Sharyn M. Perrin, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionSep 4, 2002
01984290 (E.E.O.C. Sep. 4, 2002)

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).