01A12688
08-28-2002
Shirley M. Cox, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Shirley M. Cox v. Department of Housing and Urban Development
01A12688
August 28, 2002
.
Shirley M. Cox,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A12688
Agency No. FW 96 22 R
DECISION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. Complainant alleged in her complaint
that she was subjected to unlawful discrimination on the basis of her
disability (hearing impairment) when, in June, 1994, she was assigned
to a receptionist position and, after repeated requests to be removed
from telephone duties because of her hearing impairment, she resigned
on July 7, 1995. For the reasons stated below, the FAD is AFFIRMED.
The record reveals the following information pertinent to this appeal.
At all times relevant to the agency actions at issue, complainant
was employed as a Office Automation Clerk, GS-4, at the agency's Fair
Housing Enforcement Center in Fort Worth, Texas. Complainant began her
employment with the agency in August 1993, on a temporary assignment
which was renewed every three months until she resigned in July, 1995.
In June 1994, complainant was assigned to work at a reception desk,
which required her to spend a large portion of her work day answering
the telephone. Shortly thereafter, complainant noticed that she
was having trouble hearing calls which came in on one of the agency's
toll-free telephone lines, and brought this problem to the attention of
agency management.<1> In an agency memorandum dated August 24, 1994,
a Telecommunications Specialist (TS) from the agency's Administrative
Services Department stated that she discussed the telephone situation
with complainant, and then, after contacting the agency's long distance
carrier regarding the problem, as well as having complainant's telephone
inspected for defects, TS concluded that the problematic telephone line
should be installed on a single volume-control handset for complainant.
TS offered to perform this installation, if the FHEO Director approved.
The record contains no evidence regarding whether this installation was
completed, or, if it was, whether it permitted complainant to adequately
hear the telephone calls she received.
In a letter from complainant to her Division Director (DD) dated May
2, 1995, complainant referred to a conversation between herself and
DD earlier that day regarding interpersonal difficulties complainant
was having with some of her coworkers. In this letter, complainant
discussed the problems she was having with certain other employees as a
result of animosity those other employees held for each other, and the
difficulties their conflict was causing for complainant. Complainant
made no reference to her hearing difficulties or the agency's efforts
to accommodate those difficulties. In a memorandum dated June 28,
1995, complainant tendered her resignation, effective July 7, 1995.
She made no mention in the memorandum of the reason for her resignation,
her hearing difficulties, or the agency's actions or inactions in respect
to accommodating her hearing difficulties. After contacting an agency
EEO Counselor, complainant filed the instant complaint, alleging that
she had been discriminated against as described above.<2>
At the conclusion of the agency's investigation into complainant's
complaint, the agency issued a FAD, finding that she had failed to
establish that she had been subjected to unlawful discrimination as
claimed. In its FAD, the agency found that complainant had failed to
establish that she was an individual with a disability for purposes of
coverage under the Rehabilitation Act. The agency further found that
the evidence showed that agency management was not aware that she had a
hearing impairment, and that even though one month prior to complainant's
resignation DD became aware that she had difficulty hearing, complainant
did not inform DD that her hearing difficulty was preventing her from
performing her job duties. The agency also found that complainant had
not requested a reasonable accommodation for a disability, and that
the evidence did not support her constructive discharge claim, as she
had failed to show that she had suffered any unlawful discrimination.
This appeal followed.
As an initial matter, we note that the agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that the accommodation would cause an undue hardship upon its operations.
29 C.F.R. � 1630.9(a); Enforcement Guidance on Reasonable Accommodation
and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice
No. 915.002, at 2-7 (Mar. 1, 1999). Once the agency becomes aware that
an employee is requesting a reasonable accommodation, it may be necessary
to engage in an informal, interactive process with the individual in
order to identify his limitations as well as potential accommodations
that could overcome those limitations. 29 C.F.R. � 1630.2(o)(3).
This interactive process should be a problem-solving approach that
includes: an analysis of the job to determine its purpose and essential
functions; consultations with the disabled individual; an assessment
of the effectiveness of potential accommodations; and consideration
of the disabled individual's preferences. 29 C.F.R. pt.1630,
app. � 1630.9. See also Polen v. Department of Defense, EEOC Appeal
No. 01970984 (Jan. 16, 2001) (noting that if more than one potential
accommodation is effective, �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�) (quoting 29 C.F.R. pt. 1630, app. � 1630.9).
The exact nature of this dialogue will vary according to the particular
circumstances. EEOC Enforcement Guidance on Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act, EEOC Notice
No. 915-002 (Mar. 1, 1999), p. 13. However, an agency's failure to
engage in the interactive process is not itself a per se violation of
the Rehabilitation Act. Barnard v. United States Postal Serv., EEOC
Appeal No. 07A10002 (Aug. 2, 2002).
Our review of the record on appeal reveals that complainant has failed to
establish that she was subjected to unlawful discrimination as claimed.
This is because, even assuming for the sake of this appeal that she has
established that at the relevant time she was a qualified individual
with a disability eligible for coverage under the Rehabilitation Act,
the evidence does not show that the agency failed to engage complainant
in the interactive process, or to attempt to provide complainant with
a reasonable accommodation. As stated above, the record reveals that,
despite the agency's finding that it was not made aware of complainant's
hearing difficulties until May, 1995, complainant had requested as early
as August, 1994, that the agency accommodate her hearing difficulties,
and that the agency subsequently took steps to accommodate complainant's
condition.
The record does not contain, however, any evidence that the agency's
accommodation efforts were unsuccessful, or that complainant notified
the agency that its efforts were deficient. Nor does the record contain
any evidence, other than her unsupported assertion, that she requested to
be placed in a position which did not involve telephone duties. We note
that the record shows that complainant received a rating of �outstanding�
in her October, 1993 through September, 1994, performance appraisal, as
well as a Certificate for Excellence in Performance in December, 1994.
In her May 2, 1995, letter to DD, complainant thanked him for telling
her that she was doing a good job. There is simply no indication in the
record that the agency failed to provide complainant with an effective
accommodation.
We next address complainant's constructive discharge claim.
A discriminatory constructive discharge occurs when the employer,
motivated by discriminatory or retaliatory animus, creates working
conditions that are so difficult, unpleasant, or intolerable that a
reasonable person in the complainant's position would feel compelled
to resign. In other words, the employee is essentially forced to resign
under circumstances where the resignation is tantamount to the employer's
termination or discharge of the employee. Kimzey v. Wal-Mart Stores,
Inc., 107 F.3d 568, 574 (8th Cir. 1997). The Commission has adopted
a three-pronged test for establishing a constructive discharge.
A complainant must show that: (1) a reasonable person in his or
her position would have found the working conditions intolerable;
(2) conduct which constituted prohibited discriminatory treatment
created the intolerable working conditions; and (3) the complainant's
involuntary resignation resulted from the intolerable working conditions.
Greer v. United States Postal Serv., EEOC Appeal Nos. 01976756, 01976792
(Dec. 29, 2000) (citing Taylor v. Department of Defense, EEOC Request
No. 05900630 (July 20, 1990)). While complainant claimed in her May 2,
1995, letter to DD that there were interpersonal problems between two of
her coworkers, and that she was being affected in the workplace by the
animosity these two coworkers felt for each other, there is no indication
that this problem was related to complainant's hearing difficulties.
Furthermore, there is no indication in the record that complainant was
subjected to intolerable working conditions which arose out of conduct
which constituted prohibited discrimination. Accordingly, we find that
she has failed to prove her constructive discharge claim.
Therefore, 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, it is the decision of the
Commission to AFFIRM the agency's 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
August 28, 2002
Date
1 Complainant contends that she contacted the Fair Housing Enforcement
Office's (FHEO) Director with this concern. The FHEO Director, who had
retired from the agency prior to complainant's resignation, was contacted
by the EEO investigator in February, 2000, and stated that he could not
recall being contacted by complainant as she claimed.
2 The agency initially dismissed the complaint on the ground that
complainant failed to contact an EEO counselor within forty-five days of
the alleged discriminatory incident. Complainant appealed the dismissal
to the Commission, and we ultimately vacated the agency's dismissal
and remanded the complaint to the agency for continued processing.
Cox v. Department of Housing & Urban Dev., EEOC Appeal No. 01972354
(Sept. 26, 1997); request for reconsideration granted, EEOC Request
No. 05980083 (July 30, 1998).