Jane C. Morgan, Complainant,v.John H. Dalton, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 3, 2000
01972175 (E.E.O.C. Feb. 3, 2000)

01972175

02-03-2000

Jane C. Morgan, Complainant, v. John H. Dalton, Secretary, Department of the Navy, Agency.


Jane C. Morgan v. Department of the Navy

01972175

February 3, 2000

Jane C. Morgan, )

Complainant, )

) Appeal No. 01972175

v. ) Agency No. 94-00024-010

)

John H. Dalton, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her equal employment opportunity (EEO) complaint of unlawful

retaliation based on prior EEO activity and discrimination based on sex

(female) and mental disability (anxiety and depression/panic disorder),

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, as

amended, 29 U.S.C. � 791, et seq.<1> Complainant alleges she was

subjected to discrimination based on mental disability when she was (1)

issued a Letter of Requirement (LOR) on January 31, 1994; subjected

to discrimination based on mental disability and sex when she was (2)

placed on Absence Without Leave (AWOL); subjected to discrimination

based on mental disability and to retaliation when she was (3) rated

"minimally successful" on April 26, 1994, (4) removed from timekeeping

duties on May 13, 1994, (5) issued a Letter of Caution for inaccurate

recording of time and attendance, and (6) required to report her daily

activities to her supervisor when others where not required to do so;

and subjected to discrimination based on sex when she (7) experienced

sexual harassment based on a hostile work environment.. The appeal is

accepted in accordance with EEOC Order No. 960.001. For the following

reasons, the FAD is AFFIRMED AS CLARIFIED.

ISSUES PRESENTED

The issues on appeal are whether complainant proved her claims of

discrimination or retaliation by a preponderance of the evidence.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Program Assistant, GS-344-07, in the Deep Submergence Systems

Program, PMS 395, Naval Sea Systems Command, Arlington, Virginia.

Believing she was a victim of discrimination, complainant sought

EEO counseling and, subsequently, filed a complaint on May 23, 1994.

At the conclusion of the investigation, complainant initially requested

a hearing before an Administrative Judge (AJ), but subsequently withdrew

her request, and the agency issued a FAD.

The FAD concluded that complainant failed to establish a prima facie

case of disability discrimination because she did not establish that

she was an "individual with a disability" within the meaning of the

Rehabilitation Act.

The FAD further concluded that complainant did establish a prima facie

case of retaliation with respect to incidents (3) and (5), because she

demonstrated that she had engaged in prior EEO activity (initiating EEO

Counselor contact), her supervisors were aware of it, and she subsequently

received a "minimally successful" performance appraisal and a Letter

of Caution. The FAD concluded that complainant had not established a

prima facie case of retaliation with respect to incidents (4) and (6),

because she had been relieved of her timekeeping duties and required to

report on her daily activities prior to her contact with the EEO office,

and therefore these adverse actions could not have been motivated by

her subsequently-occurring EEO activity..

The FAD further concluded that complainant failed to establish a prima

facie case of discrimination based on sex, finding that although she

alleged males were entitled to longer smoking breaks and lunch hours, she

failed to present evidence that similarly situated individuals not in her

protected classes were treated differently under similar circumstances.

Specifically, the FAD concluded that the males allegedly treated more

favorably were not similarly situated to complainant, because complainant

was the only employee who had been consistently late to work and who

was under a Letter of Requirement for leave abuse. In addition, with

respect to the particular extended lunch cited by complainant, the FAD

concluded that the civilian employees present had all used leave time

in order to attend.

The FAD further concluded that even assuming complainant had established

a prima facie case of disparate treatment based on sex or disability,

and notwithstanding that complainant had established a prima facie case

of reprisal, the responsible management officials articulated legitimate,

non-discriminatory, non-retaliatory reasons for the decisions at issue.

Specifically, the FAD concluded:

(1) complainant was issued an LOR because she continued to be tardy

after having been counseled numerous times, and having been offered a

later starting time as an accommodation after she advised her supervisor

that she suffered from morning anxiety attacks, complainant failed to

respond to her supervisor's requests for a letter from a medical doctor

to substantiate the need for repeated tardiness, but her attendance

improved substantially after issuance of the LOR ;<2>

(2) complainant was tardy on the days she was charged with AWOL,

and although she contended others were also tardy due to poor road

conditions and were not charged with AWOL, she failed to identify any

such individuals;

(3) complainant's "minimally successful" performance appraisal was

issued based on the appraisal elements of Organizational Support and

Communication, and Execution of Duties, because while complainant's

two supervisors during the relevant period found her work to generally

be "fully successful," certain problems in November 1993 and March

1994 warranted the lower rating, including complainant's tardiness,

allegedly combative and hostile attitude, insubordinate behavior toward

her supervisor, insulting behavior toward co-workers, and yelling,

slamming and throwing papers, questioning work assignments, and missing

deadlines, and her supervisor had noted such problems to her verbally

and by e-mail during her mid-year review in November, 1993;

(4) complainant's frequent absences or tardiness made her unfit for

timekeeping duties, because time card preparation was done at the

beginning of the day, and complainant had incorrectly recorded that she

was present at work on December 29, 1993;

(5) complainant was issued a Letter of Caution because on May 3, 1994

she arrived at work thirty minutes late and left thirty minutes early,

but indicated on her time card that she arrived and left on time;

(6) complainant's supervisor required complainant and a co-worker to

report their daily activities due to untimely and inaccurate preparation

of financial documents, and he removed the requirement for the co-worker

because the documents at issue were not her main duty, and because her

completion rate far exceeded complainant's rate.

The FAD found that as to each of these six incidents, complainant

had failed to demonstrate that management's proffered legitimate

non-discriminatory and non-retaliatory reasons for its actions were

pretextual.

Finally, the FAD concluded that complainant failed to establish a prima

facie case of sexual harassment based on a hostile work environment

resulting from (a) the posting of offensive pictures with offensive

captions on the wall above a co-worker's desk, (b) widespread use of

vulgar language by co-workers, and (c) an instance where a co-worker

allegedly rubbed the front of his body against complainant's side.<3>

The FAD found that (a) complainant conceded that once she complained

about the offensive pictures with captions, the captions were removed,<4>

(b) a hostile work environment resulting from profanity and sexual

innuendo did exist in complainant's office prior to June, 1993, but

effective corrective action was taken at that time, whereas the instant

complaint concerns actions allegedly occurring from November, 1993,

through May 20, 1994, and (c) the alleged incident in which a co-worker

rubbed his front against complainant's side was uncorroborated, and

complainant did not report it to her supervisor. The FAD also found

that complainant had not reported the alleged physical contact by her

co-worker, notwithstanding that she had reported an incident of unwelcome

sexual contact by a different co-worker in 1991, and therefore was aware

of reporting requirements and procedures for alleged sexual harassment.

The FAD also found that even if complainant had reported the incident,

it was a single incident and therefore did not constitute severe or

pervasive conduct as required to establish sexual harassment based on

a hostile work environment.

On appeal, complainant contends, inter alia, that (1) a GS-318-06

secretary who did not have a disability was permitted to take excessive

sick leave and advanced annual leave; (2) her anxiety condition was

caused by years of sexual harassment at the agency, in response to

which she had unsuccessfully requested to change her desk location; (3)

she was not counseled regarding tardiness prior to receiving the LOR;

(4) she was not given anything in writing regarding poor performance

at the time of her mid-year performance review; (5) she inadvertently

signed in for December 29, 1993, because weekends and holidays were not

blocked off on the sign-in sheet for that week; (6) she was not allowed

to lock up the facility, and thus was forced to leave early if authorized

personnel were leaving early; (7) she was not officially informed when

her timekeeping duties were removed; (8) her tardiness on February 22

and 24, 1994, deemed AWOL, was weather-related, and she was fifteen

minutes rather than thirty, which she states is "an excusable tardiness";

(9) management's assertion that all civilian employees had to use leave

time for an extended lunch does not account for military personnel, who

did not use leave time for the extended lunch but were not disciplined,

and a secretary was permitted to use sick leave for the extended lunch;

(10) her prior performance appraisals were all "outstanding" or "exceeds."

The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

After a careful review of the record, based on McDonnell Douglas

v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd,

545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation

cases), the Commission agrees with the agency that complainant failed to

establish a prima facie case of discrimination based on sex or disability,

and that even assuming she had, she has not proven discrimination by a

preponderance of the evidence. Similarly, while the Commission agrees

that complainant has established a prima facie case of retaliation,

we find that she has not proven retaliation by a preponderance of the

evidence.<5> However, in reaching this conclusion, we clarify several

points in the agency's analysis, as follows.

Disability Discrimination

The FAD appears to confuse two separate issues: (1) whether complainant

satisfied her legal burden, in support of the instant complaint, to

establish that she is an "individual with a disability" within the

meaning of the Rehabilitation Act;<6> and, (2) whether complainant

provided sufficient information to management in support of her request

for disability accommodation.

In order to raise a disability discrimination claim under the

Rehabilitation Act, a complainant must establish that she is an

"individual with a disability" within the meaning of the statute.

An "individual with a disability" is one who (1) has a physical or

mental impairment that substantially limits one or more major life

activities, (2) has a record of such impairment, or (3) is regarded as

having such an impairment. 29 C.F.R. �1630.2. Major life activities

include activities such as caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working.

29 C.F.R. �1630.2(i). Complainant must further demonstrate that she is a

"qualified" individual with a disability, meaning that she can perform the

essential functions of the "position such individual holds or desires."

EEOC Regulation 29 C.F.R. �1630.2(m).

The record contains a letter complainant submitted to management from

a Licensed Clinical Social Worker (LCSW) dated November 29, 1993,

stating that complainant was receiving treatment from the LCSW and

her primary care physician for Panic Disorder, that complainant's

anxiety levels were often intense in the early morning hours of the

day, that her condition was improving, and stating "[t]hank you for

any assistance you can give her as she works to bring her symptoms

under control." ROI at 59. The LCSW's letter does not specify what

particular type of accommodation that is medically indicated, if any.

Complainant's first-line supervisor asserts that complainant told him

at the time she requested accommodation of her panic disorder that she

had not yet sought treatment. As the FAD notes, according to a letter

from complainant to members of Congress, complainant contends she began

taking medication for her panic disorder in December, 1993, during the

time frame at issue in the complaint.<7> Although it is not referenced

in the FAD, the record also contains a letter from complainant's medical

doctor, dated March 31, 1994, stating that "[d]ue to a medication change

in January, 1994, [com[lainant's] health and overall functioning improved

significantly by the end of the same month."

We concur with the FAD's conclusion that complainant has not met her

burden to establish that she is an "individual with a disability."

The documentation in the investigative record fails to establish that,

at the time in question, complainant's panic disorder substantially

limited her in any major life activity.

As a separate matter, although it does not affect the disposition of

this case, we note that management was incorrect in advising complainant

that her accommodation request must be supported by a letter medical

doctor rather than an LCSW. The EEOC Enforcement Guidance on Reasonable

Accommodation and Undue Hardship Under the Americans With Disabilities

Act, No. 915.002 (March 1, 1999) (Guidance), at question 6, provides:

[T]he employer may ask the individual for reasonable documentation about

his/her disability and functional limitations . . . An employer may

require that the documentation . . . come from an appropriate health care

professional. The appropriate professional in any particular situation

will depend on the disability and the type of functional limitation

it imposes. Appropriate professionals include, but are not limited to,

doctors (including psychiatrists), psychologists, nurses, physical

therapists, occupational therapists, speech therapists, vocational

rehabilitation specialists, and licensed mental health professionals.

Thus, an LCSW can be an appropriate health care professional to provide

documentation depending upon the case. The Commission notes that the

agency should train its managers accordingly.<8>

Sexual Harassment

The Supreme Court has established that sexual harassment in the

workplace violates Title VII and is actionable as a form of sex

discrimination. Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). To

establish a prima facie violation of Title VII based on sexual harassment,

appellant must show: (1) that she belongs to a statutorily protected

group; (2) that she was subjected to sexual harassment in the form of

unwelcome sexual advances, requests for sexual favors, or other verbal or

physical conduct of a sexual nature; (3) that the harassment complained of

was based on sex; and (4) that submission to such conduct was made either

explicitly or implicitly a term or condition of appellant's employment

or was used as a basis for employment decisions affecting appellant,

or the conduct unreasonably interfered with her work performance or

engendered an intimidating, hostile or offensive working environment. 29

C.F.R. � 1604.11(a); Quintero v. United States Postal Service, EEOC

Appeal No. 01960836 (April 21, 1998); Jones v. Flagship International,

793 F.2d 714, 719-722 (5th Cir. 1986); Henson v. City of Dundee, 682 F.2d

897, 903-905 (11th Cir. 1982); see also Bundy v. Jackson, 641 F.2d 934

(D.C. Cir. 1981); Katz v. Dole, 709 F.2d 251 (4th Cir. 1983).

Regarding the fourth element, it is well-settled that, unless the conduct

is very severe, a single incident or a group of isolated incidents

will not be regarded as creating a discriminatory work environment. See

Walker v. Ford Motor Company, 684 F.2d 1355, 1358-9 (11th Cir. 1982);

Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981). However,

as is set forth in the EEOC Policy Guidance on Current Issues of Sexual

Harassment, N-915-050, No. 137 (March 19, 1990), "a single, unusually

severe incident of harassment may be sufficient to constitute a Title

VII violation." Our guidance states further:

The Commission will presume that the unwelcome, intentional touching of a

charging party's intimate body areas is sufficiently offensive to alter

the conditions of her working environment and constitute a violation

of Title VII. More so than in the case of verbal advances or remarks,

a single unwelcome physical advance can seriously poison a victim's

working environment.

Id. In order to avoid liability for hostile environment sexual

harassment, the agency must show one of the following: (1) the acts or

conduct complained of did not occur; (2) the acts or conduct complained

of were not "unwelcome;" (3) the alleged harassment was not "sufficiently

severe or pervasive" to alter the conditions of the victim's employment

and create an abusive working environment; (4) immediate and appropriate

corrective action was taken as soon as the employer was put on notice;

and/or (5) there is no basis for imputing liability to the employer

under agency principles. Quintero v. United States Postal Service, EEOC

Appeal No. 01960836 (April 21, 1998). See also Meritor Savings Bank,

F.S.B. v. Vinson, 477 U.S. 57 (1986); EEOC Policy Guidance on Current

Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990).

With respect to (4) above, we note that the Commission's Regulations

provide that "[w]ith respect to conduct between fellow employees, an

employer is responsible for acts of sexual harassment in the workplace

where the employer (or its agents or supervisory employees) knows

or should have known of the conduct, unless it can show that it took

immediate and appropriate corrective action." 29 C.F.R. � 1604.11(d). When

an employer becomes aware of alleged sexual harassment, the employer has

the duty to investigate such charges promptly and thoroughly. See EEOC

Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137

(March 19, 1990); see also Katz v. Dole, 709 F.2d 251, 255-6 (employer

is on notice of alleged harassment once an employee lodges a complaint

and is liable unless it then takes prompt and adequate remedial action).

The FAD concluded that complainant had failed to prove that the incident

in which a male employee rubbed the front of his body against her side

in fact occurred. However, the record contains no contrary affidavit

from the alleged harasser, whom the agency identified as unavailable.

Moreover, whereas the FAD states that the witness identified by

complainant did not corroborate the incident, in fact the witness

did corroborate that he saw the alleged harasser "hug" complainant,

"but not in a sexual or offensive manner." ROI at 133. The legally

relevant issue is whether or not this conduct was unwelcome from the

standpoint of a reasonable person in complainant's position.

Assuming arguendo that the occurrence of this corroborated physical

conduct does meet the elements of a prima facie case of sexual harassment,

complainant has nonetheless failed to establish liability because she

concedes that she did not complain to her management chain of command

regarding this incident, but rather brought it to the attention of the

EEO Counselor handling the instant matter. ROI at 144. With respect to

sexual harassment by a co-worker as opposed to a supervisor, management

was not obligated to take prompt remedial action absent notice of the

harassment.

As the FAD notes, complainant concedes that the offensive photograph

captions were taken down as soon as complainant complained about

them, and that she did not find the photographs, absent the captions,

to be offensive. ROI at 134. Accordingly, we cannot conclude that

management failed to take prompt, remedial action once put on notice

of the sexual harassment at issue in this complaint. Finally, with

respect to complainant's allegation of repeated use of vulgarity, the

evidence is disputed, and thus remains in equipoise. Accordingly,

complainant has not met her burden of proof with respect to the claim

of sexual harassment.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, the FAD is AFFIRMED AS

CLARIFIED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must be

submitted to the Director, Office of Federal Operations, Equal Employment

Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

2/3/00

_______________ ___________________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at WWW.EEOC.GOV.

2Complainant denied that her supervisor ever requested a letter from

a medical doctor. Record of Investigation (ROI) at 139. The FAD also

noted that while complainant advised the EEO Counselor that she believed

the LOR was issued in retaliation for her questioning a decision made

by her supervisor, not in retaliation for prior EEO activity. The FAD

also noted that in a letter complainant wrote to a member of Congress,

she stated that she was told that her supervisor began preparing the

LOR in November, 1993, prior to complainant's EEO activity at issue.

3We note that the Record of Investigation (ROI) contains a redacted report

by the agency's Inspector General regarding numerous other allegations of

sexual harassment of complainant by another individual. ROI at 150-172,

and a redacted letter from the Inspector General's office to Congress

regarding the report's findings. ROI at 92 et seq. Although a history

of additional alleged incidents of sexual harassment are referenced in

these documents, these additional incidents are not referenced in the

agency's notice of acceptance of the complaint, complainant's counsel's

response thereto, or any requested amendment. ROI at Tabs C-2 and C-3.

Accordingly, these incidents may be viewed as background evidence in

support of complainant's claims.

4The photographs in question, as identified by the employee who posted

them, are contained in the Record of Investigation at 132.

5Complainant also asserts that the FAD "admit[s]" that she proved her

"case of discrimination based on prior protected activity," apparently

mistaking the FAD's holding that she proved a prima facie case for a

finding that she had proven her case on the merits. As noted in the FAD

at pages 4-5, establishing a prima facie case is only the first step in

the indirect evidence method of proof, and is not equivalent to proving

the claim at issue.

6Pursuant to the Rehabilitation Act Amendments of 1992, the ADA's

employment standards apply to all nonaffirmative action employment

discrimination claims filed by federal applicants or employees with

disabilities under section 501 of the Rehabilitation Act. Pub. L.

No. 102-569 � 503(b), 106 Stat. 4344 (1992) (codified as amended

at 29 U.S.C. � 791(g) (1994)). The Rehabilitation Act regulations

governing reassignment of federal employees with disabilities,

which were promulgated several months prior to the enactment of the

Rehabilitation Act Amendments, differ in several respects from the ADA's

requirements. Compare 29 C.F.R. � 1614.203(g) with 29 C.F.R. � 1630.2(o),

(p), and � 1630.9. For non-discrimination purposes, federal agencies

must follow the ADA standards.

7Since the time the agency issued its FAD, the Supreme Court has held that

the determination of whether a person has a "disability" must be based on

his or her actual condition at the time of the alleged discrimination, and

therefore must take into consideration whether the person is substantially

limited in a major life activity when using a mitigating measure, if any,

such as medication. Sutton v. United Airlines, Inc., 119 S. Ct. 2139

(1999); Murphy v. United Parcel Service, Inc., 119 S. Ct. 2133 (1999).

8We note that complainant's first-line supervisor advised the

EEO Counselor that he would like more training regarding reasonable

accommodation issues. See Record of Investigation at 16 (EEO Counselor's

Report at 9, �5).