05990536l
06-27-2001
Alice Littrell, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Alice Littrell v. Department of Housing and Urban Development
05990536
June 27, 2001
.
Alice Littrell,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Request No. 05990536
Appeal No. 01970014
Agency No. FW-94-28
Hearing No. 270-95-9062X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Alice
Littrell v. Department of Housing and Urban Development, EEOC Appeal
No. 01970014 (March 3, 1999). EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
BACKGROUND
Complainant filed a formal complaint, alleging that the agency
discriminated against her in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
Complainant further alleged that she was discriminated against based on
race (Caucasian), sex (female), age (59), national origin (Italian), and
disability (stress, diabetes) when, in February 1994, management refused
her repeated requests for a transfer from her Supervisor (Hispanic,
male, 60, no disability) whom she alleges has continuously harassed her
over the past three years since her transfer from the agency's Houston,
Texas office. Following the agency's investigation, complainant filed a
request for a hearing. The case was assigned to an EEOC Administrative
Judge (AJ).
In his recommended decision (RD), the AJ found that complainant failed
to establish a prima facie case of race, sex, age, or national origin
discrimination, concluding that complainant failed to set forth facts from
which an inference could arise that she was not transferred because of
the bases alleged. Furthermore, the AJ found that she did not introduce
any credible evidence that she was treated any differently than employees
outside her protected groups. The AJ also found that complainant was a
qualified individual with a disability (diabetes) within the meaning of
the Rehabilitation Act, but complainant nevertheless failed to show that
she suffered disparate treatment based on her disability. However,
the AJ found that complainant established that she had a disability,
that the agency failed to accommodate her request for a transfer,
and that the requested accommodation would not have imposed an undue
hardship on the agency.
The agency issued its final decision (FAD) in which it adopted the
AJ's ultimate decision finding no discrimination on the bases of race,
sex, age, and national origin. However, the agency rejected the
AJ's determination that complainant was a qualified individual with a
disability and therefore found that it did not discriminate against her
when it failed to accommodate her disability.
Complainant appealed to the Commission. The Commission's decision
on appeal found that the FAD was supported by the record, finding
that there was no basis in the record to conclude that complainant
was a qualified individual with a disability within the meaning of the
Commission's regulations. The Commission indicated that the record was
devoid of any evidence as to how the complainant's diabetes affected any
of complainant's major life activities. The Commission also concluded
that the agency's position that it was unaware of the �handicapping
nature� of complainant's diabetes was fully supported by the record.
The decision thus stressed that even if complainant was covered by
the Rehabilitation Act, the agency's obligation to accommodate arises
only when the disability is known. Finally, the decision found that a
doctor's note expressing the belief that complainant's stress at work
might be contributing to the difficulty in controlling complainant's
diabetes fell short of identifying any specific stress or requesting
specific and definite action and failed to establish that complainant
was a qualified individual with a disability.
Complainant, on reconsideration, argues that everyone in the office was
aware of her diabetes. She emphasizes that it was no secret she had to
give herself an insulin shot during the day at work. Complainant also
indicates that when she requested a transfer from her Supervisor in
September 1993, the agency became aware of her disability. Among other
evidence to support her contention of the agency's knowledge of her
diabetes, complainant indicates that she gave the agency's Office Manager
and Special Assistant to the Office Manager a copy of her doctor's note
and also stated her reasons for her transfer request.
ANALYSIS AND FINDINGS
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request.
On reconsideration, complainant has not disputed the prior
decision's finding that she was not a qualified individual with a
disability. Therefore, we conclude that the finding in the Commission's
decision on appeal is not before the Commission on reconsideration.<2>
Finally, complainant requested, as an accommodation, to be transferred
from her Supervisor, because she felt she could no longer work with him.
An employer does not have to change a person's supervisor as a form of
reasonable accommodation, although nothing prohibits an employer from
doing so. EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act at 46 (March 1, 1999).
CONCLUSION
The decision in EEOC Appeal No. 01970014 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 27, 2001
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Accordingly, although it appears from complainant's evidence that the
agency knew of complainant's diabetes, complainant still was not entitled
to reasonable accommodation under the ADA.