U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Denese G.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120141118 Agency No. IRS-12-0707-F DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's December 19, 2013, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission MODIFIES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly dismissed several of Complainant's claims on procedural grounds, and whether the Agency properly found that Complainant did not prove that she was subjected to unlawful discrimination and harassment or denied a reasonable accommodation for her disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GA-11 Revenue Officer within the Agency's Small Business/Self-Employed (SBSE) Division in Miami, Florida. In this position, Complainant is responsible for collecting delinquent accounts and securing delinquent tax returns within the guidelines of the Agency. Complainant has Type 1 Diabetes and uses an indwelling insulin pump that requires frequent glucose testing and adjustments. On or about July 27, 2012, Complainant contacted an EEO Counselor. On September 14, 2012, Complainant filed an EEO complaint in which she alleged that the Agency harassed and discriminated against her on the bases of disability, and in reprisal for prior protected EEO activity when: 1. On June 3, 2010, Complainant received a leave counseling/leave expectations memorandum dated June 2, 2010; 2. Complainant's June 30, 2010 request for a group reassignment was denied; 3. On several occasions since October 2011, Complainant's first level manager (S1) told her to schedule appointments with doctors in the evenings and on weekends; 4. On several occasions since October 2011, S1 told her to be careful with her leave; 5. On December 6, 2011, Complainant received a counseling memorandum for discourtesy/unprofessional behavior during a November 17, 2011 group meeting regarding her text messaging, an unfounded accusation which also resulted in her having to disclose her medical condition to others; 6. Complainant learned on January 11, 2012, that her December 13, 2011 request for a group reassignment was denied; 7. On March 20, 2012, approval of Complainant's request for 116 hours of leave without pay (LWOP) was denied pending her providing a medical release and transmittal documentation; 8. On March 24, 2012, Complainant's work group received reasonable accommodation training only to embarrass and single her out; 9. On April 12, 2012, Complainant received a lowered mid-year performance review for the fiscal year (FY) 2012 rating period; 10. On April 17, 2012, management denied Complainant's February 29, 2012, reasonable accommodation request to excuse herself during meetings to adjust her insulin pump; 11. On July 20, 2012, approval of Complainant's reasonable accommodation request for an additional 30 days of leave under the Family Medical Leave Act (FMLA) was denied pending her providing medical release and transmittal documentation; 12. On July 26, 2012, Complainant learned that management had inappropriately made retroactive changes of her leave from LWOP to FMLA for pay periods 7 through 14; 13. Beginning on August 27, 2012, and continuing, management has failed to respond to her reasonable accommodation request to reassign her to a different first-level manager, use of a private area for medical purposes, and approval for her to eat as necessary during meetings to control her medical condition; 14. On September 7, 2012, Complainant was assigned a disproportionate number of cases to work; and 15. In or about September 19, 2012, Complainant received a departure rating containing an inappropriate comment regarding sending text messages during group meetings.2 The Investigation In an investigative statement, Complainant stated that S1 was advised that she had diabetes when she joined her Group in 2006. Regarding claim 1, Complainant stated the counseling memorandum resulted in her inability to schedule doctor's appointments when necessary and coming to work when ill. Complainant stated that there have been times when she did not have any accumulated leave, but she was not issued a leave counseling memorandum by previous managers nor placed on leave restriction. Complainant further stated that she was unaware of any other employees who received a leave counseling memorandum. Regarding claim 2, Complainant stated that on June 20, 2010, she met with her second-level supervisor (S2) and the Union President regarding the "Black Monday Week" matter.3 Complainant stated that S2 told her that no one wanted to work for S1, and if she were moved that would set a precedent wherein others in the group would have to be moved if they requested it. With respect to claim 3, Complainant stated that in 2010, 2011, and 2012, S1 told her to schedule her doctor appointments in the evenings and on weekends, and that her job required an eight-hour day. She stated that she raised the matter with the Union President, but no action was taken. Regarding claim 4, Complainant stated that she won a union grievance in 2007 regarding non-promotion, which resulted in her reassignment from under S1 to another manager. Complainant further stated that in late 2009, she was placed under S1 again. Complainant stated that S1 told her to be careful with her leave. With respect to claim 5, Complainant stated that she adjusted her insulin pump during a meeting on November 17, 2011, but S1 yelled out for her to stop texting. She further stated that a coworker (C1) then responded that Complainant was using her insulin pump, not texting. Complainant stated that she then brought her pump to S1 to show her what she was doing, and S1 continued with the meeting. Complainant further stated that two weeks later, she received a counseling memorandum for discourtesy/unprofessional behavior. Regarding claim 6, Complainant stated that after receiving a counseling memorandum, she requested that she be transferred out of Collection Group 1300, but her second-level supervisor (S2) denied her request. Regarding claim 7, Complainant stated that regarding her LWOP, she had already disclosed that her request was because of diabetes and had provided medical certification to support the request from her doctor. Regarding claim 8, Complainant stated that the March 2012 reasonable accommodation training made her feel bullied and intimidated because it followed her March 1, 2012 reasonable accommodation request with the Reasonable Accommodation Coordinator (RAC). She stated that no group received such training prior or since that training. Regarding claim 9, Complainant stated that she believed her lowered evaluation rating was in retaliation for her filing and winning a grievance regarding "Black Monday Week." With respect to claim 10, Complainant stated that she requested to be reasonably accommodated in order to be allowed to exit meetings for five minutes to adjust her pump and test her blood sugar because of the November 17, 2011 group meeting incident. She stated that management denied the request on the basis that S1 gave breaks and lunches during group meetings, and she would have to wait until that time so that she would not create a disruption. For claim 11, Complainant stated that she made a request for 30 days of additional leave on July 19, 2012, and provided all documentation necessary to make a determination; however, she was told it could not be approved until she provided updated medical documentation. With regard to claim 12, Complainant stated that she ended up owing money although she was in LWOP status. She further stated that she filed an appeal and was given a reprieve until she returned to work. Regarding claim 13, Complainant stated that the Agency did not respond to her request: to be reassigned to another first-level manager because of discrimination; for a private room for medical purposes; and to eat as necessary during meetings. For claim 14, Complainant stated that before she went on medical leave, S1 told her that she would get all or most of her cases back because it was not fair that the other Revenue Officers would have to work her cases. Complainant stated that she was given a list of about 25 cases when she returned, which were cases she worked on prior to her medical leave. Complainant stated that she asked her new manager (S1.2) about this, and S1.2 said that S1 transferred the cases to him so that they could be assigned back to Complainant. Complainant stated that normally 10 cases are assigned, and then every other week an additional five to seven cases are assigned. Regarding claim 15, Complainant stated that management put an inappropriate comment regarding sending text messages on her departure rating. Regarding claim 1, S1 stated that Complainant was issued the counseling letter because her leave balance indicated a problem with her use of annual and sick leave, and Complainant requested 256 hours of annual leave on January 29, 2010. She stated that the memorandum was necessary to clarify established guidelines for requesting leave under the National Agreement. S1 stated that she issued similar letters to two other employees on May 26, 2010 and June 9, 2010. S1 stated that she did not learn of Complainant's medical condition until after she issued her a leave counseling/leave expectations memorandum. She stated that she then provided Complainant with EEO guidelines to request a reasonable accommodation because of her medical condition. Regarding claim 2, management stated that Complainant's request to be reassigned was denied because S2 found that Complainant had not been subjected to any unfair practice, and another employee was likewise denied a request for reassignment. Regarding claim 3, S1 stated that Complainant was not advised to schedule her doctor's appointments in the evenings or on weekends, but she instructed employees to calendar field calls, office days, flexi days, and leave according to the needs of their inventory. Regarding claim 4, S1 stated that Complainant was not instructed individually to be careful about her leave, but during group meetings, the group was advised to use a calendar system to follow-up on required activities. She stated that this calendar system should take into consideration leave, Revenue Officer of the Day duties, field days, training, and meetings. Regarding claim 5, S1 stated that Complainant was counseled for discourteous conduct because during a November 17, 2011 group meeting, she disregarded the group meeting rules by texting after she was asked to stop doing so. She stated that after Complainant finished texting, she grabbed lipstick from her purse and started applying it while the group worked on an assignment. S1 further stated that she took Complainant outside the room to remind her about texting during a meeting, but Complainant never clarified that she was adjusting her insulin pump or that S1 made an error in calling the pump a telephone. She stated that during lunchtime, Complainant lifted her shirt to show an insulin pump to a coworker. S1 further stated that after lunch, and during the meeting, Complainant made sidebars and gestures expressing disapproval of an instruction S1 had given her, which created a negative impact on discipline during the meeting. Regarding claim 6, S2 stated that Complainant's reassignment request was denied because her situation did not warrant a transfer out of the group at that time. Regarding claim 7, S1 stated that Complainant's LWOP request was not denied, but her March 19, 2012, Form 71 Request for Leave or Approved Absence did not have medical certification. S1 stated that the national agreement required employees taking basic FMLA leave to submit a Form-WH-380-E Certification of Health Care Provider for a Serious Health Condition and a Form 9611 FMLA application. She further stated that the medical certification was provided on March 26, 2012, and on April 17, 2012, Complainant was approved for various categories of leave, including 116 hours LWOP, for the period April 2, 2012, to July 20, 2012. Regarding claim 8, S1 stated that training was necessary to clarify the legal and policy requirements for reasonable accommodation requests, and her group had several employees who needed clarification about EEO services. Regarding claim 9, S1 stated that the midyear review for Complainant on April 10, 2012 revealed an overall increase from her last annual evaluation on October 12, 2011, from a 3.40 overall rating to 3.60. S1 further stated that in the rating factor of Taxpayer Rights, Complainant's rating was decreased from Exceeds to Meets because she failed to provide "Pub 1"4 and to protect the right to representation on cases reviewed. She stated that during the midyear rating period, Complainant decreased her performance from always to generally with respect to this factor. Regarding claim 10, S1stated that RAC advised her that the Agency's internal process provides reasonable accommodations for employees in work status, but Complainant had been in a non-work status since March 26, 2012, with an expected return date of August 1, 2012. Regarding claim 11, S1 stated that Complainant requested an extension of LWOP under FMLA, which was referred to RAC. She stated that the medical documentation provided by Complainant was dated March 12, 2011, although it was for leave covering March 2012 to July 23, 2012. S1 further stated that Complainant's accommodation request for LWOP under FMLA was approved on July 27, 2012, after updated medical documentation was received. Regarding claim 12, S1 stated that the timekeeper forgot to change the LWOP program code from 59811 to 59812, and corrections to Complainant's timesheets were made on July 26, 2012. S1 also stated that in pay period 10, Complainant asked for advance annual leave for May 7, 2012, but her request exceeded the leave she would have accrued during the remainder of the leave year. S1 stated that she instructed the timekeeper to correct the program code for advance annual leave to reflect "LWOP FMLA." S1 further stated that Complainant did not advise her of the situation of owing money to repay, but LWOP is a non-pay status. Regarding claim 13, S1 stated that she did not recall any other requests for reassignments, except for those made in June 2010 and December 2011. S1 further stated that Complainant never asked her for permission to eat during any particular meeting, and employees were able to eat and take breaks as needed. S1 stated that she never denied Complainant's request to eat during meetings because she never made such a request. S2 stated that Complainant's request for a private room to use for medical purposes and approval to eat during group meetings was responded to on September 4, 2012, through the EEO Specialist. S2 stated that there are various places in the office for Complainant to use for medical purposes such as the ladies' lavatory, which has a couch, and the nurse's station, which has a room used for nursing mothers. S3 further stated that there was no prohibition on eating during meetings, and food was brought to almost all meetings. S2 also stated that Complainant had the option to telework pursuant to a telework agreement. Regarding claim 14, Complainant's first-line supervisor beginning September 2012 (S1.2) stated that Complainant received 23 cases when she returned to work so that she could begin working again. He further stated that Revenue Officers normally maintain 53 to 79 cases. Regarding claim 15, S1 stated that the November 17, 2011, texting incident was an appropriate matter to reference in Complainant's evaluation. The record contains a Leave Counseling/Leave Expectations letter to Complainant dated June 2, 2010. In the letter, S1 stated that Complainant had used 48 hours of annual leave and 38 hours of sick leave since her February 1, 2010 reassignment to the group, and she had 63 hours of annual leave and three hours of sick leave to available to use. S1 further stated that Complainant had kept her updated on her leave situation, but S1 encouraged her to be cautious in planning leave usage and to maintain a balance that would cover occasional brief/emergency absences. S1 also stated that she expected Complainant to be at work daily and for all annual leave to be requested and approved in advance, except in an emergency. S1 concluded that Complainant must make every effort to improve her attendance, schedule her leave in advance, and to notify her if an emergency or illness prevented her from reporting to work. In a letter dated June 10, 2010, Complainant stated that she is a Type I Diabetic, and she was using her leave appropriately as an individual covered by the Americans with Disabilities Act (ADA). Complainant further stated that because of her condition, she requires more frequent doctor visits and laboratory work than the average person. In a letter dated June 30, 2010, S1 acknowledged that Complainant's July 10, 2010 letter was a request for reasonable accommodation because of her diabetes. S1 advised Complainant to submit a request for reasonable accommodation to RAC. The record also contains a memorandum to Complainant from S1 dated December 2, 2011. In this memorandum, S1 stated during previous group meetings, she requested that the group turn off or place telephones in vibrate mode and not to text during meetings. S1 stated that Complainant disregarded the rules and continued texting after being asked to stop, which was discourteous and unprofessional. S1 concluded that she expected Complainant's full attention during group meetings, and telephone calls and texting are not allowed. In a letter to S1 dated December 13, 2011, Complainant maintained that S1 accused her of texting on several occasions when she was adjusting her insulin pump, not texting. Complainant further stated that this occurred again on November 17, 2011, and when S1 confronted her, she stopped entering information into her pump and pulled above the table to show S1 what she was doing. Complainant also stated that she had a right to attend to her medical needs to avoid a diabetic seizure in a manner that is as discreet as possible. Additionally, Complainant stated that during the group meeting, she grabbed lip gloss and applied it to her lips while keeping her head bowed because her lips were dry and cracked, which did not cause any disruption at the meeting. Complainant also denied making any disapproving gestures or side bar remarks toward S1. The record reveals that on an Agency reasonable accommodation request form dated February 29, 2012, Complainant asked the Agency to be able to excuse herself "from meetings . . . to adjust pump, check my blood sugar, eat if necessary to avoid a hypo or hyperglycemic reaction." ROI, p. 944. Complainant further stated that she must be able to adjust her pump and eat when necessary in order to avoid high and low blood sugar. The form also had a section completed Complainant's physician (Dr) wherein Dr stated that Complainant must be indefinitely able to check her blood sugar, adjust her insulin pump settings, and consume food because of her diabetes. In a letter signed March 12, 20125, Dr informed the Agency that Complainant had reported that she was being reprimanded at work by her immediate supervisor because she constantly needed to monitor her sugar and give herself boluses before meals, which were medically necessary for her to appropriately measure her carbohydrates and give herself the appropriate insulin. Dr also stated that Complainant had been having problems with weight loss and diabetic dyscontrol, which might have been related to her work situation. Therefore, Dr recommended a medical leave of absence so that Complainant could be better able to control her diabetes and manage her weight loss. "Please consider this a letter of medical necessity to recommend that [Complainant] take a short term medical leave of absence due to weight loss and uncontrolled insulin dependent diabetes, and a work environment that is unable to make the appropriate concessions considering her chronic medical conditions," Dr. concluded. ROI, p. 169. In a letter to management entitled "Medical Leave" and dated March 19, 2012, Complainant requested advanced annual leave for 168 hours, advanced sick leave for 240 hours, and LWOP for 116 hours. Complainant stated that the leave was requested per her doctor's recommendation. In a letter dated March 20, 2012, S1 approved Complainant's request for annual leave and advance sick leave, but deferred approval of her request for LWOP pending the submission of a standard FOH release that would allow a Federal Occupational Health (FOH) physician to discuss the matter with Complainant's doctor; a medical employability form; an FMLA form; and certification of health care provider.6 On March 26, 2012, Complainant submitted the requested forms and documentation. Specifically, in a certification of health care provider form dated March 26, 2012, Complainant's Dr notified the Agency that Complainant was an insulin-dependent diabetic who uses an indwelling pump. Dr further stated that Complainant had been experiencing health problems and glycemic dyscontrol because of "a lack of cooperation from her employer." Dr further stated that it was clear that Complainant needed tighter control of her blood sugar, but unfortunately, could not get the necessary cooperation from work. ROI, p. 438 (Bates No.). Therefore, Dr recommended that Complainant be granted a temporary leave of absence from work for approximately six months. On April 17, 2012, S1 approved Complainant's request for 116 hours of LWOP under the FMLA from June 23, 2012, until July 23, 2012. S1 further notified Complainant that in an effort to assist Complainant with her return to normal duties, she would like to inform her of accommodations in place by the Agency. Specifically, S1 stated that "all employees" are given breaks and lunchtime as part of a normal tour of duty and during group meetings; a place to rest if needed; a break room equipped with refrigerators, ovens, and microwaves; modified work schedules; large screen computer monitors or other assistive devices; and a private area to administer medication upon request. S1 concluded that by clarifying the current accommodations available to Complainant, she expected her to overcome any misunderstanding about her position about Complainant's medical condition. In a letter from RAC dated April 23, 2012, RAC stated that because Complainant had been in non-work status since March 26, 2012, and was not scheduled to return to work until August 1, 2012, her request for reasonable accommodation was being closed without further action because the Agency's internal process provides reasonable accommodation for employees in work status.7 RAC further stated that upon Complainant's return to work, she could contact RAC or her manager if she still needed reasonable accommodation. In a letter to S1 dated July 20, 2012, Complainant's attorney stated that in addition to a request for leave under the FMLA, Complainant's request to extend leave constituted a request for a reasonable accommodation because the request is necessary to accommodate diabetes. The attorney further stated that he would review materials sent by S1 to determine if it is appropriate under the ADA to provide requested additional medical documentation, and any leave from July 23, 2012 forward may be reclassified as LWOP should additional medical documentation be provided. In a letter from Dr to the Agency dated July 23, 2012, Dr requested that Complainant be allowed to take another 60 days off work from the date of the letter. Dr stated that at that time, Complainant's blood sugar was not well-controlled, and he felt that her diabetes would be better controlled if she were allowed to take time off work. In response to Complainant's request,8 the Agency asked Complainant to provide updated medical documentation and recommended that she complete a medical release form. Complainant did not submit a release, but provided the Agency with a July 23, 2012, letter from her physician recommending that she remain on leave for an additional 60 days. In a letter to Complainant dated July 27, 2012, S1 approved Complainant for 272 hours of leave under FMLA, beginning on July 23, 2012. In a letter dated August 27, 2012, Complainant's attorney stated that it was clear that S1 did not understand the needs of people with diabetes and had been unable to accommodate Complainant. The attorney requested that Complainant be assigned a different supervisor who will provide her with necessary reasonable accommodations. The attorney further requested that Complainant be granted use of a private area and time to check her blood sugar levels as needed, along with the ability to leave meetings, discussions, conferences, events in order to do the same; time to adjust her insulin pump or inject insulin as needed as well as the ability to leave meetings and events to do the same; and the ability to eat as necessary during meetings, discussions, conferences, events so that she could avoid hypoglycemic or hyperglycemic reactions. The attorney's letter was accompanied by an August 27, 2012 statement from Dr, who asserted that in order for Complainant to perform her work duties upon return to work, she must be allowed to check her blood sugar when needed up to seven or more times per day; eat when she needs to; and to adjust her insulin pump or inject insulin as needed. In a letter to S2 dated October 19, 2012, Complainant's attorney stated that although the Agency granted Complainant's request to be reassigned to another supervisor, there had been no response to her other requests (use of private area and time to check her blood sugar; use of a private area and time to adjust her insulin pump or inject insulin and the ability to leave meetings; and ability to eat as necessary during meetings). The attorney requested that Complainant be able to use a private area to check her blood sugar levels as needed; to use a private area to adjust her insulin pump; and the ability to eat as necessary to regulate blood sugar levels. In a letter to Complainant's attorney dated January 3, 2013, S2 stated that Complainant's request for a management reassignment was granted around October 2012. S2 further stated that a private nursing room located in the Miami Federal Building was available for Complainant's use as needed, as well as a nurse in Room 1312 and a women's lavatory located on the seventh floor with a couch near Complainant's workstation. S2 also stated that there was no prohibition on eating snacks in the workplace, and Complainant could eat snacks as needed. The record also contains a copy of Complainant's mid-year evaluation for FY 2012. In that evaluation, Complainant received an "Exceeds" mid-year 2012 rating in the Employee Satisfaction (Employee Contribution) subcategories of Workplace Intervention and Workplace Involvement, and "Meets" in the subcategory of Workplace Environment. The evaluation noted that Complainant's performance increased from Meets to Exceeds in the first two subcategories, but decreased in the third subcategory. Additionally, in this category, S1 noted that "sending text messages during group meetings are not permissible," and "group meeting's agenda provides the anticipated time for breaks and lunch." ROI, p. 128 (Bates No.) In Customer Satisfaction (Knowledge), Complainant received ratings of Meets in the subcategories of Taxpayer Rights, Case Analysis, and Protection of Public Interest. The evaluation stated that there were several cases in Complainant's inventory for which she needed to pursue assets/income, and she needed to maintain control of her inventory by using enforcement actions. In Customer Satisfaction (Application), Complainant was rated Exceeds in Responsive, Courteous Service and Communication, and Meets in Compliance. The evaluation stated that Complainant needed more consistency in monitoring on-going deposits, return filing, and cross compliance. In Business Results (Quality), Complainant received a rating of Meets in the subcategory of Investigation, and Exceeds in Problem Solving Techniques and Documentation. In Business Results (Efficiency), Complainant was rated Meets in Timely Actions and Planning and Scheduling, and Exceeds in Inventory Management. The evaluation stated that Complainant needed to be more consistent with timely follow-up actions. The record also contains a copy of the departure evaluation issued to Complainant by S1 on September 12, 2012. In the evaluation, Complainant is rated Exceeds Fully Successful overall, with an average CJE score of 3.60. Under the Employee Satisfaction-Employee Contribution factor, S1 stated the following, pertinent part: During this mid-year rating period, you were reminded of the established group meetings ground rules. These ground rules included but not limited to respect for other opinions, participation during workshops. The established ground rules indicated that if a group member received a telephone call, the member should excuse himself or herself from the group meeting to attend these calls if an emergency emerged. Sending text messages during groups meetings are not permissible. The group meeting's agenda provides the anticipated time for breaks and lunch. You generally support a workplace environment free from harassment and discrimination. You generally work cooperatively with others, and shares knowledge/skills with others in the workplace. To maintain an exceed rating in this CJE 1 C, you need to maintain a strong commitment to the mission and the group in all actions. During this midyear, your performance increased from meets to exceed in CJE 1A and 1B, and decreased in CJE 1C. If your performance does not improve by the end of the rating period, you will receive a meets in CJE 1C. ROI, p. 515. Final Agency Decision 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 Equal Employment Opportunity Commission 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). In that decision, the Agency dismissed claims 1 through 4 on the basis that they were not counseled and were not like or related to matters that were timely raised in counseling. The Agency dismissed claims 5 through 10 on the basis they were initiated by untimely EEO Counselor contact. However, because the entire complaint was investigated, the Agency also addressed the merits of Complainant's entire complaint. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination/harassment as alleged, or that she was denied a reasonable accommodation for her disability. CONTENTIONS ON APPEAL On appeal, Complainant reiterates her allegation that the Agency denied her requests for reasonable accommodations by delaying the provision of the accommodations. Complainant maintains that instead of immediately providing her with effective accommodations, the Agency improperly requested additional information and documentation. Complainant argues that the Agency failed to engage in the interactive process in good faith, which deprived her of a reasonable accommodation that would have allowed her to perform the essential functions of her job. The Agency requests that we affirm its final decision. Specifically, the Agency maintains that it engaged in the interactive process with Complainant when on March 20, 2012, S1 approved her sick and annual leave requests and asked her to provide medical justification to FOH for her FMLA request. The Agency further maintains that is reasonably accommodated Complainant on April 17, 2012, when S1 approved Complainant's FMLA request. The Agency further argues that it approved Complainant's FMLA leave requests within a reasonable amount of time in light of the fact that she had already been approved for leave during that period of time, and there is no evidence that she suffered harm because of the Agency requesting documentation to support her FMLA requests. Regarding Complainant's other reasonable accommodation requests, the Agency maintains that on April 17, 2012, while Complainant was still on extended leave, S1 indicated that she could take breaks and lunch during her normal work hours, and that the Agency would provide a private location for her to administer medication. The Agency further notes that on April 23, 2012, RAC informed Complainant that she was closing her reasonable accommodation request because she was on extended leave, but Complainant could reinitiate the request upon her return to work. The Agency further contends that there is no evidence that Complainant was ever denied the opportunity to take a break or eat at work after she made her reasonable accommodation request. 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 Procedural Dismissals The Agency dismissed claims 1 through 4 on the basis that these matters were not counseled and were not like or related to claims that were timely raised in counseling. The Agency dismissed claims 5 through 10 on the basis they were initiated by untimely EEO Counselor contact.9 However, upon review, we find that Complainant's complaint consists of an overall allegation that she was subjected to a hostile work environment. Claims 1 through 10 are incidents within Complainant's overall ongoing harassment claim,10 and as such, are like and related to the remaining claims that were initiated by timely EEO Counselor contact. Moreover, even under a disparate treatment theory of discrimination, we find that the timely counseled matters are like and related to claims 1 through 10. The Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002). In addition, Complainant's complaint largely consists of allegations that she was denied reasonable accommodations throughout 2012. Because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it. See EEOC Compliance Manual Section 2, "Threshold Issues," No. 915.003, at 2-IV.C.1.a (July 21, 2005). In this case, Complainant contacted an EEO Counselor on July 27, 2012. Some of the incidents in Complainant's ongoing harassment complaint occurred within 45 days of her initial Counselor contact. Therefore, we find that her complaint was initiated by timely EEO Counselor contact. Therefore, we REVERSE the Agency's dismissal of claims 1 through 10. Because these matters were investigated, we will address the merits of these claims below. 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 Chap. 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"). Reasonable Accommodation: Claims 2, 3, 6, 7, 10, 11, and 13 Claims 2, 3, 6, 7, 10, 11, and 13 are most appropriately analyzed as alleged denial of reasonable accommodations for a disability. Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (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 her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act ("EEOC Enforcement Guidance on Reasonable Accommodation"), EEOC Notice No. 915.002 (Oct. 17, 2002). An individual with a disability is ""qualified" if she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Qualified Individual with a Disability We note that, the events in this case arose after January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which expanded the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Under EEOC regulations implementing the ADAAA, 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 record of such an impairment; or (3) is regarded as having such an impairment. See 29 C.F.R. § 1630.2(g)(1)-(3). A physical or mental impairment is defined as: (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or (2) any mental or psychological disorder, such as an intellectual disability (formerly termed 'mental retardation'), organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. § 1630.2(h) (2011). The impairment must substantially limit a complainant, or significantly restrict her as to the condition, manner, or duration under which he performs a particular major life activity as compared with the performance of the average person in the general population. See 29 C.F.R. § 1630.2(j)(1)(ii). Major life activities include such functions as eating, caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i)(1)(i). Major life activities also include the operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. 29 C.F.R. § 1630.2(i)(1)(ii). In this case, Complainant has been diagnosed with Title 1 Diabetes (Juvenile Diabetes) and uses an insulin pump to regulate her blood sugar. Further, the record reveals that because of her condition, Complainant's blood sugar levels are greatly impacted by what she eats, and she must be meticulous about regularly checking her blood sugar levels and eating at specific intervals of time. The record further indicates that Complainant is susceptible to hypoglycemic and hyperglycemic episodes in response to food consumption and other factors. Thus, we find that Complainant is an individual with a disability because she is substantially limited in the major life activity of eating. See Parks v. U.S. Postal Serv., EEOC Appeal No. 0320070127 (July 28, 2008) (petitioner with diabetes who used insulin pump is an individual with a disability); Jambora v. U.S. Postal Serv., EEOC Appeal No. 07A40128 (May 16, 2006) (diabetic Complainant who must guard about hypoglycemic episodes substantially limited in major life activity of eating). Regarding the issue of whether Complainant is qualified, the record reflects that Complainant successfully performed the essential functions of her position, as reflected by her "fully successful" performance annual evaluation in FY 2011, and "exceeds fully successful" rating in FY 2012. See Latarsha A. v. Federal Energy Regulatory Commission, EEOC Appeal Nos. 0120123215, 0120131079 (Mar. 15, 2016). Moreover, there is no evidence that Complainant was unable to perform any duties of her position. Consequently, we find that Complainant is a qualified individual with a disability. To the extent that claim 3 constitutes a claim of denial of a reasonable accommodation, we note that S1 denies that she told Complainant to schedule doctor's appointments in the evenings and on weekends. Moreover, Complainant has not provided any evidence that she was actually denied requested leave for such appointments. Consequently, we do not find that she was denied a reasonable accommodation regarding this particular matter. Claims 2 and 6 pertain to Complainant's request for reassignment to a new supervisor. Regarding claim 2, Complainant maintained that she met with management to ask for reassignment because of the "Black Monday Week" matter and because of continued harassment. However, there is no evidence that Complainant's linked her request for a new supervisor to her disability at that time. However, with regard to claim 6, the record reflects that Complainant linked her December 2011 request for a new supervisor to S1's failure to provide her with reasonable accommodations with regard to her diabetes. Nevertheless, the Commission has held that an employer does not have to provide an employee with a new supervisor as a reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation, at Question 33 (March 1, 1999). Consequently, we do not find that Complainant was denied a reasonable accommodation with regard to her specific request for a new supervisor (claims 2 and 6). However, we now address the merits of Complainant's broader claim that she was denied other requested accommodations. With regard to claims 10 and 13, on or about February 29, 2012, Complainant asked the Agency to be able to excuse herself from meetings to adjust her insulin pump, check her blood sugar, and eat if necessary to avoid a hypoglycemic or hyperglycemic reaction. ROI, p. 944. At that time, Complainant also provided medical documentation from her physician that verified that Complainant must be allowed to regularly check her blood sugar, adjust her insulin pump settings, and consume food because of her diabetes. Additionally, on or about August 27, 2012, asked the Agency to allow her to use a private area and to have time to check her blood sugar levels as needed, along with the ability to leave meetings, discussions, conferences, events in order to do the same; to have time to adjust her insulin pump or inject insulin as needed as well as the ability to leave meetings and events to do the same; and to eat as necessary during meetings, discussions, conferences, events so that she could avoid hypoglycemic or hyperglycemic reactions. Upon review, we note that providing employees with private areas to test blood sugar areas or to administer insulin injections and granting them breaks to eat, drink, or test blood sugar levels as types of accommodations employees with diabetes often need. Equal Employment Opportunity Commission, Questions and Answers About Diabetes in the Workplace and the Americans with Disabilities Act (ADA), Question 10 (Oct. 29, 2003).11 Complainant's requests are consistent with these types of accommodations. The Agency has not provided any evidence that the requested accommodations constituted an undue burden on the Agency. Consequently, we do not find that the requested accommodations constitute an undue burden on the Agency's operations. The Agency maintains that it accommodated these requests when S1 assured Complainant on April 17, 2012 that she could take breaks and lunch during her normal work hours, and that the Agency would provide a private location for her to administer medication. However, even if we view S1's correspondence with Complainant on April 17, 2012 as responsive to Complainant's requests, we nonetheless find that the Agency denied Complainant a reasonable accommodation. In so finding, we note that Complainant's February 2012 medical documentation indicated that failure to provide the accommodations could result in Complainant experiencing severe medical consequences, including hypoglycemic or hyperglycemic reactions. As such, Complainant's request revealed that she needed the requested accommodations immediately and without significant delay. In fact, the necessity of immediately responding to these requests for reasonable accommodations is underscored by the fact that the Agency's inaction or delay had a negative impact on Complainant. For example, in a letter signed March 12, 2012, Dr reported that Complainant was being reprimanded at work by her immediate supervisor because she constantly needed to monitor her sugar and give herself insulin boluses before meals, which were medically necessary for her to appropriately measure her carbohydrates and give herself the appropriate insulin. Dr also reported at that time that Complainant was experiencing problems with weight loss and diabetic dyscontrol, which were possibly related to her work situation. Moreover, we find that S1's assurances to Complainant on April 17, 2012 did not provide her with an effective reasonable accommodation. In so finding, we note that, S1 merely stated that Complainant would be provided with accommodations that were already provided to all employees, such as breaks and lunch, a resting place, a break room with refrigerators, ovens, and microwaves, modified work schedules, and a private area to administer medication. However, S1's response did not address the specific needs of Complainant that were revealed in her request for reasonable accommodation. S1's generic assurance that all employees can take break and lunch during work hour and meetings does not address the distinct need for Complainant to regularly monitor and control her blood sugar during meetings and other work events, or to excuse herself from meetings and work events for medical care. Specifically, S1 did not provide any assurance that Complainant could leave meetings as needed to monitor and regulate her blood sugar. In fact, in Complainant's midyear 2012 evaluation, S1 stated that "the group meeting's agenda provides the anticipated time for breaks and lunch," which reflects that Complainant would only be allowed to take breaks that were scheduled for all employees during meetings, instead of as she needed them. Complainant had particular medical needs that the Agency should have addressed with specific, individualized accommodations, instead of generic responses about amenities provided to all employees. Consequently, we find that S1's response did not provide Complainant with an effective reasonable accommodation. With regard to the Agency's assertion that it accommodated Complainant through approved leave, we note that an employer should respond expeditiously to a request for reasonable accommodation. EEOC Enforcement Guidance on Reasonable Accommodation, at Question 10 (Oct. 17, 2002). Therefore, the Commission has held that failure to respond to a request for accommodation in a timely manner may result in a finding of discrimination. See Shealy v. EEOC, EEOC Appeal No. 0120070356 (April 18, 2011); Villanueva v. Department of Homeland Security, EEOC Appeal No. 01A34968 (August 10, 2006). In this case, we are persuaded that the Agency's inaction and delay drove Complainant out of the workplace for a significant period of time. After all, she had not received the requested reasonable accommodations from the Agency, and the Agency's inaction was negatively impacting her health. Faced with negative impacts on her health, Complainant had no recourse but to ask for leave. Further, the Agency had an opportunity to mitigate this negative impact on Complainant through its Reasonable Accommodation Coordinator, but instead, used Complainant's leave status as an excuse to halt the interactive process that could have provided her with reasonable accommodations at work. We determine that Complainant's need for leave was a foreseeable consequence of the Agency's failure to expeditiously provide her with a reasonable accommodation. As such, the Agency cannot credit itself for providing her with leave that Complainant likely would not have needed if it had promptly and appropriately responded to her reasonable accommodation request. Additionally, we observe that, absent undue hardship, an agency should provide reasonable accommodations that permit an employee to keep working rather than choosing to put the employee on leave. In so finding, we note that 29 C.F.R. § 1630.1 provides that the primary purpose of Title I of the ADA, as amended by the ADAA, is to provide equal employment opportunities for individuals with disabilities. Leave removes an employee from the workplace and therefore denies the employee the opportunity to keep working with reasonable accommodation. Next, we note that a reasonable accommodation must be effective. If a reasonable accommodation -- such as breaks to test blood sugar levels and address any fluctuations -- permits an employee to perform the essential functions of her position, then that accommodation is effective. Leave is not effective in permitting immediate performance of essential functions of a position. While an employer may choose between effective accommodations,12 forcing an employee to take leave when another accommodation would permit an employee to continue working is not an effective accommodation. See Mamola v. Group Mfg. Services, Inc., 2010 WL 1433491 (D. Ariz. April 9, 2010) (unpaid leave may not be a reasonable accommodation when an employee specifically requests another accommodation that would allow him or her to perform the essential functions of the position without missing work); Woodson v. Int'l Bus. Machines, Inc., 2007 WL 4170560, at 5 (N.D. Cal. Nov. 19, 2007) (leave is sufficient as a reasonable accommodation only if other accommodations in a job would be ineffective). In this case, the Agency failed to provide Complainant with requested accommodations that would have allowed her to continue working. Consequently, Complainant was forced to take leave, much of it unpaid. Further, although the Agency maintains that it also provided Complainant with reasonable accommodations upon her return to work from leave in September 2012, we are not persuaded that Complainant was even provided reasonable accommodations by then. While S2 maintains that the EEO Specialist informed Complainant's attorney that her requested accommodations would be provided to her when she returned to work, there is no statement from the EEO Specialist or documentation corroborating S2's claim. Consequently, we are not persuaded that S1's assertions are true. Additionally, in a letter dated October 19, 2012, Complainant's attorney indicated that management still had not responded to Complainant's request for accommodations related to her diabetes (use of private area and time to check her blood sugar; use of a private area and time to adjust her insulin pump or inject insulin and the ability to leave meetings; and ability to eat as necessary during meetings). Therefore, we find that the Agency erred when it found that Complainant did not prove that she denied a reasonable accommodation with respect to claims 7, 10, 11, and 13. Complainant has requested compensatory damages. Under certain circumstances, an agency may avoid liability for compensatory damages if it acted in good faith in its effort to reasonably accommodate an employee. See EEOC Enforcement Guidance on Reasonable Accommodation, No. 915.002, at footnote 24 (Oct. 17, 2002). For example, in Mees v. U.S. Postal Serv., EEOC Appeal Mo. 01971964 (Sept. 11, 2000), the Commission found that the Agency did not make a "good faith" effort to reasonably accommodate Complainant, noting that the Agency failed to demonstrate that it conducted a search for an accommodation for Complainant. In this case, we note that the Agency was well aware of the risk of harm to Complainant if it did not provide her with the requested accommodations in an expeditious mature. Yet, the Agency delayed responding to her request until after Complainant suffered negative medical consequences and had no choice but to take extended leave. Further, the Agency still had not provided Complainant with reasonable accommodations upon her return to work several months later. As such, we conclude that the Agency did not act in good faith in this case, and is liable for Complainant's compensatory damages. Disparate Treatment and Harassment: Claims 1, 4, 5, 8, 9, 12, and 15 In order to prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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). Claims 5 and 15 In claims 5 and 15, Complainant contends that S1 admonished or counseled her in writing for texting during a meeting, although S1 was immediately informed that she was actually adjusting her insulin pump because of her medical condition. We find that Complainant has established a prima facie case discrimination because these allegations create an inference of discrimination on the basis of disability discrimination and reprisal. In so finding, we note that Complainant engaged in EEO activity when she protested unlawful discrimination by informing S1 that she was adjusting her insulin pump during the meeting, S1 was aware of this EEO activity, and there is a nexus between Complainant's EEO activity and the counseling and departure rating that referenced her conduct during the meeting. We further find that the Agency provided legitimate, non-discriminatory explanations for its actions. Specifically, S1 contends that she issued Complainant the counseling memorandum because Complainant texted during a group meeting. S1 further contends that she mentioned this incident in Complainant's departure rating because it was an appropriate issue to record in a departure rating. However, we note that Complainant maintains that she was adjusting her insulin pump, not texting, during the meeting. Significantly, C1, who sat next to Complainant during the meeting, attested that Complainant was administering insulin through her insulin pump, and when S1 accused her of texting, he immediately intervened and informed S1 that Complainant was adjusting her insulin pump. Additionally, C1 stated that Complainant's telephone was not in her hand during the meeting, and Complainant showed S1 the pump she was holding in her hand. Further, we note that other coworkers affirmed that Complainant immediately informed S1 that she was adjusting her insulin pump, not texting during the meeting. We also note that in a memorandum to S1 dated December 7, 2011, Complainant rebutted S1's counseling letter and asserted that she was adjusting her insulin pump, not texting. In light of corroborating statements, and Complainant's contemporaneously written account, we are persuaded that Complainant's version of events is accurate. This conclusion should have also been apparent to S1 during the relevant time period because S1 was immediately informed that Complainant's actions were a medical necessity, not discourteous actions or texting. S1 certainly cannot credibly claim that she was not aware that Complainant was using her insulin pump during the meeting. Yet, S1 inexplicably chose to counsel Complainant and reference this matter in her 2012 midyear review and departure rating. We are persuaded that unlawful discrimination is the most likely explanation for S1's unreasonable actions with regard to these matters. Therefore, we find that Complainant proved that she was subjected to disability discrimination and reprisal when S1 issued the counseling letter and admonished her in the departure rating. Claims 1, 4, 8, 9, 12, and 14 For purposes of analysis, and without so finding, we find that Complainant established a prima facie case of discrimination and is a qualified individual with a disability with regard to the remaining claims.13 Nonetheless, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions, as recounted above in detail. For example, for claim 1, S1 stated that she issued Complainant the counseling memorandum because her leave balance indicated a problem with her use of annual and sick leave, and Complainant requested 256 hours of annual leave on January 29, 2010. She stated that the memorandum was necessary to clarify established guidelines for requesting leave under the National Agreement. For claim 4, S1 stated that Complainant was not instructed individually to be careful about her leave, but during group meetings, the group was advised to use a calendar system to follow-up on required activities. Regarding claim 8, S1 stated that training was necessary to clarify the legal and policy requirements for reasonable accommodation requests, and her group had several employees who needed clarification about EEO services. In response to claim 9, S1 stated that Complainant's rating was decreased from Exceeds to Meets because she failed to provide "Pub 1"14 and to protect the right to representation on cases reviewed. Regarding claim 12, S1 stated that S1 stated that the timekeeper forgot to change the LWOP program code from 59811 to 59812, and corrections to Complainant's timesheets were made on July 26, 2012. In response to claim 14, S1.2 stated that Complainant received 23 cases when she returned to work so that she could begin working again. Upon review, we note that S1 issued similar counseling memoranda about attendance to leave to two other employees during the relevant time period. Although there does not seem to be any evidence that Complainant's leave use had been excessive at that point, several employees provided statements in which they attested that S1 was a stickler with regard to time and attendance. We further note that there is no evidence presented that S1 was aware that Complainant was using leave during this period because of her medical condition. After the memorandum was issued, Complainant submitted a memorandum to S1 disclosing her need for leave because of her diabetes, but this was after the fact.15 With regard to Complainant's allegations that the group was provided with reasonable accommodation training, we find no evidence that this training was directed at Complainant. Instead, the record reveals that this training was provided as part of the Agency's good faith efforts to provide employees with knowledge of their EEO rights. With regard to Complainant's midyear rating, we note that Complainant's midyear 2012 rating was an improvement over her previous rating. Further, Complainant has not shown that she was entitled to a higher rating through the period. Finally, with regard to the S1.2's assignment of cases, the record reflects that Complainant was actually assigned fewer cases than her counterparts, and most of the cases she assigned had been in her inventory before she went on extended leave. Consequently, we find that the Agency properly found that Complainant was not subjected to unlawful disparate treatment regarding these matters because she failed to prove that the Agency's legitimate, non-discriminatory explanations were pretext. Hostile Work Environment In order to establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to 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 her 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 environment, 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). In this case, as noted above, we find that Complainant was subjected to retaliation and disability discrimination when S1 issued her a counseling memorandum because she adjusted her insulin pump during a meeting. Additionally, S1 referenced this incident on Complainant's mid-year and closeout evaluations/ratings. We further find that Complainant was denied reasonable accommodations because of her disability. We find that the Agency's actions were severe or pervasive enough to constitute a hostile work environment. In so finding, we note that Complainant was singled out, humiliated, and disciplined in the presence of other employees for adjusting her insulin pump by a manager. Further, management's failure to provide Complainant with reasonable accommodations likely exacerbated her medical condition and forced her to take extended leave from work. We now turn to whether there is a basis for imputing liability to the Agency for Supervisor's actions. An employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee who can take tangible employment actions against the employee such as hiring, firing, or reassigning. See Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013); Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). This standard of liability is premised on two principles: (1) an employer is responsible for the acts of its supervisors, and (2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment. EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, Section I. (June 18, 1999). In cases wherein an employee has been subjected to unlawful harassment that involves a tangible employment action, no affirmative defense is available. Id. Here, we have already found that S1's actions culminated the tangible employment actions of requests for reasonable accommodations, as well as formal counseling and evaluations. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140761 (June 13, 2014) (Agency liable for harassment that culminated in tangible employment action of denial of reasonable accommodation). Consequently, we find that the Agency is liable for the hostile work environment created by S1. CONCLUSION In summary, the Commission AFFIRMS the Agency's finding of no discrimination with regard to claims 1, 2, 3, 4, 6, 8, 9, 12, and 14. The Commission REVERSES the Agency's finding of no discrimination with respect to claims 5, 7, 10, 11, 13, and 15 and REMAND these matters to the Agency to take further action in accordance with this decision and the ORDERS below. ORDER To the extent that the Agency has not already done so, the Agency is ordered to undertake the following remedial actions: 1. The Agency shall provide Complainant with reasonable accommodations for her disability by ensuring with specificity that she has access to a private area and time to check her blood sugar; use of a private area and time to adjust her insulin pump or inject insulin and the ability to leave meetings; and the ability to eat as necessary during meetings. 2. The Agency shall restore all leave taken by Complainant because of its failure to provide her with a reasonable accommodation, reportedly from March 26, 2012, until her return to work on September 7, 2012. 3. Complainant is entitled to an award of back pay as a result of her status in LWOP because of the denial of reasonable accommodation. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision is issued. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. 4. Within sixty (60) calendar days after this decision becomes final, the Agency shall remove the counseling memorandum dated December 6, 2011, from all Agency files, including Complainant's personnel file. The counseling memorandum, or the incident on which it was purportedly issued, shall not be used as a basis for Agency action or hereafter referenced by the Agency. 5. Within sixty (60) calendar days after this decision becomes final, the Agency shall delete any reference to text messages from Complainant's April 10, 2012, midyear evaluation and September 19, 2012, departure rating. 6. The Agency shall consider taking disciplinary action against S1. The Agency shall report its decision on discipline 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 or reasons for its decision not to impose discipline. 7. Within 120 calendar days after this decision becomes final, the Agency shall provide eight hours of in-person EEO training to all its Miami management officials and supervisors within the Agency's Small Business/Self-Employed (SBSE) Division in Miami, Florida, as well as all persons charged with processing reasonable accommodation claims (RAC, etc.). The training shall have particular emphasis on the Agency's obligation to provide reasonable accommodations for disabilities and to prevent and correct discrimination and harassment on the basis of disability. 8. The Agency shall conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages incurred as a result of the Agency's discriminatory actions in this matter. The Agency shall issue a final decision determining Complainant's entitlement to compensatory damages within 60 calendar days after this decision becomes final. 9. The Agency shall post a notice in accordance with the paragraph below. 10. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." POSTING ORDER (G0914) The Agency is ordered to post at its Miami, Florida area facilities copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 12-29-16 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Specifically, the comments assert that "sending text messages during groups [sic] meetings are not permissible. The group meeting's agenda provides the anticipated time for breaks and lunch." Report of Investigation (ROI), p. 515 (Bates No.). 3 The record indicates that Black Monday Week refers to an allegation that S1 required all group members to come to the office the last week of the month and would not allow any leave or telework during that time period. ROI, p. 595. 4 The record does not reveal what "Pub 1" is. 5 While the letter is dated as of 2011, notations at the bottom indicate that it was prepared in 2012. 6 The medical release authorized a FOH physician to contact Complainant's physician to receive medical records and discuss her medical condition. The medical employability transmittal form was a one-page Federal Occupational Health Service Medical Employability Program form that solicits basic information about employees, including their name, partial social security number, date of birth, address, phone number, position, and grade. The form also allowed employees to designate a representative for communications with FOH. The FMLA application solicits information about the purpose of the requested leave; the anticipated starting and ending date of the leave; and the total number of hours of each type of leave that is needed. 7 Complainant maintains that she did not learn of this letter until the EEO investigation for this complaint. 8 Although claim 11 asserts that Complainant requested an additional 30 days of LWOP, the record reflects that her physician requested an additional 60 days. 9 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that an agency should dismiss complaints that fail to comply with the time limits contained in 29 C.F.R. § 1614.105(a)(1), and are not like or related to a matter on which a complainant has received counseling. 10 On appeal, the Agency maintains that Complainant withdrew her harassment claim before an AJ. However, the appellate record submitted by the Agency does not contain any evidence that Complainant withdrew this claim. Consequently, we retain her harassment claim as part of her complaint and will address it herein. 11 Available online at https://www.eeoc.gov/laws/types/diabetes.cfm . 12 EEOC Enforcement Guidance on Reasonable Accommodation, at Question 9. 13 Because we address the merits of Complainant's complaint, we decline to address whether the Agency properly dismissed portions of the complaint on procedural bases. 14 The record does not reveal what "Pub 1" is. 15 We note that because the duty to provide a reasonable accommodation is always prospective, an employer is not required to excuse an employee's past conduct or issues. EEOC's Enforcement Guidance: The Americans with Disabilities Act and Psychiatric Disabilities. EEOC Notice 915.002 (Mar. 25, 1997), at Question 31; Shockley v. U.S. States Postal Serv., EEOC Appeal No. 01A31289 (Mar. 24, 2004); Purcell v. Dep't of Veterans Affairs, EEOC Request No. 05970773 (June 24, 1999). Consequently, employees that need reasonable accommodations must make their need for an accommodation known to employers before the Agency has a duty to accommodate them. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141118