01A00606
08-18-2000
Barbara J. Thomas, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Barbara J. Thomas v. HHS
01A00606
August 18, 2000
.
Barbara J. Thomas,
Complainant,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A00606
Agency No. A0A-002-97
Hearing No. 100-98-7992X
DECISION
Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405), the Commission accepts the complainant's appeal from
the agency's final September 23, 1999 in the above-entitled matter.<1>
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
of September 23, 1999 because the Administrative Judge's issuance of a
decision without a hearing was appropriate and a preponderance of the
record evidence does not establish that discrimination occurred.
Specifically, the record does not establish that the agency placed the
complainant on sick leave restriction on October 18, 1996, and extended
the sick leave restriction on March 14, 1997, because of her race
(African-American) rather than because she had a record of unexcused
absences and subsequently failed to adhere to the leave conditions
placed upon her. The record also does not establish that the agency
denied the complainant three days of requested religious compensatory
time at Easter because of her race, rather than because the agency
did not have sufficient secretarial work for her to earn the requested
compensatory time. In addition, the Commission observes that the agency
indicated that it would approve the use of eight hours of annual leave
on March 3, 1997, in lieu of the requested religious compensatory time.
Therefore, the Commission finds that the complainant was not denied a
reasonable accommodation for her religious beliefs.
Finally, regarding the complainant's harassment claim, the complainant
averred that on January 23, 1997, the Director of the Office of Elder
Rights Protection (OERP) denied her request to work an alternative work
schedule (5-4-9) with Friday as her day off; closely monitored her
absences from the work area; on September 12, 1997, told the complainant
�shut-up and go to my office;� yelled out the window on one occasion to
the complainant in a demeaning manner, that it was 5:25 p.m. and not
5:30 p.m. after the complainant had left the building; and, on April 24,
1997, noted on her calendar that the complainant was on an unauthorized
coffee break when the complainant was en route to a training class.
The complainant also averred that on April 3, 1997, the Deputy Director,
Administration on Agency (AOA) proposed her suspension and she was
subsequently suspended for 15 days.
The OERP Director denied telling the complainant to shut up. She averred
that she did not approve the alternative work schedule because there
would not have been anyone in the office to supervise the complainant
for the extra long days she wanted to work. As to the statement about
the complainant leaving early; noting absences on her calendar; and
the extra scrutiny of the complainant's whereabouts, the OERP Director
averred that these actions were due to the complainant's unauthorized
absences from the work area. The OERP Director also averred that
she proposed the complainant's suspension for ten calendar days, and
that the AOA Deputy concurred in her recommendation for the reasons
contained in the memorandums issued to the complainant. The notice
of proposed suspension specifies that the complainant was charged with
(1) failure to follow the instructions set forth in the letter of leave
restriction of October 18, 1996; (2) absence without leave (32.5 hours,
eight specifications); and (3) placing false information on a time and
attendance document (four specifications).
After a review of the entire record, the Commission finds that the
actions the complainant viewed as harassing, to the extent that they
occurred, were due to the complainant's time and attendance behavior
and to her failure to comply with the leave restriction instructions,
rather than to her race. Therefore, the Commission concludes that the
complainant has not proven that she was subjected to a hostile work
environment because of her race.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 18, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.