01A11579
07-24-2002
Gerald F. Martin, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Gerald F. Martin v. Department of the Air Force
01A11579
July 24, 2002
.
Gerald F. Martin,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A11579
Agency No. AL900010196
Hearing No. 370-98-X2258
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Housing Officer at the agency's Osan Air Base in the Republic of
Korea. The agency states that several complaints regarding poor customer
service and working conditions were lodged in the facility complainant
managed. Further, direct complaints about complainant's alleged
misconduct were levied. As a result, complainant's second-line supervisor
(S2) initiated an investigation. To facilitate the investigation of the
housing facility complainant managed and complainant himself, S2 decided
to reassign complainant, effective October 24, 1995, to the position of
Facility Programming Specialist. The new position was a GS-9 position,
but complainant maintained his pay grade of GS-12 after the reassignment.
On January 4, 1995, based on information recovered during this initial
investigation, a separate investigation was launched to look into
alleged issues of fraternization and financial gain by complainant.
Complainant filed a formal grievance with the agency regarding this
newly-launched investigation. The grievance was dismissed by the agency.
In early April 1995, complainant applied for disability retirement.
In conjunction with this application, complainant met with S2 to get
his signature on several documents, as well as to request S2's approval
for complainant to use 400 hours of sick leave. During this meeting
on April 3, 1995, S2 informed complainant that the agency intended
to initiate removal action against him. The record indicates that S2
approved a lesser amount of sick leave for complainant and advised him
that the proposed removal letter would be issued on April 11, 1995.
Complainant resigned from the agency's employ on April 10, 1995.
Complainant sought EEO counseling and subsequently filed a formal
complaint on August 8, 1995, alleging that he was discriminated against
on the bases of disability (bilateral optic atrophy) and reprisal for
prior EEO activity when he was allegedly constructively discharged from
his position. Complainant further contends that the agency failed to
provide him with a reasonable accommodation.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, however withdrew this request after
the AJ indicated her intention to issue a decision without a hearing.
Complainant instead requested that the agency issue a final decision.
In its FAD, the agency concluded that, while complainant was a qualified
individual with a disability, he was neither subjected to disparate
treatment discrimination, nor was he denied a requested reasonable
accommodation. The agency determined that, as to the allegation of
constructive discharge, it articulated legitimate, non-discriminatory
reasons for its actions which the complainant could not rebut as being
pretext to mask discrimination. The agency further concluded that
complainant never requested a reasonable accommodation, and his eye
condition did not make it obvious that an accommodation was necessary
to perform the essential functions of his position.
On appeal, complainant contends that the reassignment and subsequent
investigations rendered his working conditions unbearable, thereby forcing
him to resign. In support, complainant maintains that the investigations
were improper because: 1) fraternization was not prohibited by agency
policy; 2) he experienced no financial gain as a result of his alleged
relationship with a subordinate; and 3) that �charges� were improperly
brought against him before an investigation by a proper investigative body
was conducted. Complainant further argues that the reasons proffered by
the agency are not worthy of belief, and that agency officials was aware
of his disability, contrary to their statements. The agency requests
that we affirm its FAD.
ANALYSIS
The central question in a constructive discharge case is whether
the employer, through its unlawful discriminatory behavior, made the
employee's working conditions so difficult that any reasonable person in
the employee's position would feel compelled to resign. Carmon-Coleman,
Complainant, v. Department of Defense, EEOC Appeal No. 07A00003 (April
17, 2002). The Commission has established three elements which a
complainant must prove to substantiate a claim of constructive discharge:
(1) a reasonable person in the complainant's position would have
found the working conditions intolerable; (2) conduct that constituted
discrimination against the complainant created the intolerable working
conditions; and (3) the complainant's involuntary resignation resulted
from the intolerable working conditions. See Walch v. Department of
Justice, EEOC Request No. 05940688 (April 13, 1995).
The agency herein stated that the first investigation was launched in
response to numerous complaints it had received about the housing office.
Complainant offers no rebuttal evidence. The agency further states
that the second investigation was launched as a result of information
uncovered during the first investigation. Complainant, again, offers
no rebuttal information as to this proffered explanation. Lastly, S2
stated that complainant's removal was proposed because the allegation
of fraternization was substantiated. In rebuttal, complainant states
that fraternization was not prohibited. The agency, indicates, however,
that the proposed removal was not motivated by complainant's relationship
with a subordinate. The removal was motivated, according to the agency,
by the improper influence complainant exerted to secure a position for
his living companion. Complainant offers no evidence to the contrary.
We find there is no evidence in the record to support complainant's
claim that the agency's conduct, which allegedly led to complainant's
constructive discharge, was as a result of a discriminatory animus against
one of complainant's protected class. We further find that complainant's
working conditions were not so objectively unreasonable that he could
reasonably be said to have been constructively discharged based on
the agency's treatment of him. The agency has articulated legitimate,
non-discriminatory reasons for its actions, and complainant failed to
rebut those reasons. Bennett v. Department of the Navy, EEOC Request
No. 05980746 (September 19, 2000)
Regarding complainant's claim that he was denied a reasonable
accommodation, it appears that complainant is arguing that S2's denial
of complainant's request for 400 hours of sick leave was tantamount to
a denial of a reasonable accommodation request. Although the agency
states that a lesser amount of leave was approved by S2, complainant, on
appeal, maintains that his request was completely denied and the record
demonstrates that the request for sick leave was, in fact, denied by S2
on the basis that complainant was neither incapacitated nor unable to
perform his assigned functions. After review of the record, we are not
persuaded that complainant's request for sick leave was a request for
a reasonable accommodation in order to remove a workplace barrier and,
thus, allow him to perform the essential functions of his position.
Rather, this request (which coincided with complainant's attempt to
secure a disability retirement) appears to be no more than an effort to
exhaust his sick leave prior to retirement. Accordingly, we find that
complainant did not request a reasonable accommodation, as contemplated
under the Rehabilitation Act.<2> See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, No. 915.002 )March 01, 1999). Thus, after a careful
review of the record, including complainant's contentions on appeal,
the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0900)
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. 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 (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
July 24, 2002
__________________
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 Given the disposition of this decision, we do not reach a decision
as to whether complainant is a qualified individual with a disability,
within the meaning of the Rehabilitation Act.