reason why she did if we look at the correspondence being generated out of the local eagle office there providing a couple facts in those correspondence there indicating you have not done the informal counselling process because you have not done the informal castling process we need to gather additional documentation and records and in fact she did provide additional documentation of record responses and the documents of which i speak are documents step forth that these defendants or the appellate sexists of records but she did planning of this kind that it's necessary to go through the counseling informal counseling and then together authorities through the letter and to sue within a certain number of days after that c or we could have a pocket in a federal court so yes that's true but it's come a little bit farther down the line where we're dealing with the alleged problem area here the alleged problem area here is dealing with the initiation of the this forty five day period you have to go to the informal counseling process now when we look at the sea of ours that are involved here they don't do a very good job of providing us with a definition of what process they indicate that your obligation as the employee  aspect that the trial part of the evidence or hearing there was a contact there they understood the nature of her issues and in fact there was training being provided they were certainly working the issue now there was an additional contact mr stevens but he would never meet up with her that in the course of the telephonic contacts she was telling them the nature of the problem so the c f r provides two things contract consultation doesn't say face to face meeting well it says that consultation she did that now those two things occur from her side of the equation should trigger some activity on the part of the government in other words an investigative process and ultimately a generation of a report that's my understanding that didn't happen here that one troll that my client have over that sheet that she doesn't write report to justice and that's the report we get to the the february time frame here she go case which is the boy case which is the vice circuit opinion and we look at this case and we look at the astor case that was relied on by the district court and we have a situation here where she's doing everything that she's supposed to do the government seems to ignore the tirel filing if i recall correctly and they did accept it but here we have much more going on we have a rational basis for the government implicitly to accept these procedural defects in the process because of the time this occurred and we have more so we can't really take another look at it that's just the you know they live in the comedy and the as regarded disability is just i wonder kaplan although you could you could write a petition for rehearing in bank on provided we think we made a compelling case that the accommodations that were provided were inherently on a reasonable and in fact mean spirited and i think designed as a retaliation and which is the second issue which is that actually the fourth issue with was in a retirement at one point in time but it was always our theory of the case that the reason she went to a retirement situation was because the employer simply was not forthcoming there was a deterioration in her mental condition which was vigil that was on the list and not making contact with them is not complying with her legation to go through the informal counseling she had plenty of time within the forty five day period late we could say ok you made some initial efforts and it was difficult for you to do it so you know maybe it was thirty days later sixty days late that's one thing she just totally ignored her responsibility to do it she didn't do it at all despite after going into the office in february wanting to follow her formal complaint being told that really she had totally ignored the informal process and the she needed to go through that first she didn't do it now just prime found that because the agency went ahead and investigated the case that they had waived their right to raise the issue that she had compliant in with all due respect to judge brian it's the government's position that the agency should not be penalized for trying to resolve the case and investigating it the large generally has been that as long as there is no finding of discrimination or no will find  everyone who has a medical problem is covered under the rehabilitation that the threshold question for and if that is whether or not they are substantially impaired in a major life activity and just having a problem but the focus is at the time that they're actually asking for accommodation in this case between march of ninety nine nine in october of ninety nine and then when she leaves the office and doesn't come back the question is at that time accommodation in general terms to that doesn't mean to say that an employer isn't going to try to work with the person and try to help them you know if they have a limitation to help but there's no requirement legally connection between her complaints earlier that racial language had been used in the workplace and the ongoing efforts of the army to try to resolve her problems there was just no cut there was no information from the person and the person might give so much but not as much as the agency wishes to have to try to resolve it i guess there may be issues at that time because i regulations and what she's supposed to do and she didn't do it so that would be the first step that the case should have been out totally but regardless of that i mean if the court does not want to deal with that issue the whether or not there was a need for accommodation here and whether or not she did meet that meet the standards of just ability i would respectfully suggest that just simply having the ability to have access to your job site where you can form the function of your job social function your job because if you can get into the building you can perform your work and here the question is this yes if you can make it up the stairs but you can't make it up the stairs without substantial amount of pain she also had a condition that made her again this is a different case if we have a regarded as theory available to us it becomes a much simpler case from our perspective as the plaintiff it makes a big difference with respect to the retaliation claim at explanation a possible explanation as to the motivations behind what happened and in this case when we look at what happened there is an indication there were there was a lot of unreasonable conduct on the part of our employers they're putting on the men's room which is essentially a shower room and doing a position of walking around men disrobe and pretty early disgusting work environment why would a reasonable people do something like that these are trained counsellor just dealing with people they're dealing with drug and