U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iliana S.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 0120081848 Agency No. F-05-6016 DECISION Complainant filed an appeal from the Agency's 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). This case is before us following a final decision in which the Agency found that Complainant was not a "qualified individual with a disability" entitled to reasonable accommodation; that it had not subjected Complainant to disparate treatment based on disability and reprisal and for prior protected activity; and that it had not subjected Complainant to discriminatory harassment on the aforementioned bases. For the reasons which follow, the Commission REVERSES the Agency's final decision, and finds that the Agency subjected Complainant to disparate treatment based on reprisal and failed to provide Complainant with reasonable accommodation for her disability. ISSUES PRESENTED The issues presented on appeal are: (1) whether Complainant established that she is a qualified individual with a disability under the Rehabilitation Act; (2) whether Complainant established that the Agency denied her a reasonable accommodation for her claimed disability; and (3) whether Complainant established that the Agency subjected her to disparate treatment and hostile work environment harassment based on either of her claimed bases. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Equal Employment Opportunity Program Manager, GS-13, in the Complaint Processing and Special Programs Unit, Office of Equal Employment Opportunity Affairs (OEEOA), at the J. Edgar Hoover FBI Building in Washington, D.C.2 Report of Investigation (ROI), Ex. D, at 2. Complainant's position required her to manage Equal Employment Opportunity Special Emphasis Programs, including the Federal Women's Program, the Sexual Harassment Program, and the Upward Mobility Program. Id. at 12, 23. Complainant's position required her to be in contact with Agency supervisors and managers. Complainant's duties required her to: Conduct research, analyze, and gather information; resolve difficult employment problems, obtain agreement and/or necessary action concerning employment policies, and to negotiate changes in policies in practice affecting equal opportunity in employment . . . . [The] work is sedentary except for occasional brief periods of standing or walking. No special physical demands are required. ROI, Ex. Q. On March 24, 2002, Complainant was assigned to an EEO Officer who became her second-level supervisor (S2). Id., Ex. F, at 2. On March 28, 2002, Complainant provided a letter to the Agency from her doctor noting: [Complainant] is a . . . female with a 25 year history of intermittent low back pain due to degenerative disc disease. . . . I anticipate [Complainant] being able to return to work part time, with limitation to her ability to perform prolonged sitting or standing or any lifting activities in the near future. . . . Unfortunately, this is likely to be a recurring problem for [Complainant]. ROI, Appeal No. 0120064076, Vol. I, Ex. A, at 40. In February 2004, Complainant was assigned to the Acting Unit Chief of the OEEOA Special Programs Unit, who served as Complainant's first-level supervisor (S1). ROI, Ex. E, at 7-15. Prior to her employment with the Agency, Complainant was enlisted in the U.S. Army from November 24, 1975, to April 27, 1978. Complainant's Appeal Br., at 2. Following Complainant's discharge from the Army, an orthopedic doctor diagnosed Complainant with Degenerative Disk Disease (DDD) in her lower back, which was caused by an accident while Complainant was on active military duty. Id. Complainant has the status of a 10-point compensable veteran as the result of her DDD. Id. Complainant also receives disability compensation from the U.S. Department of Veterans Affairs related to her DDD. Id. In October 2003, Complainant was also diagnosed with Fibromyalgia. Complainant's Fibromyalgia condition causes chronic widespread musculoskeletal pain with symptoms of fatigue. ROI, Ex. D3 at 27-36. On March 19, 2004, Complainant sent an e-mail to S1, S2, and the Ombudsman following up on a meeting that occurred on the prior day discussing her medical conditions. Therein, Complainant noted: Yesterday afternoon I was thinking about our noon meeting. A particular note of interest was the comment [S1] made regarding my mobility. Based upon this comment, I felt it was imperative that I educate the 3 of you somewhat on my conditions(s). I will of course be providing documentation from my doctor; however, I fell it is important to provide you first hand, personal information in order to help you understand more fully. So, let me first say that I am in pain EVERY SINGLE DAY of my life. I cannot recall a day when I had no pain at all. This has been for over 20 years with my back and several months with the fibromyalgia in my joints. I have degenerative disk disease which has resulted in almost total degeneration of disks L3-L-4, L4-L5, and L5-S1, which means I virtually have bone on bone with no disk cushioning between. In addition, I have been diagnosed with Fibromyalgia, which is a form of rheumatism that affects the joints to include knees, shoulders, neck, hips, S-1 joints, etc. The degree of pain changes daily from fairly mild, constant pain that I have learned to live with and tolerate to extreme, excruciating pain, which increases with each movement of my body. In addition to the pain, my stiffness and mobility vary from mildly stiff to tight as a drum where it is almost completely impossible for me to even get out of bed. . . . Complainant's Appeal Br., Ex. 12, at 24. Complainant's DDD causes bones in her spine to rub against each other, in turn causing irritated nerves and bulged discs. ROI, Ex. D, at 3. On March 23, 2004, Complainant wrote an e-mail to S1 and S2 attaching an information article, which explained that the symptoms of Fibromyalgia include sleep disturbances, morning, stiffness, irritable bowel syndrome, anxiety and other symptoms. Complainant's Appeal Br., Ex. 7. In April 2004, Complainant also informed S1 and S2 that she had been diagnosed with having a bilateral knee strain, a meniscus tear, and degenerative arthritis in her knees. Id., Ex. 8. Complainant experiences chronic pain and stiffness in both knees and has to wear a neoprene knee sleeve and needed physical therapy. Id. Complainant's condition affects both knees, but her left knee is more symptomatic than her right knee. Id. Complainant's doctor advised Complainant to avoid bending, stooping, heavy lifting, prolonged standing, and walking. Id. On August 3, 2004, Complainant had arthroscopy surgery for her left knee. ROI, Ex. W. Complainant also had ongoing treatment for degeneration in her knee, receiving hyaluronate injections. Id. Complainant's doctors gave Complainant instructions to avoid squatting, ascending/descending stairs. Id. Complainant provided S1 and S2 with documentation and leave slips concerning her surgery, physical therapy, and orthopedic doctor appointments. Id., Ex. D, at 5-6; Ex. D3, at 23-24. On November 16, 2004, the Agency's J. Edgar Hoover Building was scheduled to have a fire drill. Six days prior, on November 10, 2004, Complainant sent a memorandum to S1 and/or S2 that noted: Following my surgery to repair my knee [on August 3, 2005] I have had to undergo a series of injections into the knee because the cartilage is worn away. Along with the surgery and injections come physical therapy appointments. Additionally, I have had pain clinic appointments for injections into my back for the degenerative disk disease and also appointments at the VA Medical Center which they scheduled. Id., Ex. D3, at 1. The morning of November 16, 2004, Complainant spoke with the Agency's Safety Warden to confirm that a fire drill was scheduled to take place that day. Id., Ex. H, at 4-5. Complainant asked the Safety Warden that she be allowed to use the elevator, instead of the stairs, with other employees with disabilities. Id. The Safety Warden responded that Complainant would not be allowed to use the elevator. Id. The Safety Warden told Complainant that only employees having a record of a disability could use the elevator and no employees were registered for the drill as having a disability. Id. The Safety Warden reportedly told Complainant that S2 specifically said that she was absolutely not allowed to use the elevator. Id., Ex. D, at 8. The fire alarm went off at 10:00 a.m. on November 16, 2004, and Complainant was forced to walk down seven flights of stairs with a coworker who was also prohibited from using the elevator. Id. at 19-20. Complainant and the coworker left the building and attempted to walk three blocks up the street to the fire drill meeting point. Id. However, the coworker noticed that Complainant's knee was extremely swollen and advised Complainant that they should not try to walk to the meeting point. Id. After employees were assembled at the meeting point, S2 noticed that Complainant and the coworker were not there. ROI, Ex. J, at 4-5. The Supervisory Equal Employment Specialist told S2 that they were "either a little slow because of their physical condition or maybe they couldn't make it up the hill." Id. S2 then instructed the Supervisory Equal Employment Specialist to locate Complainant and the coworker. Id. The Specialist found Complainant and the coworker across the street from the J. Edgar Hoover Building. Complainant told the Specialist that she was unable to make it up the hill because of her knee. Id. After the fire drill was over, Complainant reportedly felt pain in her knee and was having trouble walking. ROI, Ex. D, at 9. Complainant then immediately went to the Agency's health clinic for assistance. Id. at 20. The Agency's nurse had Complainant lie down with ice on her knee before Complainant returned to the office. Id. Upon returning to the office, S2 reportedly yelled at Complainant and threatened Complainant with insubordination for failing to report to the meeting point. Id. Complainant subsequently went to the doctor that evening for her knee. Id. Descending down the stairs during the drill severely aggravated her knee impairment. Complainant thereafter met with the Deputy Director about the fire-drill incident. Id. at 21.3 The Deputy Director's assistant reportedly said that Complainant should have been allowed to use the elevator. Id. On or about December 10, 2004, the Safety Warden added Complainant to the "list of employees who need assistance during emergency evacuations." ROI, Ex. D4, at 2. In order to alleviate pain and discomfort Complainant preferred to e-mail S1 and S2 instead of walking to their offices. A coworker testified: I have observed Complainant having serious difficulty traveling to and from her work place. She could hardly walk. She would take long breaks, sometimes leaning against a wall in a hallway, even though she carried a cane. I have given her a ride from HQ to her metro station because she was in grave pain. [S1] and [S2] usually communicated with me though e-mails, unless they were trying to give evasive instructions to set someone up. . . . In general, they avoided face to face meetings. ROI, Ex. L, at 7. However, S1 and S2 were unwilling to allow Complainant to strictly use e-mail communication with them and frequently required Complainant to meet with them in their offices. Id., Ex. E, at 12. Complainant reportedly, on some days, had to walk as many as 10 to 15 times a day to their offices. Id., Ex. D, at 18. Complainant had been assigned a collateral duty as an Employee Assistance Counselor. Id. at 11-12. The Employee Assistance Unit conducted mandatory training for all counselors in the fall of 2004. Id. There was a session offered in Washington, D.C., and another offered in New Jersey. Id. Complainant requested to attend the session in Washington, D.C., but S1 and S2 denied her request. Id. Complainant also had been appointed as the Agency's Sexual Harassment Coordinator, and S1 suggested that Complainant attend a Sexual Harassment Prevention course offered by Cornell University in New York. Id. Complainant responded that there were other courses offered closer to the Washington, D.C., area. Id. S1 told Complainant that she believed the Cornell course was the best and most up-to-date and requested that she attend the course before the end of the fiscal year. ROI, Ex. E, at 10. On September 16, 2004, Complainant submitted her training request attached to a routing slip, noting that she would be unable to attend the September class, but wanted to attend the one in December. Id., Ex. D5. On September 20, 2004, Complainant received the routing slip back in her mailbox with the words "Not Approved" written in large letters by S2. Id. Complainant's request was allegedly denied by S2 because Complainant failed to make the request at least 45 days prior to the training, in accordance with Agency policy. ROI, Ex. F, at 5. S2 also stated that if this was not the case, she cannot recall why Complainant was denied training. Id. However, S1 stated that Complainant's training was denied due to Complainant's workload. ROI, Ex. E., at 11. Complainant stated that in the summer and early fall of 2004, S1 and S2 began to impose extremely short suspense dates on her assignments. Id., Ex. D at 13-14. One day in September 2004, S1 reportedly approached Complainant at her desk and told her to contact all of the Agency's 52 Field Offices by the end of the day in order to obtain some information. Id. Complainant reportedly replied to S1 that this was impossible to complete in a day as it was already mid-morning. Id. Complainant felt this task would take a week to complete. Id. Also, in mid-October 2004, Complainant reportedly submitted to S1 work documentation that she completed. Id. S1 later returned the work to Complainant with numerous corrections. Complainant made the necessary corrections and resubmitted the documentation to S1, but S2 returned the work to Complainant again with more corrections. Id. Complainant made the corrections, but it was once again reportedly returned to Complainant a third time with more corrections. Id. On November 2, 2004, Complainant asked S1 if she could leave the office a half-hour early at 4:00 p.m. instead of her usually 4:30 p.m. time. Id. at 7-8. Complainant wanted to commute home to Woodbridge, Virginia, to vote in the presidential election before her polling placed closed. Id. at 7-8. However, S1 reportedly told Complainant to make her request to the acting EEO officer who was substituting for S2 for the day. Id. The acting EEO officer said that Complainant could leave early to vote, but also said that she would let S2 know that she left early. The acting EEO officer reminded Complainant that she was on leave restriction. Complainant was afraid to leave work early and did not do so. Id. On April 12, 2005, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability and reprisal4 for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. her request for advanced sick leave was denied September 14 and 16, 2004, and on November 2, 2004; 2. she was denied training that was required in her performance work plan in September 2004; 3. in October 2004, she was given unrealistic deadline for projects that imposed extra requirements and her work product was overly scrutinized; 4. her disability was not accommodated and she was required to walk back and forth to her supervisors' offices rather than being permitted to communicate through e-mail; and 5. management failed to accommodate her disability on or about November 16, 2004, by denying her the use of an elevator during a fire and evacuation drill. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency found no evidence that Complainant had a record of a disability or was regarded as having a disability. The Agency found no indication that it identified or regarded Complainant as an individual with a disability. The Agency noted that although management was aware that Complainant had health problems, management did not consider Complainant to have a disability protected under the Rehabilitation Act. The Agency noted that there was no persuasive evidence that Complainant's conditions were serious enough to substantially limit one or more of her major life activities. The Agency therefore found that Complainant was not entitled to reasonable accommodation. The Agency also found no evidence of reprisal or harassment. The Agency noted that Complainant failed to demonstrate that she suffered any loss of pay, a demotion, discipline, or any other material negative consequence to her employment because of the alleged reprisal. The Agency found that Complainant failed establish that she suffered a material adverse action. The Agency also found no evidence of a nexus between Complainant's EEO activity and its actions. The Agency noted that the alleged reprisal did not occur shortly after management learned of Complainant's EEO activity. The Agency noted that Complainant filed an EEO compliant in April 2004 and claimed that reprisal occurred between September 14 and November 16, 2004, about five months later. The Agency noted that courts have held that a five-month interval between protected activity and adverse actions is insufficient to raise an inference of reprisal. The Agency also found that it established legitimate, nondiscriminatory reasons, which Complainant failed to establish were pretext for discrimination. CONTENTIONS ON APPEAL Complainant's Brief on Appeal On appeal, Complainant, through her attorney, contends that the Agency's final decision used an improper analysis with respect to reprisal. Complainant contends that the Agency misapplied legal precedent in its decision, and that the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute reprisal. Complainant contends that the Commission's regulations prohibit any adverse treatment that is based upon a retaliatory motive that is reasonably likely to deter a complainant from engaging in protected activity. Complainant contends that in September 2004, when the investigation into her first EEO complaint was underway, S1 and S2 denied her requests to attend training. Complainant contends that a month later S1 and S2 first began to impose unrealistic and very short deadlines. Complainant contends that it was during this time period that S1 and S2 refused to accommodate her disabilities by requiring her to walk back and forth to their offices. Complainant contends that S1's testimony stating that "it is my perception that Complainant was more interested in documenting her interactions with management in anticipation of a lawsuit than having actual meaningful and productive discussions regarding her assignments, leave, and healthcare issues" is evidence of discriminatory animus. ROI, Ex. E, at 12. Complainant contends that S1 and S2 also lectured her about her inability to walk to their offices. Complainant contends that coworkers found that management unreasonably required her to descend down seven flights of stairs instead of using the elevator during the fire drill. Complainant contends that, as a result, she further aggravated her knee impairment, requiring two major extensive surgeries. Complainant further contends that coworkers concluded that she was subjected to reprisal as the result of her EEO activity. Complainant cites to the Acting Federal Women's Program Manager's testimony: I was not aware of [Complainant's] EEO activity until rumors began in the office and bad rumors floating around about her. As EEO counselor I knew that was wrong, and since [Complainant] had not said anything herself, it was very obvious the intention was to make her look bad. I told someone that I could not believe this was going on. I had witnessed to [sic] much of the events surrounding Complainant's injuries on the fire drill day. I could not believe it. But since [Complainant] was not one of [S2's] 'in group' and I was so aware of the discriminations [sic] that were exercised by the 'outsiders' it was very obvious to me what was happening to [Complainant] was nothing but reprisal. ROI, Ex. L, at 6. Complainant cites again to the Acting Federal Women's Program Manager's testimony: The way it works that if a person makes a point of sharing their observations of any unfairness with [management], they automatically become 'it.' This translates into further mistreatment and forcing the person to file an EEO complaint. Once an EEO complaint is filed then [S2] insinuates that the employee is 'disgruntled' and not providing valid testimony. Id. at 8. Complainant also cites to the EEO Office Secretary's testimony: I heard of the reprisal through casual chit chat by other FBI employees in the hallways. These employees were 'shocked' by the immediate change in [S2's] attitude towards [Complainant]. . . . They complained of loud arguments between S1 and [Complainant] and S1's constant badgering. But, at the same thing [sic], they refused to go 'heavy' into detail because they have heard of S2's threat to the OEEOA staff. . . . These so-called threats still continue. ROI, Ex. M, at 10. Complainant contends the discriminatory treatment began the same month S1 and S2 were directed to prepare and submit their EEO affidavits during the investigation of her first EEO complaint. Complainant contends that her EEO activity occurred in sufficient proximity to the alleged acts of discrimination to create a prima facie case of reprisal. Complainant also contends that the Agency's proffered legitimate, nondiscriminatory reasons for denying her training are pretext for discrimination based on reprisal. Complainant contends that S1's testimony that she decided to revoke the approval of her sexual harassment training due to her workload is not credible. Complainant contends that S2 did not specifically recall the training at issue at the time of the EEO investigation and presumed that the training was denied because she most likely did not follow office policy. Complainant contends that no reason was communicated to her as to why her training request was disapproved. Complainant contends that the one-day training session would not have had an adverse impact on her workload. Complainant contends that both S1 and S2 gave different explanations for the denial of her sexual harassment training. Complainant further contends that she clearly is a qualified individual with a disability. Complainant contends that she suffers from DDD, Fibromyalgia, and a permanent knee disability. Complainant contends that her medical documentation notes that she is restricted in engaging in major life activities, such as walking, working, sitting, standing, and sleeping. Complainant contends that her medical impairments are permanent and chronic. Complainant contends that S2 was evasive in her EEO affidavit, answering a majority of the questions by only stating that "it has not been established that Complainant has a disability." Complainant contends that she has produced medical documentation from 2002 through 2004, noting that she has impairments that restrict her ability to stand, walk, and work. Complainant contends that she wore a knee brace, used a cane and crutches, and walked with a limp, which was visible to other employees. Complainant contends that various employees testified that they observed her using a cane, experiencing pain at work. Complainant further contends that the Agency's reasons for requiring her to use the stairs during the fire drill are pretext for discrimination. Complainant contends that S1 said that she waited to the last minute to use the elevator. Complainant contends that S1 testified that she did not observe anything about her that would indicate that she needed special assistance during the fire drill. Complainant contends that it was well known throughout the office that her physical impairments impacted her ability to walk. Complainant contends that she reminded management of her knee impairment at least six days prior to when the drill was held. Complainant contends that S1 was a supervisor in the Agency's EEO office, which provides assistance with Agency employee accommodation requests. Complainant contends that S1 told the Safety Warden that she was not allowed to use the elevator during the drill. Complainant contends that she was threatened with discipline after the drill was over, and that other employees who had disabilities were permitted to use the elevator during the drill. Complainant contends that she was subsequently added to the list of employees who are allowed to use the elevator during a fire drill. Complainant moreover contends that S1 and S2 required her to continually walk back and forth from their offices rather than allowing communication by e-mail or telephone. Complainant contends that S1 and S2 allowed other non-disabled employees to communicate with them primarily by e-mail, instead of having face to face meetings. Complainant contends that S1's assertion that she did not observe her having mobility issues is simply not credible. Complainant contends that instead of making an effort to engage in the interactive process, S1 and S2 chose to berate her for the fire drill incident. Complainant additionally contends that S1 and S2 subjected her to a hostile work environment based on her disabilities, including, among other things, imposing very short deadlines, overly scrutinizing her work, and imposing extra requirements. Complainant contends that the Agency's actions unreasonably interfered with her work performance and created an intimating work environment. The Agency's Response In response, the Agency asserts that Complainant failed to request a hearing where the credibility of managers could be assessed. The Agency asserts that Complainant has failed to show that its actions were motivated by discriminatory animus based on reprisal and disability. The Agency asserts that it had no duty to accommodate Complainant because she did not submit appropriate medical documentation. The Agency asserts that it provided Complainant with a new chair and lift for her workstation outside the formal accommodation process. The Agency asserts that the medical documentation that Complainant provided lacked specific restrictions and limitations and was deemed insufficient. The Agency asserts that while there is medical documentation that Complainant re-injured her knee while walking down the stairs during the drill, that was not the initial cause of her knee injury. The Agency asserts that Complainant failed to establish that she has a disability within the meaning of the Rehabilitation Act. The Agency asserts that Complainant was placed on leave restrictions because she had no annual leave and had a negative 156 hours balance of sick leave as of March 2004. The Agency asserts that it was not until March 19, 2004, that Complainant first discussed her conditions and limitations in an e-mail to S1 and S2, which described some vague limitations on sitting, standing, bending, and sleeping. The Agency asserts that it was not until April 2, 2004, that Complainant submitted the only doctor's note in the record related to her diagnosis of Fibromyalgia, which did not list any limitations. The Agency asserts that on April 7, 2004, Complainant submitted a request for several reasonable accommodations, but as of April 13, 2004, Complainant failed to provide adequate medical documentation. The Agency asserts that the reasonable accommodation committee had previously found that Complainant was not disabled based on the lack of sufficient medical evidence. The Agency asserts that it was not until after the fire drill incident was over that Complainant provided physically limiting information from her doctor. The Agency asserts that Complainant cannot establish that management knew of her impairments. The Agency further asserts that it articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to establish were pretext for discrimination. The Agency asserts that Complainant was denied sick leave because she was over the limit of eighty hours of leave without pay (LWOP). The Agency also asserts that management did not stop Complainant from leaving work early to vote and only reminded Complainant that she was on leave restriction. The Agency asserts that S1, due to Complainant's workload issues, decided that Complainant should take the sexual harassment training course later in the fall. The Agency asserts that the Federal Equal Opportunity Recruitment Program Plan and Report was due during that time frame. The Agency asserts that Complainant did not suffer any harm as a result of not attending the course and was never rated negatively on any performance plan as a result of missing the training. The Agency also asserts that Complainant failed to establish that she was subjected to a hostile work environment based on disability and reprisal. The Agency asserts that an Equal Employment Manager stated that it was her belief that all employees were treated equally in regards to work. With respect to reasonable accommodation, the Agency asserts that assuming Complainant is considered to be a qualified individual under the Rehabilitation Act, she was not denied accommodation. The Agency asserts that Complainant provided insufficient medical documentation to place management on notice of her alleged disabilities, despite management's repeated requests. With respect to the fire drill incident, the Agency asserts its Security Division maintained a list of employees with disabilities who were permitted use the elevators by escort. The Agency asserts that Complainant never requested to be on that list prior to the morning of November 16, 2004. The Agency asserts that employees were notified a month in advance of the drill, but Complainant only requested to use the elevator minutes prior to the drill. The Agency cites to EEOC Appeal No. 0120064076 (January 14, 2008), asserting that we found Complainant failed to proved sufficient medical documentation to management regarding her DDD and Fibromyalgia.5 The Agency asserts that the medical information provided dated June 29, 2004, merely lists Complainant as temporarily disabled, post surgery for a period of only three weeks. The Agency asserts that Complainant has undergone a "simple arthroscopy surgery" as described by her doctor and had been instructed to only miss three weeks of work with only one week on crutches. The Agency asserts that the medical documentation referenced by Complainant that she should avoid descending down stairs was dated November 22, 2004, after the fire drill took place. The Agency asserts that while Complainant sent a memorandum to S1 and S2 six days before the drill, the memo was not a medical document and was not sufficient to put management on notice that Complainant had a disability. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Reasonable Accommodation Under the Commission's regulations, federal agencies may not discriminate against individuals with disabilities and are required to make reasonable accommodations for the known physical and mental limitations of qualified individuals with disabilities, unless an Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a "qualified" individual with a disability, pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (October 17, 2002) ("Enforcement Guidance on Reasonable Accommodation"). 1. Individual with a Disability This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of "disability" under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2004, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an "individual with a disability." Under the pre-ADA Amendments Act framework, Complainant, as a threshold matter, must establish that she is a person who has, has a record of, or is regarded as having a physical or mental impairment which substantially limits one or more of his major life activities, i.e., caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. § 1630.2(j). An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner, or duration under which an individual can perform a major life activity. 29 C.F.R. § 1630.2(j). In the instant case, we find that the Agency erred in finding that Complainant was not an individual with a disability. We find that the record contains more than sufficient medical documentation to conclude that Complainant was an individual with a disability. Complainant's medical conditions substantially limited the major life activities of walking and standing. The record contains countless witness statements and medical documentation, explaining that Complainant's impairments severely affected her ability walk and stand. On March 28, 2002, Complainant provided a letter to the Agency from her doctor noting: Complainant is a . . . female with a 25 year history of intermittent low back pain due to degenerative disc disease. . . . I anticipate [Complainant] being able to return to work part time, with limitation to her ability to perform prolonged sitting or standing or any lifting activities in the near future. . . . Unfortunately, this is likely to be a recurring problem for [Complainant]. ROI, Appeal No. 0120064076, Vol. I, Ex. A, at 40. On April 2, 2004, Complainant provided additional medical documentation to the Agency, noting that she has been diagnosed with Fibromyalgia, a chronic condition that causes musculoskeletal pain. Complainant's Appeal Br., Ex. 7 at 15. On April 26, 2004, Complainant's Orthopedic Specialist typed a consultation report, noting that Complainant was experiencing pain in both knees. Therein, the Orthopedic Specialist noted: As far as her patellofemoral arthritis is concerned, I would recommend a neoprene knee sleeve with patellar cutout. I would recommend that [Complainant] avoid any squatting activities. [Complainant] will be placed on a physical therapist based VMO strengthening program . . . . She should avoid squats at all costs . . . Id., Ex. 8, at 7. On May 17, 2004, Complainant's Orthopedic Specialist typed another consultation report for Complainant's visit. Therein, the Orthopedic Specialist noted: Patient returns today for follow-up for her pain and stiffness in both of her knees, left more than right. Patient has been undergoing a course of aquatic therapy for her fibromyalgia. . . . She continues to have pain in both knees, really the left more than the right. Id. at 14. Complainant also provided a letter to S1 and S2 from her Orthopedic Specialist, stating that she would be out of work from August 3 to August 20, 2004, due to knee surgery. ROI, Ex. D3, at 23. The Orthopedic Specialist subsequently noted: [Complainant] underwent an arthroscopy in August of 2004 for meniscal tears of both the medial and lateral compartments. She was also found to have degenerative changes in grade 3/4 of the patella. Following this, she was slowly rehabbing. She had been to physical therapy and had received Hyalagan injections. Complainant's Appeal Brief, Ex. 15, at 23. Following the fire drill incident, Complainant's Orthopedic Specialist noted in a consultation report dated March 30, 2005: [Complainant] returns today for follow-up of her left knee, which was injured at work on November 16, 2004 when she was required to descend some stairs in a short period of time while a work. [Complainant] sustained a twisting injury to her left knee and was found to have a medial meniscal tear, as well as a probable acute chondral injury as a result of the twisting injury to her left knee, which exacerbated her preexisting degenerative changes which were known in her knee [emphasis added]. Id. at 12. We note that many employees testified that they witnessed Complainant having trouble walking and standing. The Women's Program Manager testified: I was aware of [Complainant's] disability. She would never take the steps up or down to the 8th floor because of her pain. When I asked she explained her degenerative disease, knee problems etc. At times she looked so in pain. . . . I frequently offered to give her a ride from the HQ to her metro station. ROI, Ex. L, at 6 The Women's Program Manager further testified: I have observed [Complainant] having serious difficulty traveling to and from her work place. She could hardly walk. She would take long breaks, sometimes leaning against a wall in a hallway, even though she carried a cane. Id. at 7. A Supervisory EEO Specialist also observed Complainant's impairments, "I am aware that [Complainant] has physical problems with her back, knees, along with some other type of health problems . . . from seeing her in the office using a cane for support." ROI, Ex. J, at 4. Another coworker testified, "Yes, I am aware that [Complainant] has a disability. . . . I just knew she had a medical condition that affected her leg. . . . I recall talking to her when she was not feeling well, and she informed me that her leg was hurting." Id., Ex. I, at 4. Given the severity and nature of Complainant's knee impairment, as well as her symptoms from her Fibromyalgia and DDD, we find that Complainant has clearly established that she is an individual with a disability, and it is not clear why the Agency found otherwise. We note that an agency is not permitted to ask for medical documentation when both the disability and the need for the reasonable accommodation are obvious or when the individual has already provided sufficient information to substantiate that she had a disability and needs the reasonable accommodation requested. See Enforcement Guidance on Reasonable Accommodation. The record reflects that Complainant experienced chronic pain that severely affected her ability to walk, stand, squat, and descend/ascend stairs. See Higgins v. U.S. Postal Serv., EEOC Appeal No. 07A30086 (Sep. 14, 2005) (finding that a complainant with herniated disks and knee impairments, substantially limited in the major life activities of standing and walking, was an individual with a disability under the Rehabilitation Act); Durinzi v. U.S. Postal Serv., EEOC Appeal No. 01A11800 (July 18, 2003), req. for recon. den'd, EEOC Request No. 05A31158 (Sep. 24, 2003) (finding that a complainant diagnosed with fibromyalgia was an individual with a disability under the Rehabilitation Act); Rafalski v. U.S. Postal Serv., EEOC Appeal No. 0120064487 (Mar. 26, 2009) (finding that a complainant diagnosed with degenerative disc disease was an individual with a disability under the Rehabilitation Act). 2. Qualified Individual with a Disability After complainant has shown that she is an individual with a disability, the complainant must then establish that she is a "qualified" individual with a disability. A "qualified" individual with a disability is one who satisfies the requirements for the employment position she holds or desires and can perform the essential functions of that position with or without reasonable accommodation. 29 C.F.R. § 1630.2(m). There is no evidence of record, nor does the Agency argue, that Complainant was unable to perform the essential functions of her position. The work Complainant performs is sedentary except for occasional brief periods of standing or walking. No special physical demands are required. We therefore find that Complainant has established that she is a qualified individual with a disability. 3. Reasonable Accommodation Once a complainant has demonstrated that she is a qualified individual with a disability, the complainant must then establish that the agency failed to provide a reasonable accommodation. Generally, a complainant with a disability must request a reasonable accommodation by letting the employer know she needs an adjustment or change at work for a reason related to a medical condition. See Enforcement Guidance on Reasonable Accommodation. After receiving a request for reasonable accommodation, the employer should engage in an informal process with the individual with a disability to clarify what the individual needs and identify the appropriate reasonable accommodation. Id. Upon review, we find that Complainant has established that she was denied a reasonable accommodation for her disability when she was not allowed to use the elevator during the fire drill. Notwithstanding the Agency's assertions, the record is clear that management was more than aware of Complainant's disabilities before the fire drill. Complainant provided medical documentation for her impairments, as well as leave slips for her knee surgery that took place in August 2004. Complainant also had meetings and wrote memoranda to S1 and S2 explaining her disabilities. Many employees observed Complainant's impairments. Complainant in fact sent S1 and S2 a memorandum only six days prior to the drill on November 10, 2004, explaining her knee condition. ROI, Ex. D3, at 1. Also, according to the EEO Office Secretary, Complainant requested to use the elevator a few days before the drill. ROI, Ex. M, at 12. The record reflects that Complainant's request for accommodation in this instance was simply ignored. We find it disingenuous for the Agency to assert that the medical documentation that Complainant provided was insufficient. Complainant's husband testified: Investigator: What is your understanding of what medical documentation was being required of [Complainant]? Husband: Excessive documentation. Every document [Complainant] submitted was insufficient, even after she had documentation from three separate medical Doctors. The reason I know this is because I took her to these specific appointments to accommodate her office requirements and demands. . . . Management requiring medical documentation for all sick leave has caused [Complainant], on at least one occasion, to have to take an additional day of sick leave . . . . ROI, Appeal No. 0120064076, Vol. II, Ex. J, at 3. Given all the meetings, witness testimony, memorandums, leave slips, and medical documentation about Complainant's impairments, we find it hard to believe that S1 and S2 were not aware that Complainant had a disability. We note that another coworker testified: We were at EEO Counselor training. I saw [Complainant] step out of the room with S2, when [Complainant] came back she was crying. . . . I approached S2 asked her what happened. S2 told me that they had it under control. Later on that same day, [Complainant] informed me that she had fibromyalgia and S2 didn't seem concerned. . . . The next day [Complainant] was not in attendance training. I asked [S2] about [Complainant] and [S2] didn't appear to be concerned. . . . I found [Complainant] in her room, crying in pain, very upset because of the way she was being treated . . . I did get a feeling that it didn't phase (sic) them and they were not concerned for [Complainant]. ROI, Appeal No. 0120064076, Vol. II, Ex. I, at 2. The record reflects that management was clearly aware that Complainant was disabled, and simply ignored her accommodation request to use the elevator during the fire drill. We note that Complainant severely aggravated her knee disability as the result of the Agency's failure to accommodate her. We also find that Complainant established that she denied reasonable accommodation when S1 and S2 required her to continually walk back and forth from their offices, instead of allowing her to communicate via e-mail. We note that Complainant reportedly, on some days, had to walk as many as 10 to 15 times a day to their offices. ROI, Ex. D, at 18. The Women's Program Manager testified, "[S1 and S2] usually communicated with me through e-mails. . . . In general, they avoided face to face meetings." Id., Ex. L, at 7. We also note that the Women's Program Manager testified, "At times she looked so in pain . . . and holding back her tears as best as she could, and that is if she had just walked down the hall." Id. at 6. The Women's Program Manager further testified, "[Complainant] could hardly walk. [Complainant] would take long breaks, sometimes leaning against a wall in a hallway, even though she carried a cane." Id. at 7. To the extent that the Agency contends that Complainant never requested accommodation here, we note that in making an accommodation request, an employee is not required to use the "magic" words "reasonable accommodation." See Enforcement Guidance on Reasonable Accommodation. Instead, the employee need only inform the Agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S. Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24, 2006). We find that the Agency should have been on notice that Complainant was seeking reasonable accommodation. We note that S1 testified, "[Complainant] never once expressed to me that she had any difficulty walking to my office; nor did I observe any mobility issues regarding [Complainant] at that time." Id., Ex. E, at 12. We do not find that S1's testimony here is credible, as other employees testified that they witnessed Complainant have issues with walking and standing in the office. 4. Liability for Compensatory Damages We turn now to the matter of the relief to be afforded to Complainant, which included requests for compensatory damages. Where a discriminatory practice involves the provision of a reasonable accommodation, damages may be awarded if the agency fails to demonstrate that it made a good faith effort to provide the individual with a reasonable accommodation for his disability. 42 U.S.C. § 1981a(a)(3); Morris v. Dep't of Defense, EEOC Appeal No. 01962984 n.3 (October 1, 1998). In this case, Complainant underwent surgery, many doctor's appointments and physical therapy appointments, and submitted leave slips and medical documentation to S1 and S2 reflecting this. Complainant also notified S1 and S2 of her impairments on many occasions through e-mails, memoranda, and meetings. Many employees witnessed Complainant's painful trouble walking, and believed that Complainant was disabled. As such, the record reflects that S1 and S2 disingenuously testified that they were not aware that Complainant was disabled. Instead of accepting Complainant's disability, S1 and S2 needlessly continued to ask Complainant for more documentation. This clearly constitutes bad faith. Complainant is therefore entitled to present a claim for compensatory damages on the agency's failure to accommodate her. See West v. Gibson, 527 U.S. 212 (1999). Reprisal Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro y. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation. No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White. 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process). Notwithstanding that Agency's assertions to the contrary, we find that Complainant has established a prima facie case of discrimination based on reprisal. Complainant has clearly met the first two prongs as she filed her previous EEO complaint on April 13, 2004, naming S1 and S2 as responsible management officials. While the Agency asserts that Complainant was not subjected to an adverse action regarding the third prong, we have held that adverse actions need not qualify as ultimate employment actions as noted above. With regard to the fourth prong, there is no dispute that the EEO investigative process regarding her April 13, 2004, complaint was ongoing while Complainant was subjected to the alleged adverse treatment. As such, we find that a nexus exists between the adverse treatment and protected activity. We therefore find that Complainant clearly established a prima facie case of reprisal discrimination. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). We find that Complainant established, by the preponderance of the evidence, that the Agency's articulated reason for its actions were pretext for retaliation. In finding so, we note that the Women's Program Manager testified that bad rumors were being spread about Complainant's EEO activity. ROI, Ex. L, at 6. The Women's Program Manager further testified that Complainant was not in S2's "in group," and that it was her belief that Complainant was subjected to discrimination based upon reprisal for filing her EEO complaint. Id. We also note that the EEO Office Secretary testified that employees were shocked by the change in S2's attitude towards Complainant, and heard loud arguments between S1 and Complainant. ROI, Ex. M, at 10. The EEO Office Secretary also testified that employees refused to go into detail about S1 and S2's actions because they have felt threatened by them. Id. Further, with regard to the sexual harassment training, S1 testified that due to Complainant's workload, it was determined by S2 that Complainant should take the course at a later date. ROI, Ex. E, at 10. We note, however, that S2 testified differently. S2 instead testified that she could not recall the specific instance, but it was probably because Complainant failed to follow Agency policy. Id., Ex. F, at 5. Complainant contends that she was not provided with an explanation as to why this training was not approved. We note that on September 20, 2004, Complainant's training request was returned to her in her mailbox with S2's writing noting, "Not approved" with no other explanation except that the "training was never entered for [Complainant]." Id., Ex. D5. At no point does S2's writing note that Complainant's request for the one-day training was denied/delayed due to workload or policy. Id. We note that the Women's Program Manager testified: Again, whoever is 'it' in the OEEOA doesn't get training. . . . I am sure that there were trainings denied to [Complainant] that I and others may have received, as she was 'it' at the time. . . . But discrimination was exercised in the OEEOA at all times, and it still is. ROI, Ex. L, at 7. Based on the above, we therefore find that the Agency's reasons for denying Complainant training are unworthy of belief. We also find that the Agency's reasons are unworthy of belief regarding Complainant's claim that that S1 and S2 required her to continually walk back and forth from their offices. We note that Complainant reportedly, on some days, had to walk as many as 10 to 15 times a day to their offices. The record reflects that S1's testified that "it is my perception that Complainant was more interested in documenting her interactions with management in anticipation of a lawsuit than having actual meaningful and productive discussions regarding her assignments, leave, and healthcare issues." ROI, Ex. E, at 12. We note that S1 and S2 allowed other employees to communicate through e-mails. The Women's Program Manager testified, "[S1 and S2] usually communicated with me through e-mails. . . . In general, they avoided face to face meetings." Id., Ex. L, at 7. We also note that the Women's Program Manager testified, "At times she looked so in pain . . . and holding back her tears as best as she could, and that is if she had just walked down the hall." Id. at 6-7. The Women's Program Manager further testified, "[Complainant] could hardly walk. She would take long breaks, sometimes leaning against a wall in a hallway, even though she carried a cane." Id. We find that S1's testimony that she did not witness Complainant have mobility issues is not credible. Id., Ex. E, at 12. With respect to the fire drill incident, the Agency was clearly aware that on August 3, 2004, Complainant had arthroscopy surgery for her left knee. We note that Complainant had ongoing treatment for her knee, which the Agency was clearly aware of. Complainant in fact sent S1 and S2 a memorandum six days prior to the drill on November 10, 2004, explaining her knee condition. Other employees clearly testified that they observed Complainant having physical mobility issues. While the Agency asserts that Complainant only requested to use the elevator minutes before the fire drill, the record reflects otherwise. Specifically, we note that the EEO Office Secretary testified that she was told that Complainant: ... approached the [Safety Warden] a few days before the fire drill and had explained that since [her and a coworker] had knee surgery could they have permission to use the elevator. The [Safety Warden] said that [S2's] response was 'no.' ROI, Ex. M, at 12. We further note that after Complainant met with the Deputy Director, the Safety Warden subsequently added Complainant to the "list of employees who need assistance during emergency evacuations." We find the Agency's reasons for not allowing Complainant to use the elevator at the time of the drill are simply not credible. We therefore find that Complainant has established that the Agency's reasons here are unsupported by the record and were pretext for discrimination based on reprisal. Harassment / Hostile Work Environment Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinnev v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3, 9 (Mar. 8, 1994). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993). To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she 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; (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). The Commission has held that an Agency should not ignore the pattern aspect of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matters contained therein. Garg v. U.S. Postal Serv., EEOC Appeal No. 0120102581 (Sep. 10, 2010) (quoting Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994)). In the instant case, we find that Complainant has established that S1 and S2's actions were related to her disability. We note that Complainant notified S1 and S2 of her impairments through meetings, memoranda, leave slips, and medical documentation. The record reflects that S1 and S2 were clearly aware, as well as many other employees, that Complainant was disabled. Instead of accepting Complainant's disability, S1 and S2 needlessly continued to ask Complainant for more documentation. When Complainant submitted more documentation as requested, S1 and S2 found that the documentation insufficient even though Complainant was visibility in pain and having trouble walking and standing. S1 and S2 denied Complainant reasonable accommodation, which further aggravated her disability. As such, we find that Complainant has established that S1 and S2's actions were related to her disability. Therefore, we find that Complainant has established the first three prongs of the prima facie case of a hostile work environment based on disability. Objectively Hostile or Abusive Work Environment Turning now to the fourth prong, we note that whether or not an objectively hostile or abusive work environment exists is based on whether a reasonable person in complainant's circumstances would have found the alleged behavior to be hostile or abusive. The incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris, 510 U.S. at 17, 21; see also Oncale, 523 U.S. 75 (1998). To ascertain this, we look at the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; whether it was hostile or patently offensive; whether the alleged harasser was a co-worker or a supervisor. See Harris, 510 U.S. at 17, 23. Here, we find that S1 and S2's conduct was sufficiently severe and pervasive to alter the conditions of Complainant's employment and create an abusive working environment. We find that a reasonable person would find that the cumulative effect of S1's actions created a hostile work environment. We note that Complainant had surgery, many doctor's appointments and physical therapy appointments, and submitted leave slips and medical documentation to S1 and S2 reflecting this. Complainant also notified S1 and S2 of her impairments on many occasions through e-mails, memorandums, and meetings. Many employees witnessed Complainant's painful trouble walking, and believed that Complainant was disabled. As such, the record reflects that S1 and S2 disingenuously testified that they were not aware that Complainant was disabled. Instead of accepting Complainant's disability, S1 and S2 needlessly continued to ask Complainant for more documentation. S1 and S2 asserted that Complainant was not disabled and used this as basis to deny Complainant reasonable accommodation, and instead needlessly requested further documentation. As a result, Complainant severely aggravated her knee condition according to her Orthopedic Specialist, requiring further surgeries. Employees also observed Complainant being treated poorly by S1 and S2, and observed Complainant crying as result of their treatment towards her. We note that employees complained of loud arguments between S1 and Complainant, and felt that S1 was badgering Complainant. Liability We now consider whether the Agency is liable for this harassment. In the context of supervisory liability, employers are subject to vicarious liability for unlawful harassment by supervisors. Farragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998). The standard of liability set forth in these decisions is premised on two principles: (1) an employer is responsible for the acts of its supervisors, and (2) employers should be encouraged to avoid or limit the harm from harassment. In order to accommodate these principles, the Court held that an employer is always liable for a supervisor's harassment if it culminates in a tangible employment action. In a case where harassment does not result in a tangible employment action, the employer may prove an affirmative defense comprised of two elements: (1) that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, supra; Faragher, supra. Further, if the harassment is pervasive, it could result in a finding that the agency had constructive knowledge of the harassment. See Padilla v. U.S. Postal Serv., EEOC Appeal No. 0120063761 (Apr., 8, 2008) (supervisor's harassment was so pervasive that the agency should have had constructive knowledge of the harassment). Here, assuming, arguendo, that the hostile work environment did not culminate in a tangible employment action,6 we find that the Agency nonetheless is liable for the harassment because the Agency failed to establish an affirmative defense. Many witnesses observed Complainant's painful troubled walking and felt that Complainant was disabled. Also, employees observed that Complainant was being poorly treated by S1 and S2. We note that the EEO Office Secretary testified that employees "complained of loud arguments between S1 and [Complainant] and S1's constant badgering." ROI, Ex. M, at 10. Thus, we find that the harassment was so pervasive that the Agency should have had constructive knowledge of the conduct. The record does not contain evidence that the Agency took or attempted to take corrective action. The Agency is thus liable for the harassment. Agency's Office of Equal Employment Opportunity Affairs (OEEOA) While there is no evidence that the OEEOA unlawfully interfered with Complainant's EEO claim, we note that based on the Agency's actions it is unclear whether the above represents a systemic problem within the Agency's OEEOA. The Agency is reminded of its duties under 29 C.F.R. §1614.102. Specifically, we note that subpart (c)(2) requires that the agency EEO Director evaluate from time to time the sufficiency of the total agency program for equal employment opportunity and report to the head of the agency with recommendations as to any improvement or correction needed, including remedial or disciplinary action with respect to managerial, supervisory, or other employees who have failed in their responsibilities. EEOC regulations state that each agency shall maintain a continuing affirmative program to promote equal opportunity and to identify and eliminate discriminatory practices and policies. In support of this, the agency is required to, among other things, take disciplinary action against employees who engage in discriminatory policies. See 29 C.F.R. § 1614.102(a)(5). We also remind the Agency that it has a continuing duty to promote the full realization of equal employment opportunity in its policies and practices in every aspect of agency personnel matters. 29 C.F.R. 1614.102. An agency must, among other things, insure that its managers and supervisors promote and enforce a vigorous equal employment opportunity program and not interfere or discourage employees from pursuing their rights. 29 C.F.R. 1614.102(a)(5); Pruette v. U.S. Postal Serv., EEOC Appeal No. 01951567 (Mar. 3, 1998). Here, the record demonstrates that management personnel of OEEOA subjected Complainant to discrimination based on disability and reprisal as noted above. As a result, the OEEOA clearly did not effectuate enforcement of equal opportunity. Contrary to 29 C.F.R. § 1614.102, the OEEOA failed to conduct itself in a manner necessary to effectuate the elimination of discrimination in the workplace. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter to the Agency to take remedial action in accordance with this decision and the Order below. ORDER The Agency is ordered to take the following remedial action: 1. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. § 1614.110. 2. The Agency shall provide a minimum of twenty-four (24) hours of training to the management officials identified as S1 and S2 regarding their responsibilities with respect to eliminating discrimination in the federal workplace. The training must emphasize the Agency's obligations under Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and in particular, its duties regarding reasonable accommodation and retaliation. 3. The Agency shall consider taking appropriate disciplinary action against S1 and S2. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 4. The Agency shall complete all of the above actions within ninety (90) calendar days from the date on which the decision becomes final. 5. 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 of the Agency's calculation of leave due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Office of Equal Employment Opportunity Affairs (OEEOA), in Washington, D.C., 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 (M0815) 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, 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations October 13, 2015 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 resigned from the Agency on September 28, 2007. 3 The Deputy Director failed to send his affidavit to the EEO investigator as instructed. ROI, Ex. G. 4 Complainant contends that she was subjected to reprisal with respect to her previous April 13, 2004, EEO complaint, naming S1 and S2 as responsible management officials. See EEOC Appeal No. 0120064076 (Jan. 14, 2006). 5 In EEOC Appeal No. 0120064076, we assumed arguendo that Complainant was disabled pursuant to the Rehabilitation Act. 6 A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. See Ellerth, supra. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120081848 2 0120081848