U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julius C.,1 Complainant, v. Lisa S. Disbrow, Acting Secretary, Department of the Air Force, Agency. Appeal No. 0120151295 Agency No. 5R1S14001 DECISION Complainant timely filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission MODIFIES the Agency's final decision. ISSUES PRESENTED The issues presented on appeal are: (1) whether Complainant established that he was denied reasonable accommodation for his disability; and (2) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the basis of reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked in a temporary detail as a Materials Handler Supervisor, WS-06, at the Agency's Materiel Management Flight, 45th Logistics Readiness Squadron (45 LRS) on Patrick Air Force Base (AFB), Florida.2 Complainant was initially hired with the Agency on August 15, 2011, as an Equipment Management Supervisor primarily assigned to work in Building No. 821, identified as the Customer Service Office. Report of Investigation (ROI), at 302.3 In March 2013, Complainant was involuntarily detailed to the position of Materials Handler Supervisor and reassigned to work in the Warehouse Building No. 822, after the incumbent resigned. Id. According to Complainant, his job duties as a Materials Handler Supervisor included managing warehouses with items such as batteries, weapons, mobility bags, aircraft parts, general supplies, and hazardous material. Id. Complainant averred that shortly after he was assigned to work in Warehouse Building No. 822, he began to develop contact dermatitis on his skin, which was diagnosed by his Dermatologist in April 2013. Id. Complainant believed that his dermatitis developed as a result of working in Warehouse Building No. 822. Id. Complainant specifically averred that his "skin is sensitive to some unknown material/substance in the Warehouse [No. 822]." Id. at 300. Complainant averred that he developed a "severe rash on [his] skin, with itching and difficulty sleeping at night due to severe itching" and explained that he "always uncomfortable because his skin was constantly itching due to the rash." Id. at 302-303. Complainant further stated that the "severe contact reaction rash [made him] feel uncomfortable due to the constant severe itching and causes lack of sleep when [he] get[s] back home after work." Id. Complainant's first-level supervisor (S1) witnessed a rash on Complainant's forehead, and the Chief of Customer Support declared that she had observed Complainant "numerous times with a rash on his head, face, neck and arms where it was welted up and very red." Id. at 309, 339. On April 24, 2013, Complainant requested, as a reasonable accommodation, to be reassigned away from Warehouse Building No. 822 due to his rashes, and presented a doctor's note to his former supervisor at the time. Id. at 300, 308. Therein, Complainant's doctor simply wrote that Complainant could not work in "industrial areas due to medical reasons" due to contact with an unknown substance. Id. at 300. The Agency however denied Complainant's request for accommodation at the time, finding that Complainant's medical documentation was insufficient to support his request to be moved away from Warehouse Building No. 822. Id. at 308. In a memorandum responding to Complainant's request for reasonable accommodation dated May 2, 2013, Complainant's former supervisor wrote, in pertinent part, that Complainant underwent a physical on April 15, 2013, and was cleared for duty. Id. at 255. Complainant's former supervisor also wrote that no hazardous chemicals are stored in the warehouse where Complainant worked, and Complainant's medical documentation was insufficient. Id. As a result, Complainant continued to work in Building No 822 and continued to reportedly develop dermatitis rashes. Later that year on November 21, 2013, Complainant resubmitted his reasonable accommodation request. Id. at 250-53. Therein, Complainant requested a "change of work location out of Building 822 warehouse area/offices" because of his "ongoing severe allergic contact skin reaction dermatitis" that has been occurring since his detail on April 2013 that relocated him. Id. In support of this request, Complainant also provided management with a letter from his doctor stating, "Patient, [Complainant], is being exposed to an unknown substance or material at work that is causing a contact dermatitis. [Complainant] has been advised to switch the areas of work exposure as we are unable to determine what is causing the allergic reaction-skin rash-contact dermatitis." Id. On December 3, 2013, S1 did not approve Complainant's specific requested accommodation to be moved out of Warehouse Building No. 822. S1 explained that despite Complainant's doctor's letter, which was not specific as to the cause of the rash, she was not convinced that the source of Complainant's skin irritation was exposure from the warehouse. Id. at 308. S1 further explained that another employee told her that she observed that Complainant had rashes while he was working in building 821 before actually being reassigned to Warehouse Building No 822. Id. S1 also noted that she asked Complainant to provide additional medical documentation, and she offered to assist him by arranging an appointment with the medical clinic on base to clarify the source of his dermatitis, but Complainant declined the offer. S1 also stated that Complainant's primary responsibilities at the time were to oversee warehouse operations, and she did not think that moving Complainant to Building 821 would be feasible because the employees who Complainant supervised were located in Warehouse Building 822. Id. Nevertheless, as an alternative accommodation, S1 offered to relocate Complainant to the Mobility Supervisor's office, Room 101A of Warehouse Building 822. Id. at 285-87. S1 explained that Room 101A was "adjacent to the Building 822 main warehouse and has a door that can be closed to separate the area." Id. at 307, 283, 286, 288-289. S1 believed this accommodation could work for Complainant because it would provide Complainant "segregation from the main warehouse, but allow easy access to his personnel... so he could still oversee the operations and his employees." Id. S1 also explained that access to the office could be gained through a direct outside entrance, and therefore Complainant would not need to go through the warehouse for entering and leaving. Id. S1 also advised Complainant that an air filter would be provided for the office. Id. Complainant however refused this alternative accommodation, believing that he would still be exposed to the same unknown substance/material that caused his contact dermatitis, as he would still be required to enter Warehouse Building 822 to perform his duties. According to Complainant's second level supervisor (S2), management "needed Complainant to be in close proximity of the warehouse due to personnel issues and provide operational oversight as well to accomplish the mission." Id. at 314. S2 stated however that Complainant was additionally offered two more alternative accommodations from S1. Id. at 317. S2 averred that Complainant was offered the ability to work part of his day in a cubicle in the Compliance Office in Building 821 and the other half of his day in Warehouse Building 822. Id. S2 stated that Complainant was additionally given the option of working full-time in a cubicle in the Compliance Office in Building 821, while still retaining responsibility over the warehouse operations of Building 822. Id. S2 explained, however, that Complainant yet would still nevertheless be required to enter the Warehouse Building 822 at times when he or S1 had issues that required his presence. Id. Complainant however rejected both additional alternatives, as he would still have been required to enter the Warehouse Building 822 to effectively perform his duties. Id. No further accommodations were offered to Complainant thereafter. Id. Subsequently, on December 13, 2013, S1 commented on Complainant's Civilian Progress Review Worksheet, among other things, that he "sometimes demonstrated resistance to being an enthusiastic follower," and at times he seems "abrupt and curt when a decision with which he disagrees are made." Id. at 207. About a month later, on Thursday, January 16, 2014, S1 informed Complainant that the Second Lieutenant would be assigned to the position of Chief of Mobility. Complainant however felt that he deserved the position, asserting that he had previously been assured that he would be given it. Also, on Thursday, January 16, 2014, Complainant approached S1 and asked permission to take annual leave for the following day Friday, January 17, 2014. S1 however denied Complainant's request for leave, writing "Need supervision for supply . . . other supervisors on leave/RDO." Id. at 304. S1 specifically asserted that because the following Monday was a holiday, other employees had already submitted leave requests to take advantage of the long weekend. Id. at 311. According to S1, there were not enough supervisors available for office coverage for that Friday. Id. S1 however reportedly offered Complainant the option of taking annual leave for the following Tuesday instead. Id. Meanwhile, on December 6, 2013, Complainant filed an EEO complaint, as amended, alleging that the Agency discriminated against him on the bases of disability (dermatitis) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. On December 3, 2013, his reasonable accommodation request was approved by S1, but with alternative accommodations that were different from the original requested accommodation; 2. On or about December 12, 2013, S1 stated in his mid-term feedback" ... but sometimes you demonstrate resistance to being an enthusiastic follower" and "at times you seem abrupt and curt when decisions with which you disagree are made." When asked for examples, only one example was given, which was for the previous day; 3. On or about January 16, 2014, S1 informed Complainant that another employee would be the Chief of Mobility and would report to S1. Complainant had been previously told that he would be the Chief of Mobility; and 4. On or about January 16, 2014, S1 denied Complainant a one day leave request. Reasoning provided by S1 was "need supervision for supply . . . other supervisors on leave/Regular Day Off (RDO)." At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Initially, the Agency determined that Complainant established that he is a qualified individual with a disability, and therefore covered by the Rehabilitation Act. Notwithstanding, the Agency found that Complainant did not establish that he was denied a reasonable accommodation for his disability as alleged. The Agency specifically found that Complainant did not show a nexus between his disability and his requested accommodation, as the material/ substance that caused Complainant's dermatitis was unknown and unable to be identified. The Agency further noted that Complainant failed to rebut S1's statements that Complainant's skin condition was observed before he was detailed to the Warehouse Building 822. The Agency further found that although Complainant was not offered the accommodation of his choice, it nevertheless offered him several alternative accommodations that were effective. With respect to claims 2, 3, and 4, the Agency found that Complainant established a prima facie case of reprisal.4 But found that it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant did not establish were pretext for discrimination. CONTENTIONS ON APPEAL Complainant has not filed a brief on appeal. The Agency requests that we affirm its final decision, finding no discrimination. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (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 Reasonable Accommodation Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). The agency may choose among reasonable accommodations as long as the chosen accommodation is effective. An "effective" accommodation either removes a workplace barrier, thereby providing an individual with an equal opportunity to apply for a position, to perform the essential functions of a position, or to gain equal access to a benefit or privilege of employment. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a "qualified" individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See Enforcement Guidance on Reasonable Accommodation. An individual with a disability is "qualified" if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). "Essential functions" are the fundamental job duties of the employment position that the individual holds or desires. Id. § 1630.2(n). A request for a modification or change at work because of a medical condition is a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Q. 1. After receiving a request for reasonable accommodation, an agency "must make a reasonable effort to determine the appropriate accommodation." 29 C.F.R. pt. 1614. app. § 1630.9. Thus, "it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." 29 C.F.R. § 1630.2(o)(3); see also 29 C.F.R. pt. 1630 app. § 1630.9; Enforcement Guidance on Reasonable Accommodation at Q. 5. Reasonable accommodation includes such modifications or adjustments as job restructuring, the acquisition or modification of equipment or devices, and reassignment to a vacant position. 29 C.F.R. § 1630.2(o)(2)(ii). In general, reassignment is the reasonable accommodation of last resort and should be considered only when (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. pt. 1630 app. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation, "Reassignment." An agency should reassign the employee to a vacant position that is equivalent in terms of pay, status, and other related factors; if there are no vacant equivalent positions, then the agency should reassign the employee to a lower-level position that is closest to the current position. Id. The agency, however, may not use reassignment "to limit, segregate, or otherwise discriminate against employees with disabilities by forcing reassignments to undesirable positions or to designated offices or facilities." 29 C.F.R. pt. 1630 app. § 1630.2(n); see also EEOC Enforcement Guidance: Workers, Compensation and the ADA, EEOC Notice No. 915.002, at Q. 21 (employer may not unilaterally reassign an employee with a disability-related occupational injury to a different position without first assessing whether the employee can perform the essential functions of his or her current position with or without reasonable accommodation). An agency is in the best position to know which jobs are vacant or will become vacant within a reasonable time and, as part of the interactive process, should ask the employee about his or her qualifications and interests. Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). Because it possesses the relevant information, an agency is obligated to inform an employee about vacant positions for which the employee may be eligible as a reassignment. Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997) (federal employers are far better placed than employees to investigate in good faith the availability of vacant positions); see also Enforcement Guidance on Reasonable Accommodation at Q. 28. The employee should assist the agency in identifying vacancies to the extent that the employee has information about them. Further, if the agency is unsure whether the employee is qualified for a particular position, the agency can discuss with the employee his or her qualifications Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997) (once an employer has identified possible vacancies, an employee has a duty to identify which one he is capable of performing)); see also Enforcement Guidance on Reasonable Accommodation at Q. 28. We emphasize that a federal agency's obligation under the Rehabilitation Act to offer reassignment is not limited to vacancies within a particular department, facility, or geographical area. Instead, the extent of the agency's search for a vacant position is an issue of undue hardship. Enforcement Guidance on Reasonable Accommodation at Q. 27. Accordingly, absent undue hardship, the agency must conduct an agency-wide search for vacant, funded positions that the employee can perform with or without reasonable accommodation. In the instant case, the Agency does not contest that Complainant is a qualified individual with a disability, and therefore is covered under the Rehabilitation Act. We therefore turn to whether the Agency met its obligations under the Rehabilitation Act to provide him with an effective accommodation. Initially, we find the Agency erred in finding that Complainant did not establish a nexus between his disability and his requested accommodation. In so finding, we note that Complainant's doctor advised that Complainant "switch the areas of work exposure as we are unable to determine what is causing the allergic reaction-skin rash-contact dermatitis." ROI, at 253. Although the exact substance that was affecting his skin may have been unknown, the Agency did not rebut Complainant's affidavit that the warehouse where he was assigned contained batteries, weapons, aircraft parts and general supplies.5 In addition, the Chief of Customer Support declared that she had observed Complainant "numerous times with a rash on his head, face, neck and arms where it was welted up and very red." ROI, at 338-39. We note that S1, herself, also averred that she saw a rash on Complainant's forehead. Id. at 309. In addition, given the observations from coworkers and management officials that Complainant had rashes on his body, we find that the Agency ignored his first request for accommodation on April 24, 2013, when he submitted his first doctor's letter. The record reflects that S1 and other coworkers witnessed the rashes on Complainant's body during the period of time from April 2013 through December 2013, and beyond. Id. at 252. In addition, Complainant used approximately 70 hours of sick leave during this time period due to his condition after his request for accommodation was denied on April 24, 2013. Id. We note that the Agency asked Complainant to provide additional documentation, but Complainant allegedly did not do so until November 2013.6 Notwithstanding, we find that Complainant's April 24, 2013, documentation together with the observed rashes on his body made Complainant's need for accommodation obvious. We note that an agency cannot ask for documentation when: (1) the individual's disability and the need for reasonable accommodation are both obvious, or (2) the individual has already provided the agency with sufficient information to substantiate that she has a disability under the Rehabilitation Act and needs the reasonable accommodation requested. See Enforcement Guidance on Reasonable Accommodation. As a result, we find that the Agency was aware of Complainant's condition and his need for accommodation beginning on. April 24, 2013. In so finding, we note that the Chief of Customer Support in her affidavit specifically attested: Q: Do you believe Complainant was treated less favorable with respect the allegation at issue? A: Yes Q: If yes, when and describe what happened? A: [Complainant] provided doctor's notes from his physician and he was made to stay in the working area where he was having some type of allergic reaction or issue with something in his surroundings. Q: How was Complainant treated differently and when? A: By not moving [Complainant] out of the area he was working, he was treated as a normal worker without any type of medical condition and that was not the case. He had a medical condition per provided documentation. ROI, at 339-40. Although S1 may have engaged in an interactive process with Complainant beginning on December 3, 2012, the offered accommodations were clearly not effective. We note that S1 averred that the Logistics Manager saw that Complainant had rashes on his body before while Complainant worked in his previous position in Building 821, and that factored into her decision not to grant Complainant's request for accommodation. Id. at 308. However, other than S1's unsupported affidavit, there is no evidence to support that Complainant condition was the same while he previously worked in Building 821. In so finding, we note that the Logistics Manager was not asked by the Agency's EEO investigator for an affidavit to support S1's statement here. Based on the record, we find that Complainant clearly established a nexus between his disability and his requested accommodation beginning on April 24, 2012. Also, as noted above, beginning on December 3, 2012, S1 offered Complainant with three alternative accommodations. First, S1 offered to relocate Complainant to the Mobility Supervisor's office, Room 101A of Warehouse Building 822 with an air filter. Second, S1 alternatively offered Complainant with the ability to work part of his day in a cubicle in the Compliance Office in Building 821 and the other half of his day in Warehouse Building 822. Id. at 317. Lastly, S1 also offered Complainant with the option of working full-time in a cubicle in the Compliance Office in Building 821, while still retaining responsibility over the warehouse operations of Building 822. Id. However, as S2 averred, Complainant yet was still responsible for entering the warehouse at times when he or S1 had issues that required his presence. Id. Also, the materials and employees who Complainant supervised worked in Building 822, so it is clear that Complainant would have to continue to enter the warehouse to perform his duties to oversee operations there. As such, we disagree with the Agency, and find that the offered alternative offered accommodations were clearly not effective as they still would require Complainant to regularly enter the place, which he alleged aggravated and/or caused his dermatitis rashes. As Complainant could not be accommodated in his current position, we find that the Agency, absent undue hardship, was obligated to consider reassigning him to a different position without duties relating to Building Warehouse 822, consistent with the Commission's regulations noted above. The Agency did not do so. The burden now shifts to the Agency to provide case-specific evidence proving that providing reasonable accommodation would cause an undue hardship in the particular circumstances. A determination of undue hardship should be based on several factors, including: (1) the nature and cost of the accommodation needed; (2) the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; (3) the overall financial resources, size, number of employees, and type and location of facilities of the employer; (4) the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and (5) the impact of the accommodation on the operation of the facility. See Preston v. U.S. Postal Serv., EEOC Appeal No. 0120054230 (Aug. 9, 2007); Enforcement Guidance on Reasonable Accommodation. However, neither in its decision nor on appeal has the Agency submitted an argument that reassigning Complainant to a different position would have resulted in an undue hardship. Therefore, based on the record, we find that Complainant has established that he was denied reasonable accommodation for his disability as alleged, beginning on April 24, 2013. Disparate Treatment Claims 2, 3, and 4. To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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 Constr. 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, 441 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he 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). Here, the Agency found that Complainant established a prima case of reprisal, and therefore we shall turn to the Agency's legitimate, nondiscriminatory reasons. In addressing claim 2, the record reflects that S1 explained to Complainant that one of the reasons for her notations on her Civil Progress Review Worksheet was because Complainant had raised concerns concerning the "MICT (program for management checklists)" during a staff meeting on December 11, 2013.7 Id. at 303. S1 told Complainant that such staff meetings are just to pass out information. Id. S1 stated that "it is possible I used [the matter concerning the December 11, 2012, staff meeting] as a recent example of what I was trying to convey." Id. at 310. Regarding Claim 3, S1 explained that Complainant did not want to sit in the Mobility Office and the Second Lieutenant needed the technical expose because he was preparing for Logistic Readiness Officer's Training. Id. S1 explained, with regard to claim 4, that she denied Complainant's request for leave for Friday, January 17, 2014, because the following Monday was a holiday and other employees had already submitted leave requests to take advantage of the long weekend. Id. at 311. S1 therefore averred that she already received leave slips from all her other supply supervisors for that day. Id. S1 additionally averred that certain supervisors were already on their regularly scheduled day off for the Friday as well. Id. S1 added that in the past, subordinates had been allowed act for their supervisors, as long as a supply supervisor from another section was also on duty. S1 explained that in January 2013, S2 instructed that all sections were to have supervision unless liberal leave was approved. Id. Sl averred that she could "not think of a time that [she had] allowed all the supply supervisors to be off at the same time." Id. S2 explained that during the holidays, she had observed that there were no supervisors present in some sections but employees were present and working, so she informed her Flight Chiefs that she "expected a supervisor to be present at all times." Id. at 316. The burden is on Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext with respect to claim 2, Complainant contends that the feedback occurred just six days after he contacted the EEO office on December 5, 2013. Complainant maintains that S1 was aware by December 4, 2013, that he would contact the Agency's EEO office. Complainant further asserts that S1 took issue with him for raising concerns during the staff meeting on December 11, 2013, yet when others raised concerns with the same matter during that staff meeting, and a subsequent staff meeting on January 15, 2014, she had no issue with them doing so. In alleging pretext with respect to claim 3, Complainant asserted that one of the reasons S1 gave him for not moving him out of Building 822 was that she needed him to be Chief of Mobility. Complainant however stated that after he initiated his EEO complaint, he was no longer assigned the duties as Chief of Mobility. In addressing claim 4, Complainant asserts that in a January 14, 2014, staff meeting, the master leave calendar showed that he had projected leave for January 17, 2014. Complainant also asserted that only one other supervisor was scheduled to work that day. Complainant further maintained that non-supervisory subordinates were clearly allowed to act for their supervisors for leave. Complainant asserts that S1 allowed a subordinate employee to be an acting supervisor in his place while he was on leave approved leave for February 14, 2014. Notwithstanding Complainant's contentions, we find that he did not establish that the Agency's reasons were pretext for discrimination based on reprisal. In so finding, a review of Complainant's Civilian Progress Review Worksheet, reflects that it was outwardly positive, with S1 repeatedly complementing Complainant over his performance. S1 comments included, "[Complainant] helped implement a dramatic turnaround;" and also, "[Complainant] had to deal with a difficult personnel situation, but tackled the issue head on." ROI, at 207. S1 also wrote therein, "The teaming and forward progress [Complainant has] made should make [Complainant] especially proud." Id. We note that the progress review contains many more positive comments about Complainant's performance, and therefore we find that S1 was clearly not motivated by retaliatory animus here. With regard to claim 3, Complainant does not dispute that he specifically instructed S1 that he did not want to sit in the Mobility Supervisor's office, and we simply can find on evidence here that S1 was motivated by retaliatory animus. As for claim 4, Complainant does not dispute that there was only one other supervisor scheduled to be on duty for January 17, 2014, and also does not dispute that S1 offered him the option of taking the following Tuesday off instead. Complainant also does not dispute that S1 allowed him to take leave freely on the other days. Therefore, we find that Complainant has not established that the Agency reasons were pretext for reprisal. In so finding, we note that as Complainant did not request a hearing, we do not have the benefit of an AJ's credibility determinations after a hearing. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision. We AFFIRM the Agency's decision with respect to claims 2, 3 and 4. We REVERSE the Agency's final decision with respect to claim 1. ORDER The Agency is ORDERED undertake the following actions within one hundred and twenty (120) calendar days from the date this decision becomes final: 1. The Agency shall immediately identify all vacant funded positions or assignments with equivalent pay and status to Complainant's Materials Handler Supervisor position, and determine, with Complainant's input and per the requirements of the Rehabilitation Act, which of these positions he is able to perform, with or without accommodation. If a vacant funded position is identified, Complainant shall be placed in the position. 2. The Agency shall restore any leave used by Complainant due to the Agency's failure to provide him with an effective reasonable accommodation as of April 24, 2013. 3. The Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R § 1614.110.8 4. The Agency shall provide training to the responsible management officials identified regarding their responsibilities with respect to eliminating discrimination in the federal workplace. The training must emphasize the Agency's obligations under Section 501 of the Rehabilitation Act and in particular, its duties regarding reasonable accommodation. 5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). POSTING ORDER (G1016) The Agency is ordered to post at its Agency's Materiel Management Flight, 45th Logistics Readiness Squadron facility 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 was issued, 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. 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 6-16-2017 __________________ 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 The Agency also referred to Complainant's position as "Asset Management Supervisor." 3 The page numbers referenced herein are located at the bottom center of the page underlined in bold. 4 The Agency identifies claims 2, 3, and 4 as 2(a), 2(b), and 2(c), respectively. 5 In a memorandum dated May 2, 2013, to Complainant the Agency only noted that the warehouse where Complainant worked did not house any hazardous materials. ROI, at 255. The Agency however does not specifically address the actual contents of the Warehouse 822 in the memorandum or anywhere else in the record. We find that the Agency did not rebut Complainant's affidavit that the Warehouse contained batteries, weapons, general supplies, or chemicals that could have been hazardous. 6 However, the record contains a letter from Complainant's doctor dated May 28, 2013. ROI, at 253. 7 The acronym for MCIT has not been identified in the record. 8 We note that an agency that has failed to provide reasonable accommodation may avoid liability for compensatory damages if it can demonstrate that it acted in good faith. As explained in Guilbeaux v. U.S. Postal Serv., EEOC Appeal No. 0720050094 (Aug. 6, 2008), "a good faith effort can be demonstrated by proof that the agency, in consultation with the disabled individual, attempted to identify and make a reasonable accommodation [citation omitted]." Here, the Agency observed that Complainant had rashes on his body, but did not offer him an effective accommodation. Accordingly, we find that Compensatory damages are properly awarded here. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151295 16 0120151295