Alice Littrell, Complainant,v.Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionJun 27, 2001
05990536l (E.E.O.C. Jun. 27, 2001)

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.