Christine R. Humphrey, Appellant,v.John H. Dalton, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01970563 (E.E.O.C. Jan. 29, 1999)

01970563

01-29-1999

Christine R. Humphrey, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.


Christine R. Humphrey v. Department of the Navy

01970563

January 29, 1999

Christine R. Humphrey, )

Appellant, )

)

v. ) Appeal No. 01970563

) Agency No. DON(MC)94-67001-021

John H. Dalton, )

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

Appellant timely appealed the agency's final decision that it had

not discriminated against her in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq., and the

Age Discrimination in Employment Act (ADEA) of 1967, as amended, 29

U.S.C. �621 et seq. The Commission accepts this appeal in accordance

with EEOC Order No. 960.001.

Appellant, a Custodial Worker (regular part-time), filed a formal EEO

complaint on September 20, 1994, alleging that the agency discriminated

against her on the bases of race (African-American), religion (Holiness),

and age (DOB: 9/9/35), when: (1) she was terminated from employment during

her probationary period for alleged excessive use of sick leave, being

unreliable for weekend schedule, and unsatisfactory work performance;

and (2) she was denied assignment or preferred work and awarding of

positions, unfair policy enforcement, overtime work with no compensation,

and subjected to safety misconduct. Following the agency's investigation,

appellant requested a hearing before an EEOC Administrative Judge (AJ).

A hearing was held on May 16, 1996.

On July 10, 1996, the AJ issued a recommended decision (RD) finding no

discrimination. The AJ concluded that appellant failed to establish

a prima facie case of disparate treatment in that she failed to prove

that she was meeting the legitimate expectations of her employer.

Furthermore, she found that the agency's decision to terminate her was

because on her excessive sick leave, unreliability for weekend schedule,

and unsatisfactory performance. She found that the record revealed

appellant used 63.50 hours of sick leave. The record revealed that

appellant's sick leave usage was significantly more than most other

probationary employees hired during this time, with the exception of one

comparative (Black), who had more sick leave (66.25 hours) than appellant,

but who was also terminated. The Comparative was later able to resign

in lieu of termination.<1>

The AJ found that appellant failed to provide any evidence that any of

the issues in allegation (2) were based on her race, religion or age.

Furthermore, the Director, Bachelor's Housing, testified that appellant

used more sick leave than any other part-time probationary employee

and that her performance was lacking. She testified that appellant

should have been able to complete her assignments within eight hours and

that overtime was not warranted. Finally, she testified that although

appellant was required to drive a linen truck, the task was rotated

among the other employees. With respect to appellant's religion, which

appellant testified required her to have every fourth Sunday off, the

Director testified that during the interview for the position, it was

explained to appellant that she would be required to work weekends.

Nevertheless, the Director testified that appellant was not scheduled

on the days she preached.

Appellant's supervisor corroborated the Director's testimony. He

testified that she verbally counseled appellant about her performance

and absenteeism and that appellant complained about her work assignments

and working conditions. She testified that appellant's frequent weekend

absenteeism affected the morale of other employees in that another

employee would have to cover for her on their "off day." Finally, the

Building Maintenance Supervisor testified that although appellant did not

have problems meeting her weekday schedule, she did have problems meeting

her weekend requirements, in that she called in sick on the weekends.

Thus, the AJ concluded that appellant failed to establish a prima facie

case and that she failed to prove that she was discriminated against,

as alleged. On September 2, 1996, the agency issued its final decision

adopting the AJ's RD. It is from this decision that appellant now

appeals.

After a careful review of the record in its entirety, the Commission

finds that the AJ's recommended decision sets forth the relevant facts

and properly analyzes the appropriate regulations, policies and laws.

The Commission has reviewed the parties' statements on appeal and discerns

no basis on which to disturb the AJ's finding of no discrimination.

Accordingly, it is the decision of the Equal Employment Opportunity

Commission to AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Jan 29, 1999

___________________ ____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1One other comparative, (Caucasian, DOB: 8/23/52) had 40.00 hours of sick

leave used, but the record revealed he was a 30 point veteran with a 20%

disability, and all absences were justified.