0120132659
09-01-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120132659
Agency No. 200I-0548-2012103612
DECISION
On June 28, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 18, 2013, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS-6, at the Agency's Veterans Affairs Medical Center in West Palm Beach, Florida.
On July 31, 2013, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment based on his disability and reprisal for prior EEO activity as evidenced by the following events:
1. On December 3, 2007, on a day Complainant was Acting Lieutenant, Police Officer Co-worker 1 yelled at and about him in front of others saying "Are you stupid? You can't get your shit right. If you can't get the post[ing] assignments right, then you shouldn't be a[n acting] lieutenant.... Fuck, don't you do this bullshit again.... He can't get anything right. He's fucked up."
2. On November 18, 2008, he witnessed Lieutenant S1 say to Police Officer Co-worker 2 "Get your ass outside. Move your ass." When Co-worker 2 responded that she did not appreciate references to her ass, S1 yelled "Why would I talk about your ass?" He then stood up towering over Co-worker 2 and said "You will obey."
3. On April 22, 2009, S1, in the presence of Complainant, a co-worker Police Officer, and Dispatcher Co-worker 3 said "I don't care which one of these sons of bitches you want to send to the [Emergency Room (ER) post], it doesn't matter to me...!" and then said, referring to Complainant, "hey, no, actually, send that hungry ass, greedy motherfucker up there. That way, he'll eat everybody out of the ER."
4. On May 15, 2009, when Co-worker 2 checked her mailbox, she found a plastic knife wrapped in a piece of yellow evidence tape with the statement: "here is another piece of evidence. I love you."1
5. Around mid-June 2009, the Agency denied his March 2009, reasonable accommodation request to wear a nylon/supplex bicycle uniform due to a skin condition and was directed to wear the standard Class A police uniform.2
6. In August 2009, Police Chief 1 (who retired in November 2011) cancelled Complainant's attendance for firearms training.
7. On August 27, 2009, while he was waiting in the ER for treatment as a service-connected veteran, Lieutenant S2 (who was not in Complainant's management chain at the time) entered the area smirking and laughing at him, and said "What are you here for? I don't want any shit out of you. We'll deal with you just like all the other veteran patients here. I don't want any shit out of you, you hear?"
8. On September 18, 2009, S1 verbally counseled him for leaving his door post.
9. On November 6, 2009, S2 made him wait approximately 3-5 minutes to pass through a narrow exit from the back room and said "I'm standing here and I'm not moving. If [Complainant] wants to go past, then he'll have to go around me!"
10. On November 9, 2009, while he was kneeling in front of his locker, he looked up and saw S2 "peering down" and "staring coldly" at him from such a close distance that he could not stand up without brushing into S2.
11. On November 22, 2009, Co-worker 1, a Sergeant (who was not supervising him at the time), warned him "They are watching you. Watch your step."
12. On November 23, 2009, Dispatcher Co-worker 3 speculated, upon learning Lieutenant S3 was out very sick with perhaps the flu, that he may have H1N1 and that his fingers were crossed that S3 would drop dead so he would not have to deal with him anymore. When Complainant criticized Co-worker 3 for his remarks, saying among other things that what he said showed deficient character, Co-worker 3 responded they would have to talk later.
13. While he was serving as an Acting Watch Commander on November 24, 2009, S2, who was off duty but now in his chain of management, gave a dispatcher permission to leave her post without informing him.
14. On December 28, 2009, another co-worker officer told him to stay away from an Agency hospital employee (Complainant's girlfriend), a reference to management communications (including with Complainant) that they perceived him as improperly taking breaks when he saw her.
15. He was subjected to fact-finding investigations on March 7, March 12, April 17, and April 23, 2012.
16. On April 24, 2012, his authorities to arrest and carry a firearm were temporarily suspended by successor Police Chief 2, and he was detailed to administrative duties.
17. On May 30, 2012, Police Chief 2 referred him to Occupational Health for a determination of his medical qualification.
18. On or around June 6, 2012, S2 told him he found and read through Police Chief 1's old files and asked how he could have taken him along -- promoted Complainant after all the stuff he wrote about S2, and that Complainant's association with Co-worker 2 and another Officer Co-worker who both no longer worked at the facility was the reason he had so much difficulty.
19. By letter dated June 4, 2012, he was compelled to submit his resignation (constructive discharge) "due to exacerbation of medical conditions and unsatisfactory conditions with [his] work environment" effective July 6, 2012.
In its definition of the complaint the Agency included all the above incidents, except incident 2, as part of Complainant's accepted harassment claim. In not including incident 2 as part of the harassment claim, the Agency reasoned Complainant appeared to raise this matter as background information. The Agency also accepted incident 19 as a discrete independently actionable claim. While accepting incidents 6, 8, and 16, as part of the harassment claim, the Agency dismissed them as discrete independently actionable claims. It reasoned that Complainant initiated contact with an EEO counselor regarding the instant complaint on June 20, 2012, beyond the 45 calendar day time limit.
Thereafter, the Agency conducted an investigation and provided Complainant with a copy thereof and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) on his harassment claim. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency found no discrimination.
Regarding harassment, the Agency found that none of the comments in incidents 1, 3, 7, 9, 10, 11, 12, 14 and 18 had a nexus to his alleged disabilities and EEO activity. It noted that incidents 5, 8, 13, 15, 16, 17, and 19 involved the conduct of several individuals. The Agency found that Complainant's allegations regarding objectionable interaction with co-workers did not rise to the level of actionable harassment. It found that managements' suspension of Complainant's authority to arrest and carry a firearm and his fitness for duty examination were necessary to the proper operation of the police service. In finding no harassment, the Agency relied, in part, on management testimony denying knowledge of a disability or Complainant's prior EEO activity.
Regarding the independently actionable issue of constructive discharge, the Agency bypassed an analysis on whether Complainant made out prima facie cases of disability and reprisal. It found that Complainant's resignation was voluntary and non-discriminatory.
In its FAD, the Agency provided Complainant mixed case appeal rights to the Merit Systems Protection Board (MSPB) on his constructive discharge claim. We take administrative notice that Complainant filed an appeal with the MSPB regarding his constructive discharge. The Agency provided appeal rights to the EEOC regarding the remainder of his claims.
On appeal, Complainant does not contest the Agency's partial dismissal of claims, and hence they are not before us. He argues that he was harassed and the investigation was insufficient. He also submits medical documentation.
In opposition to the appeal the Agency argues that its FAD should be affirmed.
ANALYSIS AND FINDINGS
Constructive Discharge
Regarding his constructive discharge claim, the Agency correctly provided Complainant appeal rights to the Merit System Protection Board (MSPB). He filed an appeal with the MSPB on July 2, 2013. In an initial decision, an MSPB Administrative Law Judge dismissed the appeal without prejudice to Complainant's right to refile by October 1, 2013. He explained Complainant filed a motion for continuance because he was going to travel outside the country. Appellant v. Department of Veterans Affairs, MSPB No. AT-0752-13-0752-I-1 (July 11, 2013). In response to an EEOC inquiry, on August 26, 2015, the MSPB wrote that the above matter was pending before its Atlanta Regional Office. Complainant does not write that he is appealing his constructive discharge claim to the EEOC. However, if this was part of this intention he did not have the right, at this juncture, to do so. 29 C.F.R. � 1614.302(d)(3). Accordingly, any appeal of incident 19, at this point, is dismissed. Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120131462 (Feb. 20, 2015).
Harassment
After reviewing the investigation, we find it was sufficient.
Complainant explained incident 1 regarded Co-worker 1 getting explosively upset over the posting assignment he gave him that day. In his transcribed statement, Complainant conceded that this incident did not occur because of his disabilities or reprisal for EEO activity. ROI Exh. B-1, transcript 28 - 29.
Incident 4, and for the most part incident 12, were directed at others, not Complainant. Complainant does not explain how these matters regarded his protected bases, and we don't discern a connection from the record. Dispatcher Co-worker 3 wrote that Complainant would always say to him in an angry tone that he was a Police Officer and he was only a Dispatcher. ROI, bates stamp 170.3
Incidents 3 and 8 involved S1, who was an acting supervisor on the days these incidents occurred. Complainant conceded that incident 3 did not occur in reprisal for his EEO activity. ROI, Exh. B-1, transcript 37. S1 stated that he had no idea Complainant had a disability, and there is no evidence to the contrary when these incidents occurred. S1 did not recall incident 3, which occurred over three years prior to his statement. In his contemporaneous written account of incident 3, Complainant wrote that about 30 minutes after arriving at the ER post, he got calls from S1 and Co-worker Dispatcher 3 to return, and his co-worker Police Officer assumed the post. Upon his return Complainant indicated that Dispatcher Co-worker 3 explained he made the postings and did not assign him the ER, and S1 "What's wrong with you man?! I was just joking, it was just a joke, I didn't mean it. You are too sensitive!" ROI, 211. S1 joking is consistent with what occurred - initially directing his salty remarks to all in the room, and the dispatcher retaining control over the posting assignments.
Regarding incident 8, S1 stated he verbally counseled Complainant for leaving his post at the main entrance without calling dispatch to get coverage. He explained that if there is no one at the post to check identifications, then the situation becomes an open free-for-all, and he did not write Complainant up. ROI, Exh. B-4, transcript 17 - 19. Complainant admitted he left his post, and did not give a persuasive reason for doing so without relief. ROI, Exh. B-1, transcript 59 - 60.
Incidents 7, 9, 10, 13 and 18 involved S2, who was not in Complainant's management chain until incident 13 and 18. S2 denied that incident 7 occurred. He stated the matter was investigated, found untrue, and he was cleared. ROI, Exh. B-2, transcript 16 - 17. On incident 9, S2 stated he did move, and does not remember the conversation Complainant contended occurred. S2 stated he did not recall incident 10 at all. On incident 13, S2 explained that the dispatcher said she needed to use the bathroom, he told her she could, and he covered the desk for her. He stated that since he was the supervisor and Complainant was in an acting capacity he did not advise Complainant of this. Id., transcript 18 - 19. Complainant wrote a memorandum on incident 13 11/2 weeks after it occurred. He contended that S2 undermined his authority and he was forced to cover dispatch for 5 to 10 minutes. ROI, at 200. On incident 18, S2 denied making any of the comments alleged by Complainant. Id., transcript 22. He wrote that on Complainant's last day of work, Complainant asked him about not bringing him along when S2 was promoted. S2 wrote this surprised him because Complainant knew he could not and would not bring someone "along with me" since this would be unprofessional and unethical. He wrote that as for Police Officer 1's old files, he only recently found them (in May or June 2012) and hence they could not have any bearing on promotions, and in any event he was professional and would not let any prior complaint against him have a negative impact on an employee deserving of a promotion. ROI, 254. S2 wrote that Complainant consistently twisted words and meanings to make him out to be the victim and took no responsibility for his actions. Id. Complainant has not established that incidents 7, 9, 10, and 13, occurred, as alleged.
It appears that incidents 11 and 14 regard Complainant's allegation that management was looking for an excuse to discipline him. Neither Co-worker 1, nor the other co-worker Officer recalled giving Complainant these referenced warnings about management. ROI, at 166, 173. The record does not show he was disciplined.
Police Chief 1 retired in November 2011, and the EEO investigator wrote she did not interview him for this reason. Regarding incident 5, according to Complainant, the Police Chief first said he canceled the course, than explained he wanted Complainant to have a chance to recover after his father passed away and they were getting new firearms soon, so it made no sense to train him and then have to retain again a few later months. Complainant stated this occurred 9 months before his father died and he was performing his duties daily without problems, and another officer was sent in his stead. ROI, at 206, Exh. B-1, transcript 47 - 50. S2 stated Complainant was not sent because he failed to qualify on multiple occasions. ROI, Exh. B-2, transcript 15. Complainant stated he had good scores on the firearms range. He does not contend he was not provided firearms training a few months later.
On incident 15, Complainant stated this matter actually regarded three fact finding investigations. He was the subject of two, and S1 was the subject of one initiated in response Complainant reporting S1. The first fact finding investigation was conducted by S2, and regarded an incident which occurred on February 20, 2012, where a nurse reported a patient said something indicating he may be in possession of cocaine, and Complainant cleared the matter with a "no cause," finding. While Complainant gave a detailed explanation for his actions, both S2 and Police Chief 2 opined Complainant did not follow correct procedures, with Police Chief 2 explaining he did not take proper investigative steps. ROI, Exh. B-2, transcript 20 - 21, Exh. B-3, transcript 20. Police Chief 2 stated he felt this was not a conduct issue but a performance/training issue, and hence Complainant was not disciplined.
The second fact finding regarded safety issues which occurred during training scenarios Complainant participated in on February 20, 2012, and March 7, 2012 - the first Rapid Response Training, and the second Ground Defense and Recovery involving hands on physical training. According to Complainant's version of events, the first training scenario concluded with a knife being pulled on him by a non-police hospital employee and Complainant placing his hand on his firearm, unsnapping the safety snap, beginning to torque it and withdraw it from the holster, before a police Lieutenant involved in the training jumped between the two and yelled for things to stop. Complainant related that he did not know this was a training event and the Lieutenant believed he knew and should have known. ROI, at 220 - 222. According to Complainant, the second training scenario involved S1, in the role of instructor, getting on top of him and he was supposed to lock his legs around S1's back and hold onto him but could not do so because of limited range of motion in his ankle. According to Complainant, S1 reported him as being unable to complete the Ground Defense and Recovery. ROI, Exh. B-1, transcript 99. The fact-finding investigation was conducted by a third person. In his written response thereto, Complainant disclosed he had medical issues, but declined to identify them. Police Chief 2 stated that the second fact-finding investigation resulted in some changing of training requirements globally for the Police Service, and a conversation with Complainant about how he conducts himself in training. He believed the fact finding revealed evidence of performance issues, not conduct issues, and hence there was no discipline. ROI, Exh. B-3, transcript 18 - 19.
On April 23, 2012, Complainant reported to Police Chief 2 that after training scenario 2 was completed with S1, he, S1 and two others stopped for lunch, and while on duty S1 drank two or three alcoholic sangrias and then drove the group in a government vehicle. A fact-finding regarding the drinking incident started around May 1, 2012. While Complainant was asked to explain his delay in reporting the incident, the focus of the investigation was on the drinking and driving. ROI, at 227. Police Chief 2 stated Complainant was not the subject of this investigation. He wrote that S1 and the other two police officials denied the drinking allegation, the wait staff did not recall having served the beverage, and the restaurant manager was unable to provide a guest receipt. ROI, at 252. Police Chief 2 stated no action was taken against S1 because there was insufficient evidence.
Regarding incident 5, Complainant wrote and/or stated that beginning in 2008, he received Agency bicycle patrol training, and thereafter was issued sets of bicycle patrol uniforms made of nylon/supplex based material. He stated that he discovered that the bicycle patrol uniform resulted in a marked improvement of his eczema. However, around the end of the summer in 2008, the Police Service rewrote its standard operating procedures to require "IPMBA" training to be on bicycle patrol. In March 2009, Complainant requested the reasonable accommodation of being permitted to wear the bicycle uniform to alleviate his skin condition. He stated that at that time he gave Police Chief 1 a letter from his doctor stating he had a dermatologic condition, and to please allow him to wear a bicycle patrol uniform to lessen to severity of such condition. ROI, Exh. B-1, transcript 38 - 39, ROI, at 187. Complainant stated that in response Police Chief 1 authorized him to continue on bicycle patrol and wear the bicycle uniform, but around mid-June 2009, Police Chief 1 and Complainant's Lieutenant at the time stated he could no longer continue on bicycle patrol and wear the bicycle uniform until taking the formal training course. Complainant stated he was finally sent to bicycle training at the end of the year, and passed the course. ROI, Exh. B-1, transcript 43.
In a July 2, 2009, memorandum regarding this matter, Complainant advised that since around mid-June 2009, he was told weekly that he could no longer wear the bicycle patrol uniform. He wrote that over the years he had purchased 10 sets of standard police uniforms, and it would not be cost effective for him to try other brands/types of uniforms since after wearing them for a time he may find the new uniforms were an irritant to his eczema.
Regarding incidents 16 and 17, Police Chief 2 explained that on April 23, 2012, Complainant asked to speak privately with him and they did. Police Chief 2 gave the following account. Complainant indicated he had something important to tell him, and then cried and sobbed in an uncontrollable manner. Police Chief 2 told Complainant he could talk about whatever he wanted. While crying for several minutes, Complainant said he was so troubled by what he had to tell he could not sleep at night because he was over worrying. Complainant then recounted his claim about S1 drinking at the restaurant on March 7, 2012, and then driving a government vehicle. When asked why he waited so long to share this, Complainant explained he worried how others would react to him telling on another officer. Complainant then cried again, sobbing and mumbling words. Police Officer 2 assured him the information he brought to his attention would be investigated and mentioned the availability of the Employee Assistance Program, to which Complainant said he was already in counseling and on medication for sleep. Police Chief 2 asked Complainant to write a memorandum about the drinking incident, and when he checked on him 30 minutes later Complainant became teary eyed, said he worries about everything constantly, and felt alone and scared. ROI, at 245 - 246.
With the exception of a confidential psychological evaluation which Complainant submitted to the EEO counselor but is not in the record, Complainant did not submit medical documentation below, and none is in the record. On appeal, he submitted a note recounting his mental health visit, in the capacity of a veteran patient, with the Veterans Affairs Medical Center, West Palm Beach. In the mid-May 2012 note, the medical crises team recounted that Complainant said he did not know why he tears up so easily, but he felt hopeless and got angry easily. He referenced his delay in reporting the drinking incident, and acknowledged he felt a lot of guilt and developed obsessive thoughts about things and obsessive rituals, that he had become forgetful because he was constantly preoccupied with anxious thoughts, had cramps and diarrhea daily making him weak, and was sleeping poorly.
Complainant stated he got upset in the above meeting with Police Officer 2 because he had just been through multiple fact findings, had been passed over for promotion nine times, and had not slept in months, but while some tears came out of his eyes, he was not hysterical.
Police Chief 2 explained that based on his over 35 years of law enforcement experience, 20 of them as a police manager, he was really concerned about Complainant's emotional stability, based on his meeting with him on April 23, 2012, and his judgment call was that it was necessary to suspend Complainant's law enforcement authority, and assign him to administrative duties pending a fitness-for-duty examination.
Complainant alleges that he was subjected to a hostile work environment and harassment. To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. �1604.11.
Complainant has not established a prima facie case of harassment. As recounted above, he acknowledged that a couple incidents did not occur in reprisal for prior EEO activity and one did not occur because of his disability. Two incidents and part of a third were directed at others and the record did not show a connection between them and his protected bases. Complainant did not establish that the five incidents connected to S2 occurred as alleged. The Agency gave non-discriminatory reasons for a number of other incidents which the record shows were not motivated by animus against his protected bases -- a verbal counseling for leaving his main entrance door post without coverage, the fact finding investigations, temporarily suspending his authorities to arrest and carry a firearm and detailing him to administrative duties and referring him for a fitness-for-duty examination. Moreover, while incident 3 involved salty language, we find it was a joke not directed at Complainant because of his protected bases. While we are unable to resolve the circumstances regarding the denial of Complainant's firearm training, he stated he was told he would get it in any event a few months later when the new firearms arrived, and Complainant does not contend this did not occur. Further, the denial of Complainant's request to continue wearing the patrol bicycle uniform, after authorizing him to do so for some time when he was no longer qualified for bicycle patrol, and allowing him to resume once he qualified is not harassing in nature. In finding no harassment, we add that Complainant has alleged there were a number of perpetrators, but not shown their varying actions were tied together.
Bicycle Patrol Uniform
The Agency did not define this matter as a discrete independently actionable incident. Rather, it accepted it as part of Complainant's harassment claim. Complainant contends that the Agency denied his request for the reasonable accommodation of wearing a bicycle uniform in mid-June 2009, and then or shortly thereafter he had to wear a standard police uniform until late 2009 or early 2010, when he qualified again for bicycle patrol. This alleged denial of reasonable accommodation is a discrete, independently actionable event. Complainant did not initiate EEO counseling regarding the instant complaint until June 20, 2012, more than two years after 45 calendar day time limit to do so. We find, for the same reason the Agency dismissed events 6, 8,4 and 16 as independently actionable discrete events, which Complainant does not contest, that the bicycle uniform matter is also untimely. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2).
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. 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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 1, 2015
__________________
Date
1 The Agency defined this issue as the knife being in Complainant's mailbox. He clarified that he witnessed the incident.
2 The Agency defined this issue without reference to reasonable accommodation. A review of the complaint reveals it is more accurately defined above.
3 From here on, all ROI page number references refer to bates stamp numbers, except transcript numbers.
4 While the Agency characterized incident 8 as a discrete event, this is doubtful since it just involved a verbal conversation, not discipline.
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