reversed because the district court found that because miss carter indicated there the notice of proposed removal indicated that she by alleging that eight hundred hours of the head in use the same paragraph that cited eighteen hundred hours indicated that the majority of those hours were related to her medical just disability for that reason we would submit that the district court was required t the medical issues in its assessment of the eighteen hundred hours she was frequently absent yes she was frequently absent and the record shows that the majority of the time that she was absent pertain to her medical disability she stated her medical disability at least in two places in her complain but by more but frequent absence black letter law is that a disability causing frequent absences from work may render an employee unqualified one attendances assessed essential function of the job and here attendance is an essential function of the job so the frequent absences would seem not to render her qualified for the job well ya know what we would submit is that when you discuss away frequent absences in the context of the rehabilitation act you must also take into account whether or not reasonable accommodation would impacted on her leave she requested a reasonable accommodation but the law as well as the union agency agreement that's all that's in the complaint about the time that she w attendance she asked for a reasonable accommodation as we set forth in paragraph twenty one and one of the things that she alleges was that because her ailments impacted on her time and attendance she was disabled within i'm sorry but it's still eighteen hundred hours over three years right you don't dispute the total number of absence of scar act i think she she says she was absent for eighteen hundred hours over three years about six hundred hours a year probably about a third of time for a normal working job leave so let's talk about that but you don't challenge that the total is eight hundred as i understand it right you say that some of them were because of medical conditions some of them were approved leave and such well you know one of the things that we assert is that much of the leave was approved leave right and for that reason the prove leave could not be used for just  if if we're talking about six hundred hours a year how many of those are likely to be annual leave or sick leave seem to me it's got to be a pretty small percentage well the problem you're on is this the law is quite clear that you cannot use approved leave for display their purposes and if you take into account whatever fraction of six hundred hours a year is approved it's a pretty small number my experience in the government is you don't get two hundred hours or three hundred hours of sickleave or annual hill that where there is an issue one of the rehabilitation act where they leave pertains to a disability what have you when you weigh that the disciplinary action you must also take into account the the reason for the leave and that that must be weighed when you say eighteen hundred  was somehow bad now we would submit that if the district court had said she missed eight hundred hours and yes while part of the eight hundred dollars pertain to ailments i still room that the three hundred dollars was too were too much if we had that scenario we would submit then we would have a different case here where we don't have that wouldn't that still render her unqualified if she has to miss six hundred hours a year even if for a medical a medical reason you know your name would you know if you conversation the rehabilitation acton's about eight hundred dollars well well that's that is per se bad which is what the district court did it says eight hundred dollars in the  if attendance is part of the job which it isn't for some jobs and is for other jobs for the tenants as part of the job and you can't be there because of your as judge council says because of your medical issues that still means under the settled law that you're not qualified for the position no you are not in this case because what was sought here was a reasonable accommodation and the question that this court must ask itself is well the not the reasonable accommodation that she thought would solve the problem she did not ask to be off in a time  her illness bothered her what she asked was asked for and what her doctor suggested was that she be allowed to report late so many days of a month that was a request that she asked for and after not after the core hours of seven thirty to nine thirty but i didn't see anything saying how late and how often and whether she would make up for that working other time as happened in one of the cases well you know to day she asked for a flexible schedule and now  seven thirty nine thirty were her normal right working hours consequently as her doctor suggested that she feel out to report late of of so so many days f a month what have you that would solve the problem one of the things that we invite the court's attention to is that in the specifications well if i might in opposing a court fact one of the accommodation she would not have missed work in the same amount that she didn't have to miss it because she didn't have one right there discretion and with respect to judge kavanagh's question she which said if attendance during regular hours were required being absent this much would be a problem as your position that in order to get the job done she could have gotten it done with the accommodation and it was not required by the essence of the mr andrews denied the grievance because it was not covered by the a collective bargaining agreement i thought i just asked to clarify something i'm thinking about here on the retaliation claim roky on the retaliation claim that is a claim of that you were fired but she was fired in retaliation for her e o activity correct yes and so one when she is terminated the union immediately a lax arbitration correct yes did she ever raised to the are the arbitrator a retaliation argument of any kind yes she did your honor i invite the court one eighty one and specifically we invite the court's attention to page one eighty one paragraph arbitrated sean off ok i mean assuming that you're going to give it to place then into the record you did read from it that we're not finding it so it's not on the page we thought you know which is it i one the transcript of the transcript yes ok one of the things that happened was the agency call mr andrews to the stand now at the start of the proceeding there was before the see what happened at that point was we recognize that there that there was a proceeding before the e e o c and we recognize that there might be a problem however when mr andrews was all as witness we are good starting on one seventy eight to one of the more pertinent pages we said wait a moment they have waived any claim that those proceedings should be kept separate and apart from the arbitration because mr andrews was called as a witness counsel i'm sorry i'm looking at this and it seems to confirm what the m s p be held and what the e e o c held which is that you did not challenge the removal as retaliate torrie because on the middle of this page you are saying retaliation is not the issue in this proceeding well you know well you know specifically we state that we take that you're ruling is that retaliation so that we it was raised at that class retaliation based challenge to the removal and you say we we understand your ruling well then you tried to inject retaliation into the m s p v appeal and they said no and you tried to inject it into the e e o c appeal and they said no yes you you haven't challenged retaliation in the arbitration and you did challenge retaliation in the e e o complaint but you express lee limited that challenge to the notice of proposed removal what you want one of the things as i indicated that we started pa arbitrator and we asked that fine but but the issue before the e e o c was a challenge to the proposed removal yes and while one might think in the abstract that a challenge to proposed removal encompasses a challenge to the later removal you explicitly carved out when you put retaliation into the iau proceeding you said you only playing right any any claim that is willing compas any related claims that follow on the heels of that claim and so i'm not i'm not sure that's right after amtrak but in any event i'm just looking at your own here this is this is your letter to the e e o c injecting retaliation into the case and you say you want to challenge the notice of proposed removal and then you say this proposal as a standalone action is what you want to challenge without including the subsequent action that may result from the proposal that proposed removal not including the removal that's your formulation while you're on a one on one of the things that we think the ninth circuit case which and related cases would say that anything that follows on the heels of the the initial action if it's related is automatically covered but more importantly on one of the things that happened is we did raise the raised the vatican i asked one other clarifying question because the arbitrator on one seventy nine of the bottom's as it appears that the retaliation as to the proposal is in the channel but then says if you have a retaliation claim separate and apart from that into so demonstrate you're welcome to go down that path at that point and i thought that i read that to be the arbitrator distinguishing the know one of the things that we were arguing at that point was because mr andrews testified at the arbitration his actions were automatically injected into unfortunately that occurred after the record was closed in arbitration we we would submit that the matter was placed before the arbitrator as a result of the discussion from one page one  called this a witness in the arbitration and testifies about the motive for the final removal and that's somehow what's real allegation with regard to the final removal his actions were then placed initially and if his actions were retaliatory then those actions were also automatically placed into an issue before the arbitration and we  the next level the main thing is that miss carter did go to those forums and asked those forums to to consider and for that reason be argument that the law that the district court sa went to she started down this road on grievance she was precluded from going anywhere else it didn't matter because she did go to those forms also your honor we would so that what you had was a scenario where this is one thing in this form that that is different from what they said in the other court and but by virtue of having gone through those forms we affirm the dismissal of your rehabilitation act claims what is left of the hostile environment claim it would seem that assuming we affirm on the first point you haven't adequately pled that the specific things that happened here client were disability based and so what the  that the supervisor is just being mean and difficult but that's not a hostile environment unless it's linked to the disability so how do you how how can you have a hostile environment claim without any disability based discrimination one of the things that re  reply brief his his actions must be we as a supervisor as opposed to a regular employee but it's not illegal to for him to create a very very hostile environment unless it's a hostile environment based on race or disability or sex or another prohibited criteria in that's so let's so let's assume then that we affirm on the retaliation claim on exhaustion grounds and as a result you can't litigate in court the question whether any of the individual acts was retaliatory same question how do you show how do you then show a hostile environment comprised of individual acts that in order to be illegal have to be retaliatory well you are one of the things that we have here is that on the nineteenth of september she files grieve on the twentieth of september he issues a reprimand the reprimand required of her to exhaust her administrative remedies thank you were  good morning josh calls him a half of the police in this case the agency identified specific pleading deficiencies in this carter's initially again with the eight hundred hours point yes the government going to stand on that argument we do believe that that the sabbath was the she was not qualified for his such a function of her job however i why do you say that because the case of ours you rely on for the complaint doesn't alleged facts to show that she was qualified and the court doesn't even have to get into yeah i know the court doesn't have to get into it and but i want to be sure that the government what the government's position is do you think that when you where there is no allegation that attendance was not an essential function of her job has to make that allegation so she says in exactly the same paragraph or not in the same paragraph she says of the removal decision  so all we have on the face of the complaint is that she was not able to take do the job after her accommodation had been eliminated and she alleges with an accommodation she would have been able to her job the other facts you which are at issue here is his attendance really essential or not none of that's in the complaint either way that's correct and it's our position that she would need to allege something about the nature of her job that she could maintain an acceptable work schedule that's per gram fifty but that's that's not the same as performing one's essential job functions and i think that is a distinction in the johnson case where the plaintiff requested delayed start time and the court held that even with that accommodation the deployed wouldn't be able to perform the essential functions of her job which required attendance  in the office during ordinary her skin hours paragraph fifty said that would enable her to maintain an acceptable work schedule i know you're interpreted that as not being enough but this is only a complaint here this is not do your job would be an accommodation i'm not saying in this case but as a general matter even if you could not attend work if you could do your job with telework that would use it for make sure i understand your  correctly if telework unable to person to perform essential functions of their job yes that could be a reasonable competition and so the mere fact that someone wasn't able to do their job with out color work doesn't mean that they weren't able to  core business hours and in fact the the nose of proposed removal which is referenced in the complaint gets at this idea of her supervisor indicated that her the nature of her work was time sensitive and she needed to  to be in the office now that's not a legend complaint and my understanding of this case is not based on the facts in the complaint but is that she was it was necessary for her to be in the office during ordinary business hours  hide a critical deficiency that is only going to be revealed during discovery if the complaint said without anything more this job does not require physical presence at the workplace but can be performed by telework would that be enough to survive the motions i think that there would and there would need to be some factual support for that some description of what her what her duties were yes that does strike me as a very large number but i am troubled by what i understand to be the government's position that it is that an employee can be deemed disqualified by taking even leads that is proved in some sense annual leave sick leave whatever it is so it is that your position i believe there is support for the idea that a person can be removed even if the lead is approved i would think if the governing statutes or regulation say look you come work for us you're entitled to x number of hours of annual leave and why number of hours of sick leave or whatever that's an authoritative statement that that amount of absenteeism doesn't count against an employee it's part of the against an employee are annual leave and sick leave on the other end of the spectrum the categories that clearly should are a wall and then elite leave without pay seems to me in the middle and i not sure what it is so could you just elaborate on what it is and why you think it can count against an employee in the way that you suggest i mean the record isn't entirely clear on the nature of the leap the different types of leave that was rather used here my understanding is that she was absent frequently in some cases the agency exercises discretion to allow her to take leave without pay rather than while i assume that just means she's used up her annual leave she's used up her sick leave she has a medical issue she doesn't come in and the agency says ok buttress the chief's point that we can only do so much on a motion to dismiss right and i think the idea is that to the extent that the agency was exercising its discretion to show some leniency and not designate these hours as a walk that doesn't mean that miss carter was performing her essential job functions and if it doesn't meet at the agency had to continue appendix page two seventy nine was the date of the that is july nineteenth two thousand and twelve and it's at the end of the first paragraph she writes it is my understanding that i can submit this proposal as a standalone action of reprisal without including the subsequent action that may result from the proposal and in fact when the actual removal occurred she went to  and it's at the end of the first  right so this is an investigative affidavit and it made repeatedly asked about the proposed removal paragraphs thirteen fourteen fifteen sixteen seventeen so this just reflects that the agency remove now the actual removal is not we're not alleging or asserting retaliation in connection with mr boyd's decision retaliation actually is against mr andrews the supports actions are separate we have not asserted retaliation as an issue before the spot but just to clarify mr boyd was the deciding official on the removal mr andrews was opposing official so what seems to be indicated here is that retaliation was raised as soon as  exhaust the grievance process she did exhaust the grieving process as to the removal and would you go so i there's there were sort of two grievance processes there was the initial griev and then appealed to the e e o c so we're not contending that she didn't exhaust whatever claims she had raised in that process is a move a process right so the problem is that it didn't specifically say replies only just grounds for dismissing it that's correct so why isn't the supreme court kleckner case which says that when he m s p be rejects either on procedural or merits grounds that's a final decision and then you can sue in was rejected but is there a hit is there a case or anything that says well that that in other words where you do finally raise the issue with the m s b b and you aired somewhere along the way that that doesn't count as exhaustion i understand why you must be beat might be completely right but why isn't it enough for exhaustion is there a case that says that i don't know of a particular case in that issue was not raised by see they were involved in all these proceedings so they knew what was going on purpose of exhaustion is the agency wants to fix something in advance of going to court they can they had several fronts on which they could have done that well i think  early on in the process it's clear that you lose on the merits and i would still be exhausted right doesn't miss them a speedy can't bind the court and i and i case brought on the stand i agree so what's the difference that is they lose on the merits and lose on the merits that they lose because they screwed up the procedure they lose on that they put up they put forward their arguments that the government had an opportunity to fix things if it wanted to which obviously didn't want to because a lot it was right on the merits so i think the arbitration is is a process that's a lot more amenable to  that because she could have but did not raise her retaliation claim during the arbitration she's therefore precluding precluded from asserting it before the board it's cites five c s r sorry c f r twelve zero one one fifty five c and a bunch of cases what did those i didn't go back and check them because i didn't i didn't understand your opponent to be making this argument but what is what is that authority say i  should have gone forward as against the later arbitration because the e o complaint was filed before the arbitration was filed so why is the e it matters but i just didn't understand what they were doing it is there isn't much of a explanation here my understanding is that they were aware that the other proceeding was going on and appraisals performance standards the grievance was denied as to two of those actions and one of them the supervisor agreed to meet with miss carter to discuss so she did not raise hostile work environment there in the grievance ingredients and she did on september twentieth with the complaint the next day it's a timer twentieth she went to e o counselor started that process and then in november she submitted a formal  evaluation and her supervisors failure to discuss her performance standards with her those are three issues those same issues were addressed in the e o complaint along with additional issues as  well so our position is that as with the removal she elected here she elected the negotiated grievance procedure to address these actions even though she didn't raise hostile work environment at all that's correct it's not a question of raising a particular claim it it's used you elect a remedy for a matter and then once you've elected that remedy you have to raise whatever claims you believe apply and it and here she did not september nineteenth started the e o process the next day she was complaining about the same issues so she didn't raise the hostile work environment claimed in the negotiated grievance procedure also didn't pursue it past step one to exhaust that procedure she would be twenty which procedure in time that the negotiate a grievance procedure to exhaust through that process she would have had to appeal to step t environment doesn't even again if that case apply here different than other cases because it's other issues because it's a continuing series of violations and as long as one of them is within the time the notice of oppose removal why isn't that which then relates back to the complaint why isn't that exhausted with this stuff hostile work environment well it's not clear that she is actually including that in a hostile work environment claimed she refers to the current hostile environment theory is just take all of the acts and lump them together right everything from it that was the subject of the initial grievance to the ultimate removal which is the subject of arbitration right that's correct of all of these actions are treated together and  her hostile work environment claim was exhausted and therefore you have to address the merits of it and you have it out you have an alternative argument on the merits i believe we do is that it does not state a hostile work environment claim because it's nothing like your typical hostile work environment cloning that's correct what about the idea that if if one of said there are five things and one of those exhausted and that's a part of a hostile work environment trying to stood to be has been got to get not i'm not sure of the answer to that your honor i would have to go back and look at that i think it seems like a stretch on exhaustion to say that the initial grievance which focuses on the all of all of the early discreet acts covers everything but i think that's because these this feels like a discreet acts case rather than a hostile environment cases normally we would treat you if you're challenging you can challenge your removal and you can challenge  reprimand and you can maybe challenge a performance evaluation those are all what morgan would characterize as discrete acts it seems odd to me that you could stitch together a bunch of discreet acts is no cohesiveness to them it is a collection of of discrete acts none of which are inherently hostile these are ordinary workplace incidents people get put on performance that's right and i think in a more traditional sort of classic hostile work environment case where there's that sort of conduct a complaint you know alleging those sorts of facts wouldn't have to go into maybe more detail because it's sort of an inherently obvious why those actions are more hostile but here when you're talking about performance improvement plans low performance appraisals our position is there needs to be some factual basis for concluding that that those were severe that they were that they were hostile when there's nothing that on their face which would suggest as much and there's no factual allegations and allegations to that effect here there's nothing suggesting that these were particularly severe pervasive we got wind in our brief the number of incidents it's relatively small number of incidents occurring over a three year time period so we don't think that rises to the level of hostile work environment and also there's no indication of a protected characteristic that the allegedly hostile environment was predicated on i know the issue the question of retaliation was was posed to mr  wagner notably the alleged hostile environment allegedly be and in two thousand and nine according to the complaint there's no indication of any protected activity at that point the first indication of protected activity is in two thousand eleven so that would seem to undercut any idea any inference that the hostile work environment was based on retaliation when there was no protected activity proceeding thank you very the one of the things that we would submit is controlling here is that with respect to the eight hundred hours counsel mentioned something about performance performance is not an issue in this case time attendance is the issue here and in paragraph twenty one of her complaint miss carter says because of my own with the impact on my attendance i requested of a reasonable accommodation that is carried over to the portion of the complaint pertaining to the  a medical problem you cannot say that because of eight hundred dollars per seat that this lady is out of court which is what the district court said but doesn't the complaint need to say something to the effect of i am qualified to perform this job even though i can't be there quite often because tele work is sufficient to make me qualified to do the the requirements of the was not removed for performance in fact mr andrews conceded that performance was not a basis for her removal the only issue was time in attendance of time lieutenants is the only issue then the question becomes whether or not a reasonable accommodation would have addressed that problem her doctor says let it come in late sometimes and that's what she saw she saw a reasonable accommodation to come in late on occasion one of the if it was if it is an emergency or under emergency situations can you get any kind of leeway for partners when she said i want to come in late to choose say how late would solve the problem but still be reasonable from the employer's going to be she did not specify how late but she said a flexible schedule and what she had mentioned in her deposition is that she would claim it was with that in mind that when she found her retaliation claim on on july the nineteenth she understood that anything that they follow that would be  mr andrews testimony which miss carter said hey basically because they call mr andrew to testify about his actions they have inject all of his conduct into this proceeding and we should be allowed to go into the retaliation claim here because mr andrews testified about the things that he had done it is what led bases that we  performance is not an issue here the only issue is the time and attendance and we could have addressed that with a little leeway in terms of allowing her to ride me that's what our doctor