Petition for Writ of Certiorari — Johnson v. Shalala

“ ‘AUG 16 1993

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

SHARON JOHNSON,

Petitioner,

DONNA SHALALA, SECRETARY OF

HEALTH AND HUMAN SERVICES,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Joseph M. Sellers S. William Livingston, Jr.*

Washington Lawyers’ Ronald J. Krotoszynski, Jr.

Committee for Civil Rights Covington & Burling

and Urban Affairs 1201 Pennsylvania Ave., N.W.

1400 I Street, N.W. P.O. Box 7566

Suite 450 Washington, D.C. 20044

Washington, D.C. 20005 (202) 662-6000

(202) 682-5900 Attorneys for Petitioner

Sharon Johnson

August 16, 1993 *Counsel of Record

QUESTIONS PRESENTED

1. In order to establish a claim of constructive discharge

under the federal statutes prohibiting discrimination in

employment, is it necessary for a plaintiff to prove not only

that a reasonable person in the plaintiff's position would have

regarded the working conditions as intolerable, but also that

the employer acted with a “deliberate intent" to force the

plaintiff to quit?

2. Is direct evidence of a deliberate intent to force an

employee to resign required in order to prove a claim of

constructive discharge under the Rehabilitation Act of 1973,

28 U.S.C. § 701 et seqg., whenever a federal employer makes

some partial effort to accommodate the employee’s disability?

LIST OF PARTIES

The parties in these consolidated appeals were Dr. Sharon

Johnson, appellant in Nos. 92-1815 and 92-1846, and Donna

Shalala, Secretary of the Department of Health and Human

Services, appellant in Nos. 92-1109 and 92-1816.”

V/

The Washington, D.C. Council of Lawyers participated as an amicus

curiae, in Nos. 92-1815 and 92-1846, regarding certain attorneys’ fees

issues that were rendered moot by the Fourth Circuit’s disposition of the

case.

ii

TABLE OF CONTENTS

Page

oo 8, errr ere ee ere ee l

STATEMENT OF JURISDICTION .......... 2

FEDERAL STATUTES INVOLVED ......... 2

STATEMENT OF THE CASE ....-c20csc80% 2

REASONS TO GRANT THE PETITION ....... 4

1. This Case Presents An Important Question of

Federal Law On Which The Circuit Courts Have

Reached Inconsistent Results ............ 4

2. The Fourth Circuit’s Decision Inappropriately

Requires "Direct Evidence" Of "Deliberate

DE se ee es oe ee ee 8

CAPE, 6 be 6 awe eee eee eee 11

ESE FA 6 6 wo ok ee eee la

ws a rr are mr grr ye! 12a

PP Ge kn + 6 See 15a

PPS Pk ee ee eee 43a

TABLE OF AUTHORITIES

CASES

Page

Alexander v. Choate, 469 U.S. 287 (1985) ..... 7

Aviles-Martinez v. Monroig, 963 F.2d 2

I ae kG kg ck we ee ee 8 4, 7

Bourque v. Powell Electric Manufacturing Co.,

er meme Gee SE. EU) ww wt ee 5, 8, 11

Boze v. Branstetter, 912 F.2d 801

ek aks bk se ek es 11

Bristow v. Daily Press, Inc., 770 F.2d 1251

I eee 10

Brooms v. Regal Tube Co., 881 F.2d 412

EE kk 5 gp ew 5 8 ek ht a

Buckley v. Hospital Corp. of America, Inc..,

ae eee cee Ge. 1965)... . 2... a

Carter v. Bennett, 840 F.2d 63

ee he tt tt te 7

Clark v. Marsh, 665 F.2d 1168 (D.C. Cir. 1981) . 11

Daniels v. Essex Group, Inc., 937 F.2d 1264

EE 5

Derr v. Gulf Oil Corp. , 796 F.2d 340

EE ee 4,7, 8

iV

TABLE OF AUTHORITIES

Continued

Page

Furnco Construction Co. v. Waters,

ee i ee RO a iy 6:6 ea ele ee 5k ee a 8, 10

Goss v. Exxon Office Systems Co.,

yew fee fe ae | ee 4,7

Gray v. York Newspapers, Inc., 957 F.2d 1070

6 |. ere rr ere ae 4

Greenberg v. Hilton International Co.,

ae ee ee Ce es BD 6 kk ee ee a

Henry v. Lennox Industrial, Inc..,

768 F.2d 746 (6th Cir. 1985) ............. 6

Holsey v. Armour & Co., 743 F.2d 199

(4th Cir. 1984), cert. denied,

een tie kot a's oe ee ee ee 5, 10

Hopkins v. Price Waterhouse, 825 F.2d 458

(D.C. Cir. 1987), rev’d, 490 U.S. 228 (1989) ... 4,7

Johnson v. Bunny Bread Co., 646 F.2d 1250

Nee ae ee are ere 5,9

Junior v. Texaco, Inc., 688 F.2d 377

SU I lik hy aw a RT 6c 5

Kent by Gillespie v. Derwinski,

790 F. Supp. 1032 (E.D. Wash. 1991)........ 8

Vv

TABLE OF AUTHORITIES

Continued

Page

Nolan v. Cleland, 686 F.2d 806

Pe I er ee 8

Pittman v. Hattiesburg Municipal Separate

School Dist., 644 F.2d 1071 (Sth Cir. 1981) ....4,5,7

Pushkin v. Regents of the University

of Colorado, 658 F.2d 1372 (10th Cir. 1981)... 10

Prewitt v. United States Postal Service,

662 F.2d 292 (Sth Cir. 1981) ............. 10

Satterwhite v. Smith, 744 F.2d 1380

Ge eh es bbe ok kb ae ss 11

Smith v. Cleburne County Hospital, 870 F.2d 1375

(8th Cir.), cert. denied, 493 U.S. 847 (1989) .... 9

Southeastern Community College v. Davis, 442

Nk ge Se 5 yak @ go kL wk ea 7

Watson v. Nationwide Insurance Co..,

823 F.2d 360 (9th Cir. 1987) ............. 4

Yates v. Avco Corp., 819 F.2d 630

ee ee GF ee og oe aw 5 eS 6

STATUTES

oe le BORD in ee ck ee eee ke. 2

OP Men Pe, ns kk os hv we een 2

vi

TABLE OF AUTHORITIES

Continued

Page

te Rete ye ee rer ere rer re 6

a FR le Ses 2S er eer 6

LEGISLATIVE HISTORY

Sum Ge, TG. Deo oe CEFIZ) ww te te 7

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

No.

—

: SHARON JOHNSON,

fo Petitioner,

V.

DONNA SHALALA, SECRETARY

: OF HEALTH AND HUMAN SERVICES,

Respondent.

“hg

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals for the Fourth

Circuit, reported at 991 F.2d 126, is reprinted in Appendix

A at pp. la-1la. The panel’s order denying rehearing is

reprinted in Appendix B at pp. 12a-14a. The district court’s

unpublished opinion and order entering judgment in favor of

petitioner are reprinted respectively in Appendix C at pp.

[5a-42a and Appendix D at pp. 43a-44a.

2

STATEMENT OF JURISDICTION

The opinion of the Court of Appeals was released on

April 20, 1993. On May 4, 1993, petitioner filed a petition

for rehearing and suggestion for rehearing en banc, which

was denied on May 17, 1993. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

FEDERAL STATUTES INVOLVED

This case involves the proper interpretation of 29 U.S.C.

§§ 791, 794, which are reproduced in Appendix E, at pp.

45a-50a.

STATEMENT OF THE CASE

Beginning in August 1985, petitioner, Dr. Sharon

Johnson, sought from her employer, the National Institutes of

Health (the "NIH"), modifications in her daily work schedule

to accommodate her disabilities. After repeatedly failing to

obtain any significant accommodation of her disabilities

during the course of an entire year, petitioner resigned her

employment under protest on August 20, 1986. Pet. App.

3a-7a, 18a-28a. Petitioner thereafter brought this suit,

claiming that she had been "constructively discharged” from

her position at NIH.

Following a bench trial, the district court found that NIH

violated 29 U.S.C. § 701 et seg. by failing reasonably to

accommodate petitioner’s disabilities. Pet. App. 36a-38a.

The district court also found that Dr. Johnson was subjected

to intolerable working conditions that eventually forced her to

terminate her employment. Pet. App. 37a-38a. Consistent

with the Fourth Circuit’s precedent, the district court then

analyzed whether NIH acted with "deliberate intent" to cause

petitioner to resign her employment, and found that such

intent existed, based on its subsidiary factual findings that:

(1) NIH had suggested that Dr. Johnson consider disability

3

retirement in its response to her initial request for accommo-

dations, (2) her NIH supervisor prepared a false performance

evaluation to support a determination of eligibility for

disability retirement, and (3) NIH took no significant steps to

accommodate Dr. Johnson’s disabilities. Pet. App. 37a-38a.

The NIH noted a timely appeal to the U.S. Court of

Appeals for the Fourth Circuit, seeking review only of the

finding that the NIH had deliberately intended to cause Dr.

Johnson’s resignation. Pet App. 8a. Accordingly, the NIH

declined to seek review of the findings that Dr. Johnson’s

disabilities were not reasonably accommodated or that the re-

peated failure to accommodate her disabilities created intolera-

ble working conditions. See id.

On appeal, the Fourth Circuit accepted the district court’s

subsidiary findings, but held as a matter of law that NIH’s

partial (but inadequate) efforts to accommodate petitioner’ s

disabilities precluded a finding of "deliberate intent" to force

Dr. Johnson to resign. "The evidence here is insufficient to

show a deliberate intent to discharge an employee when there

has been an attempt to accommodate that same employee,

even though the accommodation falls short of [what is

required by] the Rehabilitation Act." Pet. App. 10a.

The Fourth Circuit expressed the fear that the district

court’s approach "threatens to convert every failure to

accommodate under the Rehabilitation Act into a potential

claim for constructive discharge." Pet. App. 9a. Thus, the

Court of Appeals held that to prevail on a constructive

discharge theory, an employee with a disability whose

employer has offered partial or ineffective accommodations

must present direct evidence that the employer deliberately

intended to force the employee to resign. Pet. App. 1 la.

4

REASONS TO GRANT THE PETITION

1. This Case Presents An Important Question of

Federal Law On Which The Circuit Courts Have

Reached Inconsistent Results

There is a sharp split among the circuits as to the proper

standard for establishing a constructive discharge in employ-

ment discrimination cases.’ Three distinct and inconsistent

approaches have been followed by various circuits.

Most courts of appeals do not require a plaintiff to show

that the employer harbored a "deliberate intent" to force the

employee to resign in order to establish a constructive

discharge.” In these circuits, "[t]he focus is upon the rea-

A “constructive discharge" occurs when an employee as a practical

matter is forced to resign. The application of the constructive discharge

doctrine generally does not vary depending on the employment statute that

is at issue; the same rules apply for establishing a constructive discharge

regardless of the particular statute at issue. Gray v. York Newspapers,

Inc., 957 F.2d 1070, 1079 n.5 (3rd Cir. 1992) ("the doctrine of construc-

tive discharge is the same in all employee discrimination claims"); see also

Goss v. Exxon Office Sys. Co., 747 F.2d 885, 887 (3rd Cir. 1984)

(explaining that federal courts borrowed the constructive discharge doctrine

from labor law and listing cases that apply the constructive discharge

doctrine across various civil rights statutes).

ry Hopkins v. Price Waterhouse, 825 F.2d 458, 472 (D.C. Cir. 1987)

("a number of cases . . . have rejected the notion that the employer must

have the specific intent of forcing the employee to quit"), rev’d on other

grounds, 490 U.S. 228 (1989); Watson v. Nationwide Ins. Co., 823 F.2d

360, 361 (9th Cir. 1987) ("plaintiff need not show that the employer

subjectively intended to force the employee to resign"); Derr v. Gulf Oil

Corp., 796 F.2d 340, 343-44 (10th Cir. 1986) ("an employer’s subjective

intent is irrelevant"); Goss v. Exxon Office Sys., Inc., 747 F.2d at 887-88

("[w]e hold that no finding of a specific intent on the part of the employer

to bring about a discharge is required for the application of the construc-

tive discharge doctrine"); Pittman v. Hattiesburg Mun. Separate School

Dist. , 644 F.2d 1071, 1077 (Sth Cir. 1981) ("[t]he employee . . . does not

have to prove it was the employer’s purpose to force the employee to

resign"); see Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir. 1992)

(holding that a plaintiff must demonstrate that her working conditions in

(continued...)

5

sonable reaction of the employee [to her working conditions];

it is not necessary to show that the employer subjectively

intended to force a resignation." Junior v. Texaco, Inc. , 688

F.2d 377, 379 (Sth Cir. 1982). Thus, the finder of fact is

under no obligation "to divine the state of mind of the

employer." Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61,

65 (Sth Cir. 1980). Under this standard, the employee need

show only that he or she was faced with working conditions

under which "a reasonable person in the employee’s position

and circumstances would have felt compelled to resign."

Pittman, 644 F.2d at 1077.

Taking a markedly different approach, at least two other

courts of appeals, including the court below, require a

plaintiff to show that the employer possessed a "deliberate

intent" to force the employee to resign in order to establish

a constructive discharge. In these circuits, if the employee

fails to show that the employer possessed a "deliberate intent"

to force the employee to resign, no constructive discharge

claim can be sustained.’

2(...continued)

continued employment "would have been so difficult or unpleasant that a

reasonable person in the employee’s shoes would have felt compelled to

resign," without requiring any showing regarding the employer’s

subjective intent); Greenberg v. Hilton Int’l Co. , 870 F.2d 926, 936 (2d

Cir. 1989) (same); Buckley v. Hospital Corp. of America, Inc., 758 F.2d

1525, 1530-31 (11th Cir. 1985) (same); see also Brooms v. Regal Tube

Co., 881 F.2d 412, 423-24 (7th Cir. 1989) ("[w]e agree with the district

court’s decision to adopt a test which focuses upon the impact of [the

employer’s] actions upon a reasonable person"); cof. Daniels v. Essex

Group, Inc., 937 F.2d 1264, 1272 (7th Cir. 1991) (holding that liability

for a constructive discharge exists when an employer "knew or had reason

to know about the existence of intolerable working conditions” and "fails

to take appropriate remedial action").

¥ See Holsey v. Armour & Co., 743 F.2d 199, 209 (4th Cir. 1984),

cert. denied, 470 U.S. 1028 ( 1985); Johnson v. Bunny Bread Co., 646

F.2d 1250, 1256 (8th Cir. 1981).

6

The Sixth Circuit has opted for still another approach,

under which a plaintiff must show both that the working

conditions were intolerable and that there was some "aggra-

vating factor." See Yates v. Avco Corp., 819 F.2d 630, 637

(6th Cir. 1987); Henry v. Lennox Indus., Inc. , 768 F.2d 746,

752 (6th Cir. 1985). In the Sixth Circuit, "deliberate intent"

could serve as the "aggravating factor," but would probably

not be a prerequisite to proving a constructive discharge.

See, e.g., Yates, 819 F.2d at 637.

Thus, at present there are three different and competing

versions of the law of constructive discharge. In conse-

quence, a plaintiff's ability to recover for a constructive

discharge under the Rehabilitation Act and other federal

employment discrimination statutes such as Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000¢e er

seq., and the Americans With Disabilities Act, 42 U.S.C.

§ 12101 et seg., will turn in many cases on which circuit’s

law applies. The impact of this conflict between the circuits

is particularly apparent here because, according to the

standards set forth in the majority of circuits, Dr. Johnson set

forth a viable claim of constructive discharge. The only

finding at issue on appeal was the determination that NIH had

acted with deliberate intent; the finding that intolerable

working conditions existed was neither challenged nor

disturbed on appeal. The findings left unchallenged here

would have sufficed in most circuits, therefore, to sustain a

claim of constructive discharge.

Moreover, this difference in legal standards among the

circuits by which constructive discharge claims are assessed

is critical to the effectiveness of the protections afforded by

the disability laws. One of the primary purposes of the

Rehabilitation Act was to ensure that persons with disabilities

were not unnecessarily precluded or forced from employment

a —

7

because of their disabilities.’ Congress passed the Rehabili-

tation Act to remedy the "glaring neglect" of the disabled.

118 Cong. Rec. 526 (1972) (Statement of Sen. Percy). The

framers of the Act recognized that the nation no longer could

“tolerate the invisibility of the handicapped in America." 118

Cong. Rec. 525-526 (1972) (Statement of Sen. Humphrey).

As this Court has noted, "much of the conduct that Congress

sought to alter in passing the Rehabilitation Act would be

difficult if not impossible to reach were the Act construed to

prescribe only conduct fueled by a discriminatory intent."

Alexander v. Choate, 469 U.S. 287, 296-97 (1985). To

achieve the remedial purposes that led Congress to pass the

Rehabilitation Act, "harms resulting from action that discrimi-

nated by effect as well as by design" must be rooted out. Jd.

at 297.

An employer that is insensitive to the needs of an

employee with a disability will in many cases cause the same

injuries to a disabled employee as does an employer who

intentionally seeks to force disabled employees to resign. In

both cases, the disabled employee may be forced to resign in

order to escape intolerable working conditions. Accordingly,

the constructive discharge standard used by the Fourth and

Eighth Circuits is inconsistent with the policy of eliminating

the barriers that the disabled must overcome in order to enjoy

full participation in the federal workplace. See Pet. App.

10a-lla; cf. Aviles-Martinez, 963 F.2d at 6; Brooms, 881

F.2d at 423; Greenberg, 870 F.2d at 936; Hopkins, 825 F.2d

at 472; Watson, 823 F.2d at 361; Derr, 796 F.2d at 343-44:

Buckley, 758 F.2d at 1530-31; Goss, 747 F.2d at 887-88:

Pittman, 644 F.2d at 1077.

“ Indeed, "[tJhe legislative history of the Rehabilitation Act ‘demon-

strates that Congress intended that the federal government be a model

employer of the handicapped.’" Carter v. Bennett, 840 F.2d 63, 65 (D.C.

Cir. 1988) (quoting Gardner v. Morris, 752 F.2d 1271, 1280 (8th Cir.

1985)); see also Southeastern Community College v. Davis, 442 U.S. 397,

410 (1979).

—

8

Moreover, the Fourth Circuit has imposed an evidentiary

burden that is unnecessarily great. As most circuit courts

have held, an employer who creates intolerable working

conditions which it fails to correct demonstrates that it intends

to force the resignation of employees afflicted by the intolera-

ble conditions. See Derr, 796 F.2d at 344; Bourque, 617

F.2d at 65. No more should be necessary. The logical

consequences of an employer’s action, or inaction, should be

sufficient to support a constructive discharge claim, just as

they will suffice to establish intent for other claims under the

civil rights acts. See Furnco Constr. Co. v. Waters, 438

U.S. 567, 577 (1978); see also Kent by Gillespie v.

Derwinski, 790 F. Supp. 1032, 1040-41 (E.D. Wash. 1991).

If allowed to stand, the decision below will create a

major impediment to the full implementation of the Rehabili-

tation Act, and may also have a significant and adverse effect

on the implementation of other employment discrimination

laws. "[A] stringent requirement that an employer’s intent be

shown is ‘inconsistent with the realities of modern employ-

ment.’" Nolan v. Cleland, 686 F.2d at 806, 814 n.17 (9th

Cir. 1982) (quoting Bourque v. Powell Electrical Mfg. Co..,

617 F.2d 61, 65 (Sth Cir. 1980)). The courts of appeals are

divided on the question whether a showing of deliberate intent

is a mandatory element of a constructive discharge claim. In

these circumstances, guidance from this Court is both

necessary and appropriate.

2. The Fourth Circuit’s Decision Inappropriately

Requires "Direct Evidence" Of "Deliberate

Intent"

In addition to reaffirming its requirement that deliberate

intent be proved to establish a constructive discharge claim,

the Fourth Circuit also held that, as long as an employer

makes some effort to accommodate an employee’s known

disabilities, only direct evidence of deliberate intent to force

the employee’s resignation will suffice to support a construc-

9

tive discharge claim. Pet. App. lla. This holding sets an

evidentiary requirement for claims of constructive discharge

under the disability laws that is so elevated as to render such

claims beyond reach in all but the rarest cases. In reaching

this holding, the Fourth Circuit stands along in immunizing

from liability employers who take partial, ineffective steps

toward resolving a civil rights violation. The Fourth

Circuit’s decision presents an important question of federal

employment law, about which this Court should provide

guidance.

Even assuming arguendo the propriety of requiring a

showing of deliberate intent, the Fourth Circuit’s decision to

reject the district court’s finding of deliberate intent is in

error. There was ample circumstantial evidence from which

a trier of fact could infer a deliberate intent on the part of

NIH officials to get rid of petitioner. In fact, that is precisely

the inference drawn by the district court based on undisputed

evidence of such facts as: (1) NIH’s initial response to

petitioner’s request for accommodation included a "sugges-

tion" that she apply for disability retirement, and (2) her

immediate supervisor prepared a false performance evaluation

with a crude attempt to forge petitioner’s signature, ostensibly

to “help" plaintiff qualify for disability retirement benefits.

Pet. App. 18a-19a, 25a-26a, 37a-38a.

But instead of sustaining the district court’s inference, the

Fourth Circuit held that evidence of a partial failure to

accommodate a disability, even when such action leaves in

place intolerable working conditions, defeats a finding of

* Although the Eighth Circuit concurs in the Fourth Circuit’s

“deliberate intent" requirement, we have found no circuit court decision,

other than the decision below, that largely immunizes from liability

employers who take partial, ineffective steps toward resolving a civil

rights violation. Cf. Smith v. Cleburne County Hosp., 870 F.2d 1375,

1380-81 (8th Cir.), cert. denied, 493 U.S. 847 (1989); Johnson v. Bunny

Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981).

10

deliberate intent, in the absence of "direct evidence" of

impermissible intent.” Pet. App. 10a-11a.

The decision below departs significantly from the

standard previously established by even the Fourth Circuit for

protecting against constructive discharge.” More impor-

tantly, the decision below is inconsistent with this Court’s

ruling in the employment discrimination context that employ-

ers may fairly be assumed to have intended the natural

consequences of their actions or inactions. Furnco Constr.

Co. v. Waters, 438 U.S. 567, 577 (1978) ("more often than

not people do not act in a totally arbitrary manner, without

any underlying reasons, especially in a business setting").

The practical consequence of the decision below is clear.

"It would be a rare case indeed in which a hostile discrimina-

tory purpose or subjective intent to discriminate solely on the

basis of handicap could be shown."* Pushkin v. Regents of

£ Previously, the Fourth Circuit had held that "[i)ntent may be inferred

through circumstantial evidence, including a failure to act in the face of

known intolerable conditions." Bristow v. Daily Press, Inc., 770 F.2d

1251, 1255 (4th Cir. 1985). Thus, although the Fourth Circuit prior to

Johnson had required civil! rights plaintiffs to show that their employer

possessed a “deliberate intent” to force them to resign in order to establish

a constructive discharge, it allowed such plaintiffs to meet this burden by

showing the existence of intolerable working conditions. Id.

Y See Holsey v. Armour & Co., 743 F.2d at 209 (holding that

deliberate intent may be inferred from the existence of intolerable working

conditions).

Moreover, the Fourth Circuit’s concern that affirming the district

court’s judgment would "threaten[] to convert every failure to accommo-

date" into a constructive discharge claim is misplaced. Pet. App. 9a. An

employer’s failure to accommodate an employee’s disability would support

a claim of constructive discharge only if the employee’s working

conditions are intolerable, and remain intolerable as a result of the

employer’s failure to provide effective accommodations. Often this will

not be the case. A failure reasonably to accommodate a disabled

employee’s desire for a promotion, for example, will support a claim

under the Rehabilitation Act, see Prewitt v. United States Postal Serv.,

(continued...)

11

the Univ. of Colorado, 658 F.2d 1372, 1385 (10th Cir.

1981).

In effect, the Fourth Circuit has significantly weakened

the incentive for employers to comply fully and effectively

with the requirements of the Rehabilitation Act and other

statutes prohibiting discrimination in employment. See

generally Boze v. Branstetter, 912 F.2d 801, 804 (Sth Cir.

1990). This result is inconsistent with the mandate of the

Rehabilitation Act, implicates an important question of federal

employment law, and therefore should not be permitted to

stand.

CONCLUSION

This petition should be granted in order to resolve

important and recurring legal issues arising under the Rehabil-

itation Act of 1973 and other statutes prohibiting employment

#(.. continued)

662 F.2d 292, 307-09 (Sth Cir. 1981), even though denials of promotions

standing alone rarely if ever are sufficient to support a claim of construc-

tive discharge. See Bourque, 617 F.2d at 65-66; cf. Satterwhite v. Smith,

744 F.2d 1380, 1383 (9th Cir. 1984) (finding a constructive discharge

where employer refused to promote employee and other aggravating

circumstances were present); Clark v. Marsh, 665 F.2d 1168, 1174 (D.C.

Cir. 1981) (same).

12

discrimination, including an issue as to which there is a split

among the Circuit Courts of Appeals.

. Respectfully Submitted,

Joseph M. Sellers S. William Livingston, Jr.*

Washington Lawyers’ Ronald J. Krotoszynski, Jr.

Committee for Civil Rights Covington & Burling

and Urban Affairs 1201 Pennsylvania Ave., N.W.

1400 I Street, N.W. P.O. Box 7566

Suite 450 Washington, D.C. 20044

Washington, D.C. 20005 (202) 662-6000

(202) 682-5900 Attorneys for Petitioner

Sharon Johnson

*Counsel of Record

August 16, 1993