which he stated that treatment for Carpal Tunnel Syndrome and arthritis were not the intended conditions covered by her approved leave share use. The letter further stated that Complainant failed to provide documentation to cover leave share used during pay period 14; therefore, she would be charged leave without pay (LWOP). The letter also stated that Complainant's inability to work a full-time schedule was long-standing and went back to her reassignment to drug testing. The letter noted that Complainant took over 200 hours of leave in 2006, 630 hours of leave in 2007, and 350 hours of leave in the first six months of 2008. The letter stated that S2 would recommend that HR explore other options for Complainant, including disability retirement, medical retirement, or removal, because it appeared she was not medically capable of performing her duties. HR did not take any action pursuant to the letter. On February 12, 2008, Complainant filed an EEO complaint, which was subsequently amended. The complaint alleged that the Agency discriminated against Complainant on the basis of disability and in reprisal for prior protected EEO activity arising under the Rehabilitation Act when: 1. From August 2007 through the present, Complainant was denied a reasonable accommodation for her disability; 2. From June 2008 to the present, Complainant had been denied the use of the Agency's leave share program for treatment related to her cancer and related medical conditions; 3. On July 9, 2008, Complainant received a letter entitled "Leave Usage" that threatened Complainant with adverse action because of her disability and her request for reasonable accommodation; 4. On October 23, 2008, Complainant received a Performance Evaluation rating of "Minimally Successful" for the rating period February 5, 2008, through September 30, 2008; and 5. The Agency failed to maintain information obtained pursuant to a medical inquiry on separate forms and in separate medical files, and failed to treat the information as a confidential medical record. 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. On December 1, 2008, Complainant filed a motion to amend her complaint to include the matters identified above as claims 3, 4, and 5. Deposition Testimony During a deposition, Complainant testified that the Agency denied her reasonable accommodations for her disability when it denied her request to participate in the Voluntary Leave Transfer program (leave share), placed her on leave without pay (LWOP), and denied her request to have more time to complete invoices. Complainant stated that in June 2008, her physicians restricted her from working and traveling to other sites, but in September 2008, S2 told her that her medical documentation was unacceptable and told her to travel to other work sites with staff because the documentation was insufficient. However, Complainant further testified that S2 never made her travel to another site, nor did she ever travel to another site. Complainant's Deposition Transcript (DT), p. 47. Complainant also testified that in September 2007, she requested leave through the leave share program because of her Carpal Tunnel Syndrome, degenerative joint disease of the knees, and cancer, but S2 denied her leave through the program. Complainant testified that she needed leave through leave share because of chemotherapy treatment, and her Carpal Tunnel Syndrome and degenerative joint disease were related to her cancer. Complainant further testified that the BMO Chief ultimately approved her application for the leave share program, although S2 did not. Complainant further testified that she remembered S2 telling her that he would approve her leave share request if she brought certain documentation to him. Complainant testified that her physician recommended that the Agency grant her five additional days to complete her invoice assignments. She stated that she has turned in two or three invoices beyond five days late after she submitted the letter from her physician about needing more time. Complainant also testified that she has never gone to managers and told them that she was not given enough time to complete a project. Complainant's DT, p. 138. Complainant testified that she needed more time to complete assignments because cancer treatments and medications sometimes caused her to experience blurred vision for up to an hour. Complainant testified that she tried to apply for leave through leave share for her absences in June 2008 that were caused by breast cancer, but she was placed into LWOP status while she was sick for a couple of months and had no sick leave. Complainant testified that S2 gave her time to submit documentation from her doctors, and she provided the documentation, but she remained in LWOP. She testified that S2 told her that her submitted documentation was unacceptable because it did not pertain to breast cancer. Complainant also testified that she should have been approved for leave share because all of her conditions were caused by or related to breast cancer. Complainant testified that HR officials told her that she could use leave share as long as her absences pertained to breast cancer, and this could be recorded as a timeshare code on her time and attendance accordingly. Complainant stated that she entered leave share in the time and attendance system because she assumed that S2 would approve her for leave through leave share because the leave was related to breast cancer. Regarding the leave usage letter, Complainant testified that over the previous two years, she was out of work for more than 30 days, and she was out of the office more than her coworkers because of her health issues. Regarding the performance evaluation, Complainant testified that she believed that her "minimally successful" rating was discriminatory because her use of leave share was held against her. Complainant further testified that she did not make the seven coding errors alleged in her performance evaluation. She stated that one of the alleged errors in March 2008 pertained to chain of custody, but she is "a hundred percent accurate." Complainant's DT, p. 78. Complainant also testified that she was penalized for making Quicktime time and attendance errors related to her request for leave under the leave share program. Additionally, Complainant testified that she completed some of her assignments in a timely manner, but she did not complete other assignments in a timely manner. Complainant further stated that her physicians restricted her from working in the Drug Testing Office all day. Complainant testified that during a meeting with the BMO Chief, S2, S3, and the Chief of the Security Office on January 11, 2008, she was offered a reassignment to the Passport Office. Complainant further testified that on January 23, 2008, S3 rescinded the offer and told her to go back to the Drug Testing Office. S1 testified that he has supervised Complainant since August 2007. S1 testified that during the relevant time period, he was aware that Complainant had cancer and was undergoing chemotherapy. He testified that when Complainant submitted documentation from her physician indicating that she was medically restricted from handling urine samples, he consulted with S2. S1 further testified that S2 advised him to ask Complainant for more documentation. S1 also testified that Complainant submitted a letter from her physician that indicated that she had Carpal Tunnel Syndrome and knee problems. S1 further testified that he was aware that the Team Leader gave Complainant more time to complete her assignments, generally about five days beyond deadlines. However, S1 stated that although Complainant was informed about the deadline flexibility, he could not recall if the notification was written or verbal. S1 also testified that he was concerned about the amount of leave Complainant used because it was "hundreds of hours," and he thought her leave prevented the office from getting work done. S1's DT, p. 142. S1 testified that he did not attempt to limit Complainant's leave, but he talked to S2 about the amount of hours of leave Complainant took and the need for staff to perform collections. S1 further testified that Complainant and another employee were the only people in the Drug Testing Office who do not travel.2 S1 testified that he rated Complainant minimally successful in critical element 2 because she had more than seven coding errors and assignments that were not completed in a timely manner. He stated that coding errors can be errors on time and attendance or chain of custody forms. S1 testified that he did not know of any other employees who made the number of time and attendance entry errors that Complainant made, and he did not believe any other employees received a minimally successful rating. S1's DT, pp. 168, 173. S1 stated that time and attendance coding is related to performance standards. S1 further testified that he did not have a role in approving Complainant's leave share requests because S2 made that decision. S1 testified that he mistakenly approved Complainant's leave share request once, but S2 told him that his actions were improper. S2 testified that the essential duties of Drug Program Specialist positions are collecting urine specimens for approximately 75 federal agencies; identifying and reviewing documentation to ensure that the employee being tested has verified his/her identity; overseeing the process of acquiring the urine sample; and completing the chain of custody of the sample. S2 also testified that there is a component of the Drug Program Specialist position that involves evaluating bills to verify the accuracy of invoices. S2 testified that the Agency provided Complainant with every requested accommodation, except for a "stress-free environment." S2's DT, p. 73. S2 testified that he initially approved Complainant for leave share associated with chemotherapy, and Complainant has never been required to travel. S2 also testified that Complainant took approximately 240 hours or six weeks off work in April/June 2008. S2 testified that he denied Complainant's request to use leave share for Carpal Tunnel Syndrome because she had been approved for leave share related to chemotherapy, and Carpal Tunnel Syndrome was not something he normally associated with chemotherapy. S2's DT, p. 205. S2 further testified that he very likely said that he thought it was "greedy" for Complainant to continually request leave share for new issues. S2's DT, pp. 216, 218, 219. S2 testified that he did not know if he ultimately approved or denied Complainant's 2008 leave share request, but 80 hours of leave associated with Carpal Tunnel Syndrome was initially charged LWOP to Complainant in 2008. S2 further testified that when he received medical documentation from Complainant, he filed it in a desk drawer in his office that also contained non-accommodation documents about work assignments, budgeting matters, performance appraisals, and "general working papers." S2's DT, pp. 160. 161. S2 testified that Complainant is the only employee for whom he keeps a file containing medical information. The Team Leader testified that during the relevant time period, she supervised nine employees, including Complainant. She further stated that she served as the timekeeper for Complainant, but S2 and S1 approved leave. She testified that Complainant was responsible for verifying invoices, filing chain of custody forms in the file cabinet, tallying and filing invoices in the Agency invoice folders, and collecting urine samples in the testing room. She testified that by the fall of 2007, she had learned that Complainant underwent chemotherapy because of cancer, and she received medical information from Complainant regarding her condition. The Team Leader testified that when Complainant requested leave through leave share, she presented the documentation to S2. The Team Leader stated that Complainant was provided the following reasonable accommodations because of her condition: not traveling; additional time to complete assignments; not standing for long periods of time; a detail assignment to BMO; surgical masks to wear during drug test collections; and combining breaks so that she could have one full hour for lunch. The Team Leader testified that Complainant was required to enter information3 about collections into the "Pembrooke system" immediately so that when the results were reported from the laboratory to Pembrooke that evening, the system would be able to link the result to the collections information. She stated that the initial information typically took less than one minute to input into five or six fields in the system. She stated that at most Complainant inputted ten or twelve initial data sets in a day, but there were occasions when Complainant did not immediately input the initial information into the system. The Team Leader further testified that Complainant also verified or validated invoices. She stated that Complainant should have been able to complete an invoice within one to five days, but she gave Complainant additional time to process the invoices because of her condition. The Team Leader stated that if the invoices normally had to be processed in a day, she gave Complainant an additional two to three days, and if the invoices had to be processed within five days, she gave Complainant an extra five days to process them. However, she stated that she did not talk to management about giving Complainant additional time or document this matter. The Team Leader further testified that "very rarely" did Complainant ever come to her and say that she needed more time for an assignment, and "very often" she tracked Complainant down and emailed her to try to find out why the assignment was not done. Team Leader's DT, p. 166. She stated that Complainant was sometimes months late in processing invoices, but this was not because of Complainant's sick leave. The Team Leader stated that she provided S1 with documentation and input for Complainant's 2008 performance evaluation. The Team Leader identified several performance problems that she thought were related to Complainant's performance rating. For example, she testified that on one occasion, Complainant requested leave through leave share in the time and attendance system without having medical documentation to support the request, and charged herself with annual and sick leave that she did not have. The Team Leader further testified that Complainant incorrectly coded leave on April 9, 2008, as "friend/family illness, as opposed to friend/family funeral" and coded three hours for leave share on April 7, 2008, but did not provide a doctor's note. Team Leader's DT, p. 179. The Team Leader further testified that she discovered that Complainant attributed chain of custody forms to the wrong agency. She also testified that on another occasion, Complainant failed to file chain of custody forms for White House employees, although these forms should have been filed the same day as the collection was done. The Team Leader testified that Complainant committed the only "fatal error" that she could recall during the relevant time period. She stated that a fatal error occurs when employees make mistakes in collections that cause the result to be canceled. The Team Leader stated that fatal errors include mismatched specimen seals, mismatched bar codes, not enough specimen in the container, no donor signature or printed name. The Team Leader stated that she believed that Complainant committed a fatal error when she mismatched the bar code on the chain of custody form with the wrong bar code on the specimen. The Team Leader stated that in the fall of 2007, Complainant's work hours were adjusted to 9:30 a.m. until 6:00 p.m. to accommodate her request for a reasonable accommodation. She stated that Complainant's failure to consistently be in her work area during scheduled work hours created a hardship for other employees who had to cover her work. The Team Leader also stated that Complainant spent an inordinate amount of time away from her work area for reasons unrelated to her medical condition. She stated that because Complainant cannot travel, there have been times when the Agency has had to turn down going out to perform collections because she did not have another collector to send out in the field. The Team Leader testified that she has had to assign invoices to other employees because Complainant has been so far behind in completing her invoices. The Team Leader further stated that she retained a file consisting of documents relating to Complainant's medical condition, and these medical documents were commingled with other documents, such as e-mails concerning Complainant's time and attendance and work performance. The Team Leader also stated that she maintained files on Complainant and some other individuals she supervised because of her responsibility as Team Leader, and these files were locked in a file cabinet. She stated that Complainant gave the documents to her in order to support her frequent requests for medical leave. S3 testified that in a meeting with Complainant in August 2007, Complainant told him that she was undergoing chemotherapy for breast cancer. S3 testified that during the meeting, Complainant expressed her dissatisfaction with her treatment in BMO, specifically, the requirement that she had to sign out if she was away from her desk for a period of time. S3 testified that Complainant also expressed her opinion that management created a hostile work environment for her during this meeting, but he did not recall her requesting a reasonable accommodation at that time. S3 stated that Complainant made "generalized complaints" about how "inhumane" and "mean" management was in the Drug Testing Office and how management made her sign out every time she had to leave the office or go to the bathroom. S3's DT, p. 148. S3 stated that he advised Complainant to work through the chain of command and to return to him if she could not resolve it through S1 and S2. S3 testified that Complainant requested to be moved out of Drug Testing during the meeting. S3 further testified that in September 2007, S2 informed him that Complainant sought to use leave share for bereavement, and HR concluded that this was not allowed. S3 stated annual and sick leave should be used for bereavement, not shared leave. S3 also testified that he was informed that Complainant also wanted to use leave share because of her medical condition, but he could not recall for what medical condition. S3 testified that he was concerned that Complainant was trying to use the Leave Share Program for reasons other than its intended purpose. "As I understand, her leave share was for either the chemo or the cancer or something, but she wanted to use it for carpel tunnel," S3 testified. S3's DT, p. 61. S3 also testified that S2 informed him that Complainant was pursuing leave share for items that were not authorized by the program, which was substantiated by HR. S3 stated that he understood that Complainant requested leave share for Carpal Tunnel Syndrome, but he never reviewed any medical documentation regarding this matter. He stated that he thought that this was an abuse of leave share because HR informed him that leave share had only been approved for Complainant's cancer and chemotherapy. S3 stated that he did not ask Complainant why she thought requesting leave share for Carpal Tunnel Syndrome was appropriate, and he did not know if any Agency official asked Complainant this question. S3 further testified that he did not know if there was a relationship between Complainant's cancer and Carpal Tunnel Syndrome. S3 testified that in order to be approved for leave share for Carpal Tunnel Syndrome, Complainant would have to submit medical documentation specifying that this condition substantiated a need for leave share. S3 further testified that he subsequently asked HR if Complainant could be detailed to that department, but HR management did not want Complainant because she tended to complain. S3 testified that in October 2007, he reassigned Complainant to BMO to provide her with a "cooling off period" to separate her from what she considered a "harsh working environment." S3's DT, p. 80. S3 testified that Complainant's assignment to BMO was not an attempt to provide a reasonable accommodation for her disability or a medical concern. He stated that Complainant helped to implement a new file management system during her BMO detail. S3 testified that Complainant's detail in BMO ended in January 2008 because it was "never designed to be a permanent move." S3's DT, p. 138. S3 testified that Complainant told him that she did not want to work in Drug Testing, and he had the impression that she could not collect urine because it could affect her immune system as a result of chemotherapy. S3 testified that he told Complainant about the possibility of working in the Passport Office4 as a Passport Specialist. S3 further testified that the Office of International Affairs would pay for half of the cost of the Passport Specialist position, and his office would absorb the rest of the cost. He stated that in this position Complainant would have been responsible for taking requests for passports and acquiring new passports. S3 further testified that while Complainant was in the Drug Testing Office, the drug-testing function of her position was temporarily removed and she was given clerical tasks. S3 stated that the option of being reassigned to the Passport Office was presented to Complainant after HR and management confirmed that this was possible, and Complainant gave the impression that she wanted the reassignment. S3 further testified that preliminary actions were taken to move Complainant to the Passport Office, but the head of International Affairs did not accept Complainant for the position because Complainant "had problems showing up for work and attendance problems." S3's DT, p. 229. "When she [International Affairs Chief] found out that [Complainant's reassignment to Passport Office], she came down to my office and specifically said she refused to have [Complainant] in that position," S3 testified. S3's DT, p. 230. S3 stated that the Passport Specialist position was later advertised and filled by an employee from the facilities department. S3 also testified that he was the one who proposed making Complainant serve a probationary period in the Passport Office reassignment, which HR later stated was inaccurate. S3 further testified that in January or February 2008, the Agency offered Complainant a position in the Solutions Coordination Office (SCO) as a reasonable accommodation in exchange for her withdrawing her EEO complaint, but the EEO office informed him that Complainant declined the offer. S3's DT, pp. 262, 272. The BMO Chief testified that she became aware that Complainant had breast cancer around October 2007, when Complainant was detailed to her office. The BMO Chief further testified that Complainant was undergoing chemotherapy while she worked in BMO. The BMO Chief further testified that while working for her, Complainant disclosed that her arm was swollen and that she had concerns about her knees. The BMO Chief testified that Complainant was detailed to her office because she had alleged a hostile work environment and had disclosed medical issues to S3. With regard to a hostile work environment, the BMO Chief testified that Complainant alleged that the Drug Testing Office had been insensitive to her medical condition and did not approve her leave share requests. The BMO Chief further testified that Complainant told her that S1 held her to standards to which he did not hold other employees, especially with regard to arrival times, lunch, and attendance. The BMO Chief stated that during that time, Complainant submitted a note that requested leave share for chemotherapy treatments, but the note did not specify the duration of the need for leave share or the prognosis. The BMO Chief testified that S2 was concerned that Complainant did not have the appropriate level of documentation in order for him to approve her leave share requests, and S2 said that he would not approve Complainant's leave share request until she brought him more documentation. The BMO Chief also testified that S2 told her that he was unhappy with the amount of leave Complainant took because it affected his ability to do his operation. The BMO Chief further testified that Complainant submitted documentation to support her leave share request, and on November 7, 2007, the BMO Chief approved Complainant's request. Additionally, the BMO Chief testified that management discussed reassigning Complainant to the Passport Office because she could not work with bodily fluids, and there was a vacancy in that office. The BMO Chief testified that the International Affairs Chief did not allow Complainant to come to the Passport Office because they "needed someone that would be there every day," and she had concerns about Complainant's attendance. BMO Chief's DT, p. 165. The BMO Chief further testified that management offered Complainant reassignment to a GS-11 Administrative Assistant position in the Solutions Coordination Office (SCO) in Herndon, Virginia, in exchange for her withdrawal of her EEO complaint. The BMO Chief stated that Complainant declined this GS-11 reassignment offer, and she was not aware of any other efforts by the Agency to reassign Complainant. Final Agency Decision On May 27, 2011, Complainant withdrew her hearing request, and the AJ remanded Complainant's complaint to the Agency. Consequently, 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 her to discrimination as alleged. Specifically, the decision found that Complainant did not establish that she is an individual with a disability. The decision further stated that Complainant did not establish a prima facie case of reprisal because she did not show a nexus between her previous EEO activity and the adverse actions in this case. The decision also found that management articulated legitimate, non-discriminatory reasons for its actions, but Complainant did not show that these reasons were pretext for unlawful discrimination. The decision further found that the alleged actions were not severe or pervasive enough to constitute a hostile work environment. Finally, the decision concluded that although the Rehabilitation Act prohibits unauthorized disclosure of medical information to third parties, there was no evidence of unauthorized disclosure in this case. CONTENTIONS ON APPEAL On appeal, Complainant argues that the final decision erred in finding no discrimination. Complainant maintains that she is an individual with a disability because she has been diagnosed with cancer and experiences leg pain, neuropathy, decreased immune system functioning, and "scraping, shooting pain" in the left side of her head. Complainant further maintains that the physician's December 2007 letter to S1 containing her medical restrictions was a request for a reasonable accommodation, and her physician specifically said Complainant was requesting a reasonable accommodation. Complainant further notes that in a letter dated July 1, 2008, an orthopedic surgeon informed the Agency that Complainant was restricted from standing more than 10 minutes per hour in an eight-hour workday, could not work for long periods of time, and needed to be given more days to meet any deadline because of Carpal Tunnel Syndrome. Complainant also notes that on September 30, 2008, a physician informed the Agency that Complainant had neuropathy related to chemotherapy. Complainant maintains that she was denied a reasonable accommodation when the Agency did not give her additional time to input data into the invoice database, she was denied use of the Agency's leave share program, she was denied additional time to complete assignments, and management did not find a reassignment for her until after she filed an EEO claim. Complainant also reiterates her claim that when she went to Human Resources to ask questions, her third-line supervisor said, "I bust my ass for you, and this is what you do behind my back." Complainant further reiterates her claim that management violated the Rehabilitation Act when it failed to maintain Complainant's protected medical information in a file separate from other non-protected employment information. The Agency does not present any arguments on appeal. 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 (EEO MD-110), at Chap. 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"). ANALYSIS AND FINDINGS Order to Show Cause As a preliminary matter, we note that in a letter dated November 13, 2012, the Commission notified the Agency that Complainant had filed the instant appeal and that the Agency must submit the complaint file to the Commission within 30 calendar days of receiving the letter. In an email dated May 19, 2015, the Commission notified the Agency's "iComplaints Administrator" that the record submitted by the Agency did not contain any depositions, the pre-hearing report, or discovery documents, including the depositions of Complainant, S2, S3, and the Team Leader. On several occasions thereafter, the Commission notified the Agency that it was still missing the deposition transcripts, the pre-hearing report, and exhibits. For example, in an email dated November 19, 2015, the Commission notified the Agency that it still had not submitted "hearing documents prior to the withdrawal [of the hearing request] to include any motions/pleadings," depositions, and additional documents used to issue the final Agency decision. On or about February 2, 2016, the Agency provided the Commission with a copy of the transcript of Complainant's deposition, but the Agency still had not provided the Commission with the remaining deposition transcripts and exhibits. On March 9, 2016, the Commission issued a notice to show cause why sanctions should not be issued against the Agency for failing to submit the complete complaint file. The Commission gave the Agency 20 days to respond to its notice. On March 31, 2016, the Agency responded to the notice to show cause and submitted the missing documents. In its response, the Agency maintains that sanctions should not be imposed because its Solicitor's Office was not aware that the Commission requested documentation until November 2015. The Agency further maintains that sanctions should not be imposed because the Commission originally informed it that Complainant's deposition transcript was the only missing item, and the Agency did not know that other documentation was missing until February 2016. Additionally, the Agency maintains that it took a while to obtain the missing documentation because it had been stored in an archives facility. Upon review, we note that agencies must submit the complaint file to the Commission within 30 days of initial notification that a complainant has filed an appeal or within 30 days of submission of an Agency appeal. 29 C.F.R. § 1614.403(e). This duty requires the Agency to submit the complete record, including any deposition transcripts, prehearing reports, exhibits, or documents produced in the case. This was particularly important in the instant case as, while the complaint was before the AJ, Complainant had filed a motion to amend her complaint to include the matters identified above as claims 3, 4, and 5. Accordingly, the only evidence which would have been on record with respect to these 3 claims would be contained in the depositions and exhibits, and not in the report of investigation produced prior to the request for the hearing. The withdrawal of Complainant's request for a hearing did not extinguish the Agency's duty to provide the entirety of all evidence and documentation produced at the hearing stage. In this case, the Agency was clearly notified on May 19, 2015, that the record did not contain any depositions, discovery documents, or pre-hearing reports. The request for the missing documentation was originally made to the Agency's iComplaints Administrator, which was reasonable in light of the fact that the iComplaints Administrator affirmed that she was able to respond to the request. From this point, the Agency was on notice that it had not submitted the complete complaint file necessary to adjudicate the appeal to the Commission. Nevertheless, because the Agency ultimately submitted the missing documentation, and the missing documentation was remotely stored in archives, we determine that sanctions are not appropriate in this case. However, the Agency is strongly reminded that failure to submit to the Commission the complete record, within the applicable time frame, may result in sanctions against the Agency in future cases. In particular, the Agency should especially focus on developing procedures that allow it to promptly locate and submit missing documents. Further, the Agency should take particular measures to ensure that it is accounting for and submitting to the Commission all documents from the hearing stage, whether an AJ has issued a decision or remanded the case to the Agency for a decision on the record. Disability Discrimination Complainant alleges that the Agency subjected her to discrimination on the bases of disability and reprisal. Consequently, at the onset of our analysis, we determine whether Complainant is a qualified individual with a disability entitled to coverage under the Rehabilitation Act. Individual with a Disability We note that the events in this case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which expanded the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2007 and 2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability. Complainant bears the burden of demonstrating that she is an individual with a disability. Ceralde v. U.S. Postal Serv., EEOC Appeal No. 07A00038 (Aug. 2, 2001). Complainant must demonstrate that she (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). An impairment is substantially limiting when an individual is unable to perform a major life activity that the average person in the general population can perform or is significantly restricted as to the condition, manner, or duration under which she can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1). Major life activities include walking. 29 C.F.R. § 1630.2(i). Upon review, we note that it is undisputed that Complainant has been diagnosed with breast cancer and has undergone surgery and extensive chemotherapy for a prolonged period of time. Because of her condition, Complainant experienced swelling and degenerative arthritis in her knees; peripheral neuropathy; numbness, tingling, and burning sensations in her lower extremities; and Carpal Tunnel Syndrome. Medical documentation also reveals that Complainant's condition caused her to experience significant pain when she walked and swelling in her ankles and feet. Further, Complainant used a scooter for mobility, and in December 2007, was restricted from standing or walking for more than 10 minutes per hour. Consequently, we conclude that Complainant is substantially limited in the major life activity of walking and, therefore, the Agency erred when it found that she is not an individual with a disability. See Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. Part 1630 (Interpretive Guidance), 1630.2(i) (walking is a major life activity) and 1630.2(j) (an individual is substantially limited if she is significantly restricted in her ability to perform a major life activity as compared to the average person in the general population); see also Latarsha A. v. Federal Energy Regulatory Commission, EEOC Appeal No. 0120122315 (Mar. 15, 2016) (use of cane reflected that complainant was substantially limited in the major life activity of walking). Lee v. Dep't of Veterans Affairs, EEOC Appeal No. 07A00007 (July 13, 2000) (complainant who provided evidence that her "ability to ambulate" was limited was found to be substantially limited in the major life activity of walking and therefore an individual with a disability within the meaning of the Rehabilitation Act). Qualified The term "qualified individual with a disability," with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term "position" is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002). Therefore, in determining whether an employee is a qualified individual with a disability, an agency must look beyond the position which the employee presently encumbers. Id. As explained in detail below, we are persuaded that Complainant was unable to perform the essential functions of her Drug Program Specialist position, with or without a reasonable accommodation. However, we find that the record reveals that there were two vacant, funded positions that were available during the relevant time period, an SCO position and a Passport Office position. The record further reveals that the Agency deemed Complainant qualified for both positions. Consequently, we find that Complainant was a qualified individual. Reasonable Accommodations: Claims 1 and 2 Claims 1 and 2 are most appropriately analyzed as reasonable accommodation claims.5 Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Here, on September 14, 2007, Complainant submitted a letter from her physician that stated that Complainant had been on sick leave on September 4, 5, 6, 12, 13, and 14, 2007, and suffered the loss of her mother on September 4, 2007. The letter further stated that Complainant had been receiving chemotherapy treatments and needed to be on leave intermittently to receive more treatments. Additionally, on or about September 17, 2007, Complainant requested that her absences on September 4, 5, 6, 12, 13, and 14, 2007, be applied towards the Leave Share Program. Further, in a letter dated September 24, 2007, Complainant's physician notified the Agency that until December 2007, Complainant needed to attend chemotherapy appointments every three weeks; needed to combine her breaks so that she could have an hour for lunch; was restricted from traveling while undergoing chemotherapy; could not handle or collect urine specimens; and could not be in the presence of any person being drug-tested or who handled other people's bodily fluids. Upon review, we note that the aforementioned letters were requests for reasonable accommodation. After a thorough review of the record, we are persuaded that the Agency did not require Complainant to handle urine or to travel after it received notice of her medical restrictions. We are also persuaded that the Agency provided Complainant with the one-hour lunch she requested. Additionally, we are persuaded that the Agency granted Complainant additional time to complete invoice assignments. In so finding, while Complainant denies that she was given additional time to complete invoices, she did not provide any specific instances wherein she was denied leeway to complete assignments because of her medical condition. Additionally, Complainant requested reasonable accommodations in August and September 2007, when she asked the Agency to approve her for leave donated to the leave share program. We note that permitting the use of leave is a form of reasonable accommodation when necessitated by an employee's disability. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Types of Reasonable Accommodations Related to Job Performance - Leave (Oct. 17, 2002). Leave share is a program whereby paid leave can be granted after an employee has exhausted paid leave. As such, a request for leave share is a request for a reasonable accommodation. The record reflects that Complainant was initially approved to access leave share for absences related to cancer. When Complainant requested leave through leave share in August/September 2007, S2 advised Complainant to provide documentation from her physician showing that any leave taken was the result of cancer. We note that during the deposition, Complainant initially maintained that she did not recall S2 approving her for leave through leave share. However, when presented with a letter from S2 that approved her for the program, Complainant stated that she recalled S2 approved Complainant for leave share after she ultimately provided requested medical documentation that substantiated her request. Complainant's DT, p. 57. We note that the Agency's leave share policy specified that "donated leave may be used only for the purpose of the medical or family emergency for which the leave recipient was approved." ROI, Exhibit G-3. Additionally, the policy states that supervisors must ensure that employees only use donated leave for the specific purpose for which it was approved by requesting updated medical information from the employee at least every three months. ROI, Id. Hence, management was charged with ensuring that ongoing requests for leave share were related to the medical conditions for which leave share was approved. Complainant's initial request for leave share in August/September 2007 did not show how her request was linked to cancer. In these particular circumstances, the Agency's request for medical documentation linking her request for leave share to cancer was justified. In so finding, we note that Complainant's need for leave at that time was not obvious or self-verifying. As such, the Agency was entitled to ask Complainant for documentation that revealed how her leave share request was related to cancer. Complainant acknowledges that the Agency approved her leave share request shortly after she made her request and submitted the requested documentation.6 Therefore, we do not find that the Agency denied Complainant a reasonable accommodation with respect to leave share in 2007. On or about July 9, 2008, the Agency denied Complainant access to the leave share program on the basis that her Carpal Tunnel Syndrome and swollen knees were unrelated to cancer. However, we note that on or about July 1, 2008, Complainant submitted an "Orthopaedic Consultation Report" that stated that Complainant had breast cancer; had surgery on her breast, followed by extensive chemotherapy; experienced side effects because of the chemotherapy, including orthopedic issues such as significant fluid retention, swollen, painful knees, peripheral neuropathy, and numbness, tingling, and burning sensations in her lower extremities; and Carpal Tunnel Syndrome. This documentation provided the Agency with adequate notice of the medical link between Complainant's breast cancer and Carpal Tunnel Syndrome and swollen knees. The Agency has not shown that approving Complainant for leave share in 2008 would have constituted an undue burden. Consequently, we find its denial of leave share in 2008 denied Complainant a reasonable accommodation.7 With regard to reassignment, we note that reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of her current position; or (2) all other reasonable accommodations would impose an undue hardship. Enforcement Guidance on Reasonable Accommodation, EEOC No. 915.002 at Question 24 (Oct. 17, 2002). To establish entitlement to reassignment, a Complainant must show that a vacant, funded position existed during the relevant time period or was likely to open up. Id.; see also Shimmin v. Dep't of Homeland Security, EEOC Appeal No. 0120072428 (June 4, 2009) (screener who could not perform duties of position and requested reassignment not qualified under the Rehabilitation Act because he failed to identify a vacant, funded position that met his medical restrictions during relevant time period). Complainant can establish that vacant, funded positions existed by (1) producing evidence of particular vacancies; or (2) showing that she was qualified to perform a job or jobs which existed at the agency, and there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002). In this case, Complainant's physician restricted her from not only handling and collecting urine specimens, but also from being in the presence of any client who was being drug-tested in the office until December 2007. Although medical documentation in early 2008 does not reflect any restrictions on Complainant handling urine, subsequent documentation reflects that Complainant was restricted from entering the Drug Testing Office because of the "possibility of contaminants" at that office. Witness testimony and documentary evidence reflect that handling urine specimens and interaction with drug-testing customers was an integral, core part of Complainant's Drug Program Specialist position in the Drug Testing Office. As such, we find that handling or exposure to urine samples was an essential function of Complainant's Drug-Testing position. Because Complainant was restricted from performing this essential function, we find that Complainant was not qualified with respect to the Drug Program Specialist position, with or without an accommodation. Thus, as the accommodation of last resort, the Agency had a duty to explore whether Complainant could be reassigned to another position. The record reveals that there was a vacant, funded SCO Administrative Assistant position to which Complainant was qualified to be reassigned, but the Agency did not reassign Complainant to this position because she would not withdraw her EEO complaint in exchange for this reassignment. However, we note that the Agency's willingness to provide a reasonable accommodation should not be conditioned on Complainant withdrawing her EEO complaint. The Agency's duty to provide reasonable accommodations is independent of EEO negotiations. Reassignment was the only viable long-term accommodation for Complainant in this case, and the Agency could have reassigned her to the SCO Administration Assistant position, but failed to do so.8 As such, we find that the Agency failed to provide Complainant with a reasonable accommodation for her disability when it did not reassign her. Overall, we do not find that the Agency made prompt "good faith efforts" to reasonably accommodate Complainant through reassignment. Therefore, the Agency is not insulated from providing Complainant with an appropriate award for compensatory damages based on our findings that it violated the Rehabilitation Act. See Teshima v. U.S. Postal Serv., EEOC Appeal No. 01961997 (May 5, 1998). Claims 3 and 4: Disparate Treatment In claims 3 and 4, Complainant alleged that she was subjected to disparate treatment and reprisal. Complainant alleged that she received a letter entitled "Leave Usage" that threatened her with adverse action because of her disability and her request for reasonable accommodation, and she received a Performance Evaluation rating of "Minimally Successful" for the rating period February 5, 2008, through September 30, 2008. In order to prevail in a disparate treatment claim wherein there is no direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 802 n. 13. For instance, to establish a prima facie case of reprisal, a complainant must show that (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). With respect to disability discrimination, we find that Complainant failed to establish a prima facie case of disparate treatment on this basis because she did not show that similarly-situated employees not within her protected class were treated more favorably with respect to claims 3 and 4, nor did she provide any other evidence from which an inference of disability discrimination could be raised. Regarding reprisal, we note that requesting a reasonable accommodation is protected EEO activity. In this case, we find that Complainant previously engaged in EEO activity when she requested numerous reasonable accommodations throughout the relevant time period. See EEOC Compliance Manual, Section 8, "Retaliation" (May 20, 1998), at 8-6. It is clear that the Agency officials involved in claims 3 and 4 were aware of her requests for reasonable accommodations, and that these matters occurred during the same time period when Complainant was seeking these accommodations. As such, there is a close nexus between Complainant's previous EEO activity and the issuance of the leave usage letter and 2008 performance evaluation. Further, claims 3 and 4 involve adverse actions that are reasonably likely to deter EEO activity. Consequently, we find that Complainant established a prima facie case of reprisal for claims 3 and 4. We further find that the Agency articulated legitimate, non-discriminatory reasons for its actions. Specifically, regarding claim 3, the Agency stated that it issued Complainant a "Leave Usage" letter on July 9, 2008, because her recent leave share requests were inconsistent with the approved parameters of the program, and because of the amount of leave she had taken in the past few years. Upon review, we note that Complainant's request for leave share in fact was within the parameters of the leave share program, as discussed above. Documentation from Complainant's physician confirmed that her leave share request was indeed related to cancer. As such, Complainant had a valid reason to ask for this type of reasonable accommodation. Further, the Agency issued the leave usage letter within a few days of her request for leave through leave share, which raises a strong inference of retaliatory motive. While Complainant used a large amount of leave during the relevant time period, this was a long-term situation that did not suddenly develop in July 2008. As such, we find it highly suspicious that the letter coincided with Complainant's request for reasonable accommodation through leave share. We are persuaded that S2 issued Complainant the leave usage letter because of a retaliatory motive. Thus, we find that Complainant proved reprisal with respect to claim 3. Regarding claim 4, management stated that Complainant received a minimally acceptable rating in 2008 because she made seven coding errors and did not complete assignments in a timely manner, even with the allowance for additional time. Upon review, we find that Complainant failed to prove that the Agency's legitimate, non-discriminatory explanation was pretext for unlawful discrimination. Thus, we affirm the Agency's finding of no discrimination with respect to claim 4. Claim 5: Maintaining Employee Medical Information Under the Rehabilitation Act, information "regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record." 29 C.F.R. § 1630.14(c)(1); see also 42 U.S.C. § 12112(d). By its very terms, this requirement applies to medical information obtained from "any employee" and is not limited to individuals with disabilities. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000). The Commission has previously held that an agency's failure to maintain a complainant's medical information in a separate medical file violates the Rehabilitation Act and constitutes disability discrimination. See Mayo v. Dep't of Justice, EEOC Appeal No. 0720120004 (Oct. 24, 2012) (medical information was placed in a non-medical adverse action file in the Human Resources Department), request for reconsideration denied, EEOC Request No. 0520130125 (Apr. 25, 2014); Higgins v. Dep't of the Air Force, EEOC Appeal No. 01A13571 (May 27, 2003) (medical information was placed in a non-medical work file maintained by employee's supervisor); Brunnell v. U.S. Postal Serv., EEOC Appeal No. 07A10009 (July 5, 2001) (medical information was placed in the employee's personnel file). S2 acknowledged that he placed documentation containing Complainant's medical condition in a file that contained other documents, such as emails on Complainant's work history, her performance plan, and awards and training certificates. The Team Leader stated that she placed Complainant's medical documentation in a folder in her office that was locked in a file cabinet. Team Leader's DT, p. 31. The Team Leader also stated that many of the medical documents she maintains in the file cabinet pertain to Complainant's diagnosis and chemotherapy treatments. The Team Leader further stated that the folder also contained emails regarding Complainant's time and attendance, assignments, and performance, and Complainant was the only employee for whom she maintained medical documentation in the locked file cabinet. Id. at p. 33. Upon review, we find that the actions of S2 and the Team Leader violated the Rehabilitation Act. Contrary to the Agency's final decision, improperly filing employees' medical information violates the Rehabilitation Act, even if the medical information was not disclosed to third parties. Consequently, we find that the Agency improperly found that it did not violate the Rehabilitation Act with respect to its handling of Complainant's medical information. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding that Complainant failed to prove that she was subjected to unlawful discrimination with respect to claim 4. We REVERSE the Agency's finding that Complainant did not prove violations of the Rehabilitation Act with respect to claims 1, 2, 3, and 5, and REMAND this matter to the Agency for further processing consistent with this decision and the ORDER below. ORDER The Agency is ORDERED to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision becomes final, unless otherwise stated: 1. The Agency shall provide Complainant with a reasonable accommodation by offering her the pertinent GS-11 SCO Administrative Assistant position, or a subsequently equivalent position, even if Complainant is not currently employed by the Agency. Complainant has fifteen (15) calendar days to accept or decline the Agency's offer. Upon acceptance, the Agency shall engage in the interactive process with Complainant to determine what accommodations may be necessary and effective, if Complainant should require a reasonable accommodation. If Complainant declines the Agency's offer, the date of her declination shall be the end date for any back pay due Complainant. 2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant since January 10, 2008, pursuant to 29 C.F.R. §1614.501, no later than sixty (60) calendar days after the date this decision becomes final. Further, the Agency shall pay Complainant back pay with interest for any unpaid status (AWOL or LWOP) she incurred from July 1, 2008, until December 31, 2008, because of cancer or its related medical conditions. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency, including any specific evidence supporting claims that she took unpaid leave on particular dates because of cance or its related medical conditions. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. Complainant has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, Complainant shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainant shall then be compensated. 4. The Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford her an opportunity to establish a causal relationship between the Agency's retaliation/ failure to provide a reasonable accommodation and her pecuniary or non-pecuniary losses, if any. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages, pursuant to 29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 5. The Agency shall expunge all documentation pertaining to the leave usage letter issued in July 2008 from all Agency files. 6. The Agency shall remove any medical information about Complainant from any file that is not exclusively dedicated to containing Complainant's medical information. The Agency shall henceforth properly keep any medical documentation regarding Complainant's medical information in separate files that are stored in a secure manner that ensures medical confidentiality. 7. The Agency shall provide eight (8) hours of in-person EEO training to S1, S2, S3, the BMO Chief, and the Team Leader regarding their responsibilities under EEO laws, particularly with respect to obligations to avoid retaliation, to provide reasonable accommodations, and to properly maintain medical information under the Rehabilitation Act. 8. The Agency shall consider taking appropriate disciplinary action against S1, S2, S3, and the BMO Chief. 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 S1, S2, S3, and/or the BMO Chief have left the Agency's employ, the Agency shall furnish documentation of the individuals' departure date. 9. The Agency shall pay Complainant proven attorney's fees and costs in accordance with the Order below. 10. The Agency shall post a notice of this finding of discrimination in accordance with the Order below. 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 (G0914) The Agency is ordered to post at its Washington, D.C., facilities copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 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)), 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 (M0815) 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 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, 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 (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 May 13, 2016 Date 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. 2 S1 testified that the other employee does not travel because she is "the primary representative for a program coordinator for the Bureau of Indian Affairs that pays her salary." S1's DT, p. 135. 3 The Team Leader testified that this initial information included the employee's name, identification number, the date and place of the collection, and the specimen identification number. 4 The Passport Office is within the Security Office. 5 In so finding, we do not find that these matters constitute a hostile work environment. 6 We note that the record reflects that S1 initially disapproved Complainant for leave share for the date that her mother died. However, the record indicates that S1 subsequently approved leave share for this date after Complainant submitted documentation from her physician indicating that Complainant was ill on the date her mother died. 7 It is unclear from the record how long Complainant needed leave share because of cancer-related Carpal Tunnel Syndrome and swollen knees. In light of this uncertainty, we find that it is reasonable to conclude that Complainant needed leave for these specific conditions for the remainder of 2008. Thus, we find that any LWOP taken because of the denial of access to leave share should be restored to Complainant from July 1, 2008, until December 31, 2008. 8 In so finding, we note that the fact that Complainant declined the SCO position within the context of EEO settlement negotiations is distinct from circumstances wherein complainants decline reassignments outside of that context. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120130297 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120130297