01984290
09-04-2002
Sharyn M. Perrin, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Sharyn M. Perrin v. Department of Justice
01984290
September 4, 2002
.
Sharyn M. Perrin,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01984290
Agency No. A-95-1014
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of sex (female), age (DOB: August 19, 1934), and physical disability
(Chronic Fatigue Immune Dysfunction Syndrome or CFIDS), in violation
of Title VII of the Civil Rights Act of 1964, 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 the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791, et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether the agency properly found complainant
failed to establish by preponderant evidence that she was discriminated
against on the bases of her sex, age, and physical disability.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Legal Technician assigned to Attorney-1 and Attorney-2
in the Organized Crime and Drug Enforcement Task Force. In November
1993, complainant was diagnosed with CFIDS. On or about March 30,
1994, complainant requested that the agency alter her work schedule to
accommodate four hours of sick leave, two days a week, and to assign
her to other attorneys recommending Attorney-3 and Attorney-4.<1>
Her supervisor granted the sick leave but assigned complainant to
Attorney-1 and Attorney-3. Complainant later requested that she be
assigned to Attorney-2 and Attorney-3, however, management was not able
to reassign her. Complainant later applied but was not selected for a
Legal Technician position with the Criminal Division. Following these
events, complainant resigned from her position with the agency by letter
dated August 14, 1994, and sought EEO counseling on September 23, 1994.
On January 26, 1995, after counseling failed to resolve the matter,
Complainant filed an EEO complaint alleging that she was discriminated
against when: (1) she was not consulted by the agency regarding her
request for a reasonable accommodation; (2) the agency failed to
provide complainant with a reasonable accommodation; (3) she was not
selected for a Legal Technician position with the Criminal Division
based on her physical disability; and (4) the agency created such a
stressful environment which caused her to resign based on her sex, age,
and disability. At the conclusion of the investigation, complainant
requested an AJ hearing which she later withdrew. On November 21, 1996,
complainant requested that the agency issue a final decision.
The FAD concluded that the record failed to support complainant's
complaint that she was discriminated against on the bases of her age,
sex, or disability in any of the issues she set forth in the instant
complaint. On appeal, complainant contends that the FAD was based on
false statements made by parties involved in this matter. She reiterates
her claims alleged against the agency in this instant case.
ANALYSIS AND FINDINGS
Reasonable Accommodation Claim
In the case at hand, complainant alleged in claims (1) and (2) that the
agency failed to consult with her when the agency determined what would
be an appropriate reasonable accommodation and that the agency failed
to adequately accommodate her when it assigned her to Attorney-1 and
Attorney-3 rather than Attorney-2 and Attorney-3 as she later requested.
Under the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations of
a qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. For purposes of analysis,
we shall assume complainant is an individual with a disability.
Rather than the reassignment the agency provided, complainant contends
that a better accommodation would have been to assign her Attorney-2
and Attorney-3. Initially, the Commission notes that an employer does
not have to provide an employee with a new supervisor as a reasonable
accommodation. EEOC Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans With Disabilities Act (Enforcement
Guidance), No. 915.002, question 32 (March 1, 1999). Upon review of the
record, we find that complainant's request for reassignment was based upon
the duties and workload associated with each Attorney rather than based
upon supervision by the Attorneys. Therefore, we find that complainant
is not seeking an accommodation in the form of a new supervisor.
The Commission now turns to the issue of whether the agency provided
complainant with a reasonable accommodation. We note that the
Commission's position is that if more than one accommodation is
reasonable, "the preference of the individual with a disability should
be given primary consideration; however, the employer providing the
accommodation has the ultimate discretion to choose between effective
accommodations." 29 C.F.R. � 1630.9; see also Enforcement Guidance, at
Question 9; Polen v. Department of Defense, EEOC Appeal No. 01970984
(January 16, 2001). Thus, while complainant may be entitled to
a reasonable accommodation under the Rehabilitation Act, she is not
entitled to the accommodation of her choice.
In the case at hand, complainant claimed that the accommodation was not
"fair." The Supervisory Assistant noted that he assigned complainant to
Attorney-1 and Attorney-3. He selected Attorney-3 based on complainant's
request. He also noted that he spoke to Attorney-1 so that they could
make adjustments to complainant's workload. He averred that Attorney-1
did most of his own work on his cases and therefore complainant would
not receive as much work from him. Complainant does not show that the
reassignment to Attorney-1 and Attorney-3 was not effective. In fact,
complainant noted that she was "feeling better" after she had received
the reassignment. Furthermore, she did not inform the Supervisory
Assistant of any problems she might have had with the Attorney following
the reassignment. Accordingly, we find that the agency provided
complainant with a reasonable accommodation even though it was not the
exact accommodation she had requested.
Non-Selection Claim
Complainant alleged in claim (3) that she was not selected for a legal
technician position in the Criminal Division due to her disability.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. St. Mary's Honor
Cen. v. Hicks, 509 U.S. 502 (1993). Under the ADEA, the appellant
must establish that age was a determining factor in the agency's action
against her. Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993).
For purposes of analysis, we shall assume complainant is an individual
with a disability. Upon review, we find that the agency articulated
a legitimate, nondiscriminatory reason for not selecting complainant
for the Legal Technician position. In response to complainant's claims
regarding her non-selection, the agency avers that she was not selected
for the position because she was not the best candidate. As an example,
the agency stated that complainant's typing scores were extremely low
and that the other candidates had significantly higher test scores.
Therefore, we find that the agency has articulated a legitimate,
nondiscriminatory reason for its action.
Since the agency articulated a legitimate, nondiscriminatory reason for
its action, the burden returns to the complainant to demonstrate that the
agency's articulated reason was a pretext for discrimination. Complainant
claims that during her interview, she was questioned about her health.
The record indicates that the interviewers requested information regarding
complainant's work schedule requirements. At that point, complainant
informed them of her illness. Upon review, we find that the complainant
has failed to demonstrate a pretext for discrimination. Therefore,
the agency's determination that complainant failed to establish that
she was discriminated against, with respect to these claims, was correct.
Constructive Discharge Claim
In claim (4), complainant alleges that the agency's management
discriminated against her on the bases of sex, age, and
physical disability when it subjected her to a stressful work
environment. Complainant claims that she resigned due to the work
environment created by management. Complainant alleges that she was
constructively discharged. To make a case of constructive discharge, the
complainant must show that: (1) a reasonable person in her position would
have found working conditions intolerable, (2) conduct that constituted a
prohibited discriminatory act created the intolerable working conditions,
and (3) her resignation resulted from the intolerable working conditions.
Taylor v. Army and Air Force Exchange Service, EEOC Request No. 059600630
(July 20, 1990).<2>
In this case, complainant alleged incidents which created a hostile
working environment. Upon review of the record, the Commission concludes
that the conduct alleged by complainant does not sufficiently rise to the
level of conduct which created intolerable working conditions. Therefore,
we find that the FAD properly found that complainant's resignation was
not a constructive discharge.
CONCLUSION
Accordingly, after a careful review of the record, including complainant's
contentions on appeal and the agency's response, 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
September 4, 2002
__________________
Date
1 Complainant's physician recommended that complainant work a modified
schedule from April 1, 1994 through May 31, 1994 and return to her
regular work schedule on June 1, 1994.
2 The Merit Systems Protection Board (MSPB) has initial jurisdiction
over mixed case complaint allegations which allege discrimination based,
among other things, on sex, reprisal and disability with regard to a
constructive discharge if the MSPB finds a resignation was a constructive
discharge (5 C.F.R. �1201.3). The agency's final decision provided appeal
rights to the EEOC, not the MSPB. Since the complainant's complaint is
firmly enmeshed in the EEO forum, the Commission shall assume jurisdiction
over the matter. See Burton v. Department of Agriculture, EEOC Appeal
No. 01932449 (October 28, 1994).