EEOC Appeal No. 0120140365
08-29-2016
Yvette H. v. Dep't of Def.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Yvette H.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120140365
Agency No. DECA-00206-2010
DECISION
On October 21, 2013, Complainant filed an appeal from the Agency's September 18, 2013, 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, we MODIFY the Agency's final decision.
ISSUES PRESENTED
The issues presented are whether Complainant established that the Agency: (1) denied her a reasonable accommodation when it did not provide her with a 10-minute sit down break for every hour she worked; (2) denied her a reasonable accommodation when it did not provide her with a more frequent restroom breaks; and (3) subjected her to hostile work environment harassment when it told her "If you can't stand - go home," asked her "Did you forget your Depends?," and watched her for an entire hour while she worked.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales Store Checker, GS-2091-03, at the Agency's Tinker Air Force Base Commissary in Oklahoma City, Oklahoma. Complainant's first-level supervisor was the Supervisory Store Associate (S1). Complainant's second-level supervisor was the Store Administrator (S2).
On January 19, 2006, Complainant sustained a work-related injury. Subsequently, Complainant filed a claim with the U.S. Department of Labor's Office of Workers' Compensation Programs (OWCP). Id. On February 14, 2008, the Occupational Medicine Flight (OMF) prepared a "Chronological Record of Medical Care" indicating that Complainant had the following medical conditions: bursitis subacromial, bulging intervertebral disc cervical, feelings of urinary urgency, intervertebral disc degeneration, tendonitis rotator cuff, joint pain localized in the shoulder, and right shoulder strain. On August 5, 2008, OWCP notified Complainant that it had accepted her claim for carpal tunnel syndrome and shoulder pain.
On November 18, 2008, S1 offered Complainant a permanent modified light duty Sales Store Checker position. Specifically, S1 stated that the offer was in accordance with OWCP guidance and would accommodate the work restrictions (no lifting, bending, squatting, climbing, kneeling, or twisting; pushing/pulling up to 20 pounds) indicated in her medical documentation dated October 28, 2008. In addition, S1 stated that the new duties would include checking identification at the self-checkout counters (SCO), processing small orders at the SCO, helping patrons process orders at the SCO, and sorting labels and putting on plastics prior to process changes. On November 23, 2008, Complainant accepted the permanent modified light duty position.
Complainant stated that she had other work restrictions: (a) a 10-minute sit down break for every hour she worked; and (b) more frequent restroom breaks. Complainant stated that she provided S1 with medical documentation, but he ignored her work restrictions.
Regarding (a), the record contains medical documentation dated November 12, 2008 indicating that Complainant could return to work on November 13 with the following restriction: "Patient may return to work. She is in need of a sit-down break for 10 minutes, for every hour she works." Complainant averred that: she needed to rest her arms and legs because of her degenerative disc disease and arthritis; she provided S1 and OMF with medical documentation; S1 denied her verbal request for a sit down break; on several occasions,2 S1 denied her verbal request for a stool and told her, "If you can't stand up - go home;" and she requested a stool because it seemed more efficient to sit down in her work area rather than have to leave every hour to go sit down in the break room. S1 averred that: he did not remember if Complainant provided him with medical documentation; he did not remember if Complainant verbally requested a sit down break or what action he took in response; he would have denied Complainant's request for a stool because it was against Agency policy; and he did not recall telling her, "If you can't stand up - go home." According to Agency policy (DeCAM 30-17.1), a stool was not allowed in the cashier work area unless it was required as a reasonable accommodation. Complainant's coworker (C1), another Sales Store Checker supervised by S1, averred that the Agency had provided her with a stool since 2003 or 2004 because of a knee condition.
Regarding (b), the record does not contain any medical documentation relating to the frequency of restroom breaks. Complainant averred that: she provided S1 with notes from three doctors documenting her need for more restroom breaks; she needed more frequent restroom breaks because of prescription medication she was taking; S1 would "drag his feet" at obtaining a replacement for her when she needed to a restroom break; on three occasions when she verbally requested a restroom break, S1 asked her, "Did you forget your Depends?"; and on each occasion, she asked S1 not to say things like that to her. S1 averred that: he did not recall Complainant providing him with any medical documentation about restroom breaks; he made a remark to Complainant about Depends on one occasion, but he meant it as a joke and did not know if she actually wore Depends; and after learning from the EEO Counselor that Complainant took the remark personally, he apologized to her.
On August 13, 2010, according to Complainant, S2 watched her for an entire hour while she worked at the SCO. Complainant averred that: she asked S2 several times if he needed anything or if she could help him, but he said no and continued watching her with his arms folded; she never saw S2 watch any other employee in such a manner; and S2's actions annoyed her, humiliated her in front of customers, and made it difficult for her to stay focused. S2 averred that: from time to time, he checked the customer line to make sure that the cashiers were providing appropriate customer service; he did not think he ever stood in one spot for an hour; and he never watched any employee for an extended amount of time.
EEO Complaint
On October 13, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability when:3
1. S1 did not provide her with a 10-minute sit down break for every hour she worked;
2. S1 did not provide her with more frequent restroom breaks;
3. On several occasions, S1 told her, "If you can't stand - go home;"
4. On three occasions, S1 asked her, "Did you forget your Depends?" and
5. On August 13, 2010, S2 watched her for an entire hour while she worked at the SCO.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before a U.S. Equal Employment Opportunity Commission Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a June 1, 2011, final decision pursuant to 29 C.F.R. � 1614.110(b), finding no discrimination. Subsequently, Complainant filed an appeal. In EEOC Appeal No. 0120113345 (July 16, 2013), the Commission found that the record was not adequately developed for a determination on the merits, reversed the Agency's final decision finding no discrimination, and remanded the matter to the Agency for a supplemental investigation. On September 18, 2013, after conducting a supplemental investigation, the Agency issued a final decision finding no discrimination.
In its final decision, the Agency analyzed incident 1 as a denial of reasonable accommodation claim and incidents 1, 4, and 5 collectively as a hostile work environment harassment claim.4 As an initial matter, the Agency found that, taken together, Complainant's medical conditions constitute a disability under the Rehabilitation Act.
Regarding the denial of reasonable accommodation claim, the Agency concluded that Complainant did not clearly demonstrate that she put the Agency on notice that, in addition to the benefits she received through OWCP, she needed a 10-minute sit down break as a reasonable accommodation. Specifically, the Agency found that it initially treated Complainant's work restrictions as an OWCP issue and provided her with a permanent modified light duty position as part of the OWCP process. In addition, the Agency found that its files did not contain a record of an accommodation request from Complainant and Complainant did not produce a copy of any request. Moreover, the Agency found that the medical documentation dated November 12, 2008, did not indicate how the work restriction was related to a disability, the identity of that disability, or whether the work restriction was permanent. Finally, the Agency found that, although one way to address Complainant's medical conditions and resolve the questions raised by the medical documentation dated November 12, 2008 would be to initiate the reasonable accommodation interactive process, Complainant elected to go through the OWCP process.
Regarding the hostile work environment harassment claim, the Agency concluded that Complainant did not show that the conduct complained of was sufficiently severe or pervasive to create an abusive work environment. As to incident 1, the Agency reiterated its previous analysis. As to incident 4, the Agency found that S1 made at least one distasteful remark about Complainant's need for frequent restroom breaks, but there was no evidence that Complainant objected until she contacted an EEO Counselor and S1 apologized when the EEO Counselor brought it to his attention. As to incident 5, the Agency found that there was no evidence that S2 singled out Complainant and that S2 was simply performing duties he was responsible for by ensuring that all Sales Store Checkers were providing appropriate customer service.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency denied her a reasonable accommodation and subjected her to hostile work environment harassment on the basis of disability. Regarding incident 1, Complainant argues that the Agency was aware of the work restriction because its files contained the medical documentation dated November 12, 2008. In addition, Complainant argues that the Agency should have contacted her doctor for clarification if it had any doubts about the medical documentation. Moreover, Complainant argues that Agency policy allowed for a stool if it was required as a reasonable accommodation, her request for a stool was not onerous, and the Agency had allowed C1 to use a stool for many years. Regarding incidents 2-5, Complainant reiterated the statements she made in her declaration.
The Agency did not file a brief or statement in opposition to the 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 9-16 (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
Denial of Reasonable Accommodation (Incidents 1-2)
As an initial matter, we find that incidents 1-2 are more properly analyzed as claims of denial of reasonable accommodation rather than as part of a hostile work environment harassment claim.
An agency is required to make reasonable accommodation to the known physical limitations of an otherwise qualified employee with a disability, unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its business.
29 C.F.R. � 1630.9(a). The duty to provide reasonable accommodation is an ongoing one. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, at Question 32 (Oct. 17, 2002) (Reasonable Accommodation Guidance).
The term "disability" means, with respect to an individual, a physical impairment that substantially limits one or more major life activities. 29 C.F.R. � 1630.2(g). The term "qualified," with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position she holds and, with or without reasonable accommodation, can perform the essential functions of the position. 29 C.F.R. � 1630.2(m). The term "essential functions" means the fundamental job duties of the employment position the individual with a disability holds.
29 C.F.R. � 1630.2(n).
The term "reasonable accommodation" means modifications or adjustments to the work environment, or to the manner or circumstances under which the position held is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position. 29 C.F.R. � 1630.2(o). When an individual decides to request accommodation, she or her representative must let the agency know that she needs an adjustment or change at work for a reason related to a medical condition. Reasonable Accommodation Guidance, at Question 1. A health professional may request a reasonable accommodation on behalf of an individual with a disability. Id. at Question 2. The following example constitutes a request for reasonable accommodation: "An employee has been out of work for six months with a workers' compensation injury. The employee's doctor sends the employer a letter, stating that the employee is released to return to work, but with certain restrictions." Id. A request for reasonable accommodation is the first step in an informal, interactive process between the employee and the agency. Id. at Question 1. After an agency receives a request for accommodation, the agency and the employee should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation. Id. at Question 5. The agency may ask the employee relevant questions that will enable it to make an informed decision about the request. Id. Failure by the agency to initiate or participate in an informal dialogue with the employee after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation. Id. at Question 6.
The term "undue hardship" means, with respect to the provision of an accommodation, significant difficulty or expense incurred by an agency. 29 C.F.R. � 1630.2(p). Generalized conclusions will not suffice to support a claim of undue hardship; instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expenses. Reasonable Accommodation Guidance, at Undue Hardship Issues.
I. Incident 1 - 10-minute Sit Down Break for Every Hour Worked
Upon review of the record, we find that the Agency denied Complainant a reasonable accommodation when it did not provide her with a 10-minute sit down break for every hour she worked.
First, we note that the Agency conceded in its final decision that Complainant was an individual with a disability. Second, we find that Complainant was "qualified" because the record does not contain any evidence indicating that she, with or without reasonable accommodation, could not perform the essential functions of her permanent modified light duty Sales Store Checker position. Third, we find that, on or about November 12, 2008, Complainant requested a reasonable accommodation of a 10-minute sit down break for every hour she worked. Specifically, we find that Complainant provided the Agency with the medical documentation dated November 12, 2008; the medical documentation was located under Exhibit F-6 in the ROI and the index to the ROI indicated that Exhibit F-6 consisted of "Complainant's medical documentation provided by the Agency." (emphasis added). In addition, we find that Complainant providing the Agency with the medical documentation constitutes a request for reasonable accommodation. We note that the circumstances here are similar to the example we cited above from the Reasonable Accommodation Guidance of what constitutes a request for reasonable accommodation, except that Complainant provided the medical documentation to the Agency whereas in the example the employee's doctor provided the medical documentation to the Agency. Fourth, we find that the Agency ultimately did not provide Complainant with the requested accommodation (a 10-minute sit down break for every hour she worked) or with an alternative effective accommodation (such as a stool). If the Agency believed that it could not make an informed decision about the request, it should have obtained relevant information from Complainant through the interactive process. The Agency, however, failed to engage in the interactive process. Fifth, we find that the Agency did not provide specific evidence proving that providing Complainant with a 10-minute sit down break for every hour she worked (or an alternative, such as a stool) would cause an undue hardship in the particular circumstances. We note that Agency policy explicitly allowed the use of a stool in the cashier work if required as a reasonable accommodation and C1 averred she had used a stool since 2003 or 2004.
II. Incident 2 - More Frequent Restroom Breaks
Upon review of the record, we find that the Agency did not deny Complainant a reasonable accommodation when it did not provide her with more frequent restroom breaks. Specifically, we find that Complainant did not request more frequent bathroom breaks as a reasonable accommodation. Although Complainant averred that she provided S1 with notes from three doctors documenting her need for more frequent restroom breaks, the record does not contain any such medical documentation and S1 averred that he did not recall receiving any such medical documentation. Although Complainant averred that she verbally requested restroom breaks, the record does not contain any evidence that, at the time of her verbal requests to S1, she linked her need for the restroom breaks with a medical condition.
Hostile Work Environment Harassment (Incidents 3-5)
To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002, at 6 (Mar. 8, 1994).
Upon review of the record, we find that Complainant did not establish a claim of harassment. Complainant alleged that S1 and S2 harassed her when: (a) on several occasions, S1 said to her, "If you can't stand - go home;" (b) on three occasions, S1 said to her, "Did you forget your Depends?" and (c) on August 13, 2010, S2 watched her for an entire hour while she worked at the SCO. Even assuming that the incidents occurred as alleged, we find that Complainant did not show that S1's remarks to her on several occasions and S2's observation of her working on one occasion were sufficiently severe or pervasive to create an abusive working environment.
CONCLUSION
Complainant established that the Agency denied her a reasonable accommodation when it did not provide her with a 10-minute sit down break for every hour she worked. Complainant did not establish that the Agency denied her a reasonable accommodation when it did not provide her with more frequent restroom breaks or that the Agency subjected her to hostile work environment harassment when it told her "If you can't stand - go home," asked her "Did you forget your Depends?", and watched her for an entire hour while she worked. Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision with respect to incidents 2-5, REVERSE the Agency's final decision with respect to incident 1, and REMAND incident 1 to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER
Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) calendar days of the date this decision becomes final:
1. The Agency shall provide Complainant with a reasonable accommodation following the parties engaging in the interactive process to determine Complainant's current needs.5
2. The Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages.
3. The Agency shall provide eight (8) hours of EEO training to S1 regarding his responsibilities under EEO laws, with a focus on reasonable accommodation.
4. The Agency shall consider taking appropriate disciplinary action against S1. 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 for its decision not to impose discipline. If S1 has left the Agency's employ, the Agency shall furnish documentation of his departure date.
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 Tinker Air Force Base Commissary 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 (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
___8/29/16_______________
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 Complainant did not specify the number of occasions.
3 For purposes of clarity, we have rephrased and renumbered Complainant's allegations based on her formal complaint and her declaration.
4 Regarding incidents 2-3, the Agency summarized the relevant testimony from Complainant and S1, but did not specifically address the incidents in its analysis.
5 We note that Complainant's needs may have changed since she requested reasonable accommodation in November 2008.
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