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.