EEOC Appeal 2020000926

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rigoberto A., 1
Complainant,
v.
Andrew R. Wheeler,
Administrator,
Environmental Protection Agency,
Agency.
Request No. 2020000926
Appeal No. 0120180363
Agency Nos. 20120011R05, 20140048HQ, 20150101HQ and 20160039HQ
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180363 (September 17, 2019).
EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider
any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the
requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).
At the time of events giving rise to this complaint, Complainant worked as a Criminal Investigator,
GS-13, at the Agency’s Region 5, Criminal Investigation Division (CID), in Indianapolis, Indiana.
As a Criminal Investigator, Complainant was responsible for conducting investigations of
suspected 	criminal 	violations 	of 	environmental 	statutes 	administered 	by 	the 	Agency.
Complainant’s duties included, among others, testifying as a government witness in court and
assisting Department of Justice U.S. Attorney’s Offices (USAOs) in the preparation of cases for
trial.
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.

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Between 2011 and 2016, Complainant filed four separate EEO complaints (Agency No. 2012-
0011-R05, Agency No. 2014-0048-HQ, Agency No. 2015-0101-HQ and Agency No. 2016-0039-
HQ) cumulatively alleging that the Agency discriminated against him and subjected him to
harassment on the basis of reprisal for prior protected EEO activity when:
1. 	on November 14, 2011, he received a “minimally satisfactory” rating for his
2011 performance appraisal evaluation;
2. 	on or about November 15, 2011, he did not receive an award for his
involvement in a 2011 team investigation;
3. 	on January 26, 2012, he was given a Notice of Proposed Removal;
4. 	on or about January 10, 2014, the Director ordered him not to enter or approach
any CID office or partner (such as the United States Attorney) in Region 5;
5. 	on or about January 10, 2014, he was denied access to the government office
and equipment necessary for him to do productive work;
6. 	on or about January 24, 2014, he was provided a copy of an upgraded (revised)
Performance Appraisal and Recognition System report that had been signed by
the wrong parties and backdated to October 14, 2011;
7. 	on April 8, 2014, the Acting Assistant Special Agent-in-Charge directed him
not to participate in interviews or field work;
8. 	on April 9, 2014, he received a memorandum from the Director advising him
that each of the USAOs that he might work with had been informed of past
allegations;
9. 	since January 10, 2014, the Director’s restrictions of his duties prevented him
from conducting case work, denying him the equal opportunity to earn awards
for case work;
10. in August 2014, the Director provided him with a memorandum advising that
he may work in all but one of the judicial districts in his area of responsibility,
and left open the possibility that he may be restricted from other districts in the
future;
11. the Director failed to provide him with all of the communications he had about
him with the various USAOs and these communications are the basis for his
work restrictions;

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12. the Director failed to select him for a lateral transfer as a Law Enforcement
Instructor with the Federal Law Enforcement Center;
13. on or about February 7, 2014, the Head of the Legal Division, CID, provided to
USAOs his January 26, 2012 Notice of Proposed Removal and his personal
medical records;
14. since January 2014, he has been denied access to his work-related documents
and materials maintained at his prior work location in Indianapolis, Indiana;
and
15. on or about February 1, 2016, a number of documents related to Complainant
were uploaded to an unsecure Agency information technology server/drive.
The Agency separately processed each of Complainant’s four complaints and, subsequently,
informed Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ)
or an immediate final agency decision. Complainant requested the latter. The Agency issued a
consolidated final decision finding that Complainant failed to prove that the Agency subjected him
to discrimination as alleged. Subsequently, Complainant filed an appeal with this Commission,
which was docketed as EEOC Appeal No. 0120180363.
On September 27, 2019, the Commission issued a decision for Appeal No. 0120180363, finding
that the Agency engaged in unlawful reprisal with respect to claims 1, 3, 7-10, and 13 and violated
the 	Rehabilitation 	Act 	when 	it 	disclosed 	Complainant’s 	medical 	records 	to 	USAOs.
Notwithstanding, EEOC found that these actions were not severe or pervasive enough to create an
objectively hostile or abusive work environment and that Complainant did not establish that he
was subjected to a hostile work environment based on discriminatory motives. The Commission
reversed the Agency’s final decision with regard to claims 1, 3, 7-10, and 13 and affirmed the
Agency’s final decision with regard to claims 2, 4-6, 11-12, and 14-15. The Commission ordered
the Agency to conduct a supplemental investigation regarding Complainant’s entitlement to
compensatory damages due to the Agency’s disclosure of his confidential medical information;
provide a minimum of eight hours of in-person or interactive EEO training to the management
officials responsible for the actions found to be retaliatory or discriminatory; consider taking
disciplinary action against specific responsible management officials; and post a Notice of the
finding of discrimination. The instant request for reconsideration from Complainant followed.
In his request for reconsideration, Complainant continues to dispute arguments and evidence
presented by the Agency at the investigative and appellate stages and asserts the original appellate
decision should have concluded that the Agency’s actions created a hostile work environment.
However, Complainant raises arguments that were previously made or could have been made
during the original appeal. We emphasize that a request for reconsideration is not a second appeal
to the Commission. See EEO MD-110, Ch. 9, § VII.A.

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Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision
involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact
on the policies, practices, or operations of the Agency. Complainant has not done so here.
After reviewing the previous decision and the entire record, the Commission finds that
Complainant’s request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision
of the Commission to deny the request. The decision in EEOC Appeal No. 0120180363 remains
the Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request.
We do note, however, that the Agency has asked for clarification regarding the Commission’s
Order in EEOC Appeal No. 0120180363. Specifically, as to paragraph (1), the Agency asks for
us to clarify the timeline for the supplemental investigation for compensatory damages and the
corresponding final decision, as well as whether the Order timeline is based on calendar or business
days. In response to the Agency’s reconsideration inquiry, we have clarified the Order below.
ORDER
The Agency is ORDERED to take the following remedial actions:
1. 	Within 120 calendar days of the date this decision is issued, the Agency shall
conduct a supplemental investigation to determine whether Complainant is
entitled to compensatory damages as a result of the Agency’s disclosure of his
confidential medical information. The Agency shall afford Complainant an
opportunity to establish a causal relationship between the Agency’s violation
of 	the 	Rehabilitation 	Act 	and 	any 	pecuniary 	or 	non-pecuniary 	losses.
Complainant shall cooperate in the Agency’s efforts to compute the amount of
compensatory damages he may be entitled to and shall provide all relevant
information requested by the Agency. The Agency shall issue a new Agency
decision determining Complainant’s entitlement to compensatory damages
within 60 calendar days after completion of the supplemental investigation.
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 below.
2. 	Within 120 calendar days of the date this decision is issued, the Agency shall
provide a minimum of eight hours of in-person or interactive EEO training to
the management officials responsible for issuing Complainant his 2011
Performance Appraisal and the Notice of Proposed Removal. The Agency shall
also 	provide 	such 	training 	to 	all 	management 	officials 	and 	attorneys
responsible for disclosing Complainant’s Notice of Removal/Suspension and
confidential medical information to the USAOs. The training shall have a
special emphasis on these employees’ responsibilities with respect to Title VII

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and the Rehabilitation Act, the requirement that medical information be kept
confidential, and the prohibition against reprisal.
3. 	Within 120 calendar days of the date this decision is issued, the Agency shall
consider taking disciplinary action against the management officials and
attorneys responsible for issuing Complainant his 2011 Performance Appraisal
and the Proposed Notice of Removal, and for disclosing his discipline and
confidential medical information to the USAOs. The Agency shall report its
decision to the Commission, and, 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.
POSTING ORDER (G0617)
The Agency is ordered to post at its Criminal Investigation Divisions in Indianapolis, Indiana and
in Philadelphia, Pennsylvania 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 as directed in the paragraph entitled "Implementation of
the Commission's Decision," within 10 calendar days of the expiration of the posting period. The
report must be in digital format and must be submitted via the Federal Sector EEO Portal
(FedSEP). 	See 29 C.F.R. § 1614.403(g).
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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).

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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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. 	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 filed your appeal with the
Commission. 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. 	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
September 3, 2020
Date