Edward C. Hill, Jr., Complainant,v.William S. Cohen, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionMay 1, 2000
01980813 (E.E.O.C. May. 1, 2000)

01980813

05-01-2000

Edward C. Hill, Jr., Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.


Edward C. Hill, Jr. v. Department of Defense

01980813

May 1, 2000

Edward C. Hill, Jr., )

Complainant, )

) Appeal No. 01980813

v. ) Agency No. ZA-96-001

)

William S. Cohen, )

Secretary, )

Department of Defense, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision

(FAD) concerning his equal employment opportunity (EEO) complaint of

unlawful employment discrimination 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 of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.<1> The appeal is accepted in accordance with 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

For the following reasons, the agency's decision is AFFIRMED in PART

and REVERSED in PART.

BACKGROUND

During the period in question, complainant was employed as a GS-12

Position Classification Specialist at the agency's Defense Logistics

Agency (DLA) Administrative Support Center in Fort Belvoir, Virginia.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on November 9, 1995

alleging that the agency discriminated him on the bases of race (Black),

religion (Seventh Day Adventist Christian), sex (male) and age (41) when:

(1) he was denied sick leave (accumulated and advanced) and was charged

Absent Without Leave (AWOL);

(2) he was denied change of team leader; and

(3) his work schedule was altered so that his religious needs were not

accommodated.

Issue 1

The record reveals that in September 1994, complainant requested use of

112 hours of accumulated sick leave, which was approved by his supervisor.

Later the same month, he submitted another request for 117.5 hours

of sick leave (85.5 advanced sick leave plus 32.5 hours as a buffer

in case anything came up in the future). At this time, complainant's

leave balance was 34 hours of annual leave and 26.3 hours of sick leave.

The 85.5 hours were approved, but his request for the 32.5 hour buffer was

not approved. When the complainant was informed that buffer leave could

not be approved, he changed his request to 85.5 hours, which was approved.

The record shows that complainant's doctor sent medical documentation

regarding complainant's medical problems and need for an extended leave

of absence from his work on August 13, 1994 and again on September 28,

1994.<2> Despite the fact that complainant's doctor had already sent

medical documentation twice, complainant's supervisor sent complainant

a letter on October 4, 1994 requesting medical documentation based on

his request for 117.5 hours of sick leave. This letter also informed

complainant that he would be placed on AWOL status until this information

was submitted. On October 13, 1994, the supervisor sent complainant

another letter reiterating the need for medical documentation to

support his request for advanced sick leave. The supervisor received

another medical report from complainant's doctor on October 20, 1994,

and she approved his request for advanced sick leave on October 24, 1994

(85.5 hours).

On February 14, 1995, complainant requested 16 hours of sick leave,

which was approved. Since complainant had no sick leave remaining, the

system placed him in a Leave Without Pay (LWOP) category. On February 27,

1995, complainant submitted two requests for advanced leave (24 hours of

advanced sick leave - approved on March 1, 1995; 18 hours of advanced

annual leave - not approved). On March 1, 1995, complainant submitted

another request for advanced sick leave (35.45 hours). This request

was to cover February 14, 15 and 21 through 23. This request was not

approved because all requests are to be submitted in advance, or if an

emergency, immediately upon return to work. Because the request was

not submitted until March 1, 1995, it was considered untimely.

On March 13, 1995, complainant was placed on leave control due to his

failure to follow established leave procedures and his excessive usage of

unscheduled annual and sick leave. On March 15, 1995, complainant called

his supervisor to inform her he would be two hours late because he was

working on his grievance. The supervisor advised him that he was needed

in the office and charged him AWOL based on the leave control letter.

Complainant was also charged AWOL for absences on March 16, April 7 and

April 12. No other employee has been charged AWOL.

Issue 2

The record reveals that although complainant alleged that he was denied

a change in team leader, his supervisor claimed that complainant never

requested such a change. Complainant submitted no evidence to support

the claim that he had requested the change.

Issue 3

The record reveals that complainant had informed his supervisor of his

need to take time off on Friday afternoons for religious observance.

The supervisor approved complainant's request to leave one hour early on

Fridays and make up the time Thursday mornings between December 1993 and

February 1994. The supervisor approved complainant's request again to

leave one and a half hours early on Fridays and work an extra one and

a half hours on Thursdays between November 18, 1994 and February 1995.

In December 1994, the supervisor informed complainant that she would be

putting all employees on a standard schedule in 1995 because the existing

variances in employees' work schedules were too inconvenient for her.

This resulted in complainant no longer being permitted to leave early

on Fridays for worship purposes and make up the time on Thursdays.

Complainant consulted the Employee Relations Office, which advised him

to resolve the matter by taking annual leave. Complainant began to take

annual leave in January 1995, but his supervisor told him that he could

no longer take annual leave on Friday afternoons. Complainant took his

concerns to the Personnel Director and was subsequently permitted to take

annual leave for two and a half hours on Fridays. On March 27, 1995,

complainant requested to use compensatory time for religious observance

on March 31, 1995, and his supervisor approved this request.

At the conclusion of the investigation, the agency informed complainant

of his right to request either an EEO administrative hearing or an

immediate FAD. Complainant did not request a hearing, and the agency

therefore issued a FAD dated October 1, 1997, finding that complainant

had not been discriminated against. It is from this decision that

complainant now appeals.

With regard to Issue 1, the FAD concluded that complainant failed to

establish a prima facie case of discrimination based on gender, age, race

and/or religion because he presented no evidence that similarly situated

individuals not in his protected classes were treated more favorably

under similar circumstances. Specifically, the FAD stated that there was

no showing that similarly situated individuals were treated differently

because, due to complainant's unique history of excessive use of both

annual and sick leave, there were no similarly situated individuals for

comparison with complainant. The FAD also noted that complainant failed

to follow the established procedures for requesting leave.

Regarding Issue 2, the FAD found that complainant failed to establish

a prima facie case of sex discrimination because there was no showing

that similarly situated employees outside of the complainant's protected

class were treated more favorably.<3> The FAD also stated that there

was no showing in the record, other than complainant's formal complaint

and affidavit, that the complainant had actually made the request to

his supervisor for a change of team leader.

Regarding Issue 3, the FAD found that complainant was not discriminated

against when his work schedule was altered so that his religious needs

were not accommodated. <4> The FAD stated that there was no showing

in the record that complainant was ever denied accommodation of his

religious needs. The FAD concluded that complainant failed to establish

a prima facie case of discrimination based on religion because there

was no showing that other employees outside of complainant's protected

class were treated more favorably.

In its conclusion, the FAD stated that even if complainant had

succeeded in establishing a prima facie case of discrimination, the

preponderance of the evidence failed to establish that the reasons

articulated by management for disputed actions were a pretext for

unlawful discrimination. The agency requests that we affirm its FAD.

Complainant made no contentions on appeal.

ANALYSIS AND FINDINGS

Issue 1

Under the three-part evidentiary scheme established by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), complainant has

the initial burden of establishing a prima facie case of discrimination,

i.e., he must put forth facts which if true and unrebutted would create

an inference of discrimination. If complainant meets this burden,

the burden then shifts to the agency to articulate some legitimate,

nondiscriminatory reason for its challenged action. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Complainant

must then prove, by a preponderance of the evidence, that the legitimate

reason articulated by the agency was not its true reason, but was rather a

pretext for discrimination. Id. at 256; St. Mary's Honor Center v. Hicks,

509 U.S. 502, 519 (1993). Although this analysis was developed in the

context of Title VII, it is equally applicable to claims brought under

the ADEA. Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).

In this instance, complainant must establish a prima facie case of

discrimination based on race, sex and age by showing: (1) that he

is a member of a protected class under Title VII and/or ADEA; (2)

that he was subjected to adverse treatment or was denied an employment

benefit or opportunity by the agency; and (3) that similarly situated

individuals not in his protected class were treated more favorably.

O'Neal v. United States Postal Service, EEOC Request No. 05910490 (July

23, 1991). The record is undisputed that complainant is a member of

protected classes and that he was denied sick leave and charged AWOL.

However, complainant has not demonstrated that similarly situated

individuals not in his protected class were treated more favorably.

In order for comparative employees to be considered similarly situated,

all relevant aspects of complainant's employment situation must be

nearly identical to those of the comparative employees. See, e.g.,

Payne v. Illinois Central R.R., 665 F. Supp. 1038, 1043 (W.D. Tenn. 1987).

In the instant case, complainant alleged that younger White female

employees in the office were permitted to take off of work for several

months for medical problems and were not charged AWOL, denied sick

leave or asked to submit medical reports. However, complainant failed

to demonstrate that these employees were similarly situated to him.

Specifically, complainant did not show that the female employees in

his office had similar records regarding pattern of attendance and use

of leave. The record indicates that complainant was unique in his use

of unscheduled annual and sick leave. Because complainant was unable

to demonstrate that there were similarly situated employees not of his

protected groups who were treated more favorably than him, and has not

otherwise presented evidence sufficient to raise the requisite inference,

he has failed to establish a prima facie case of discrimination.

Accordingly, we find that complainant has not established that he was

discriminated against as alleged.

Issue 2

Applying the same analysis to Issue 2, complainant has failed to establish

a prima facie case of sex discrimination because there was no showing that

similarly situated employees outside his protected class were treated

more favorably than him. Nor did he present other evidence sufficient

from which to draw an inference of discrimination. Complainant provided

no evidence that female employees were granted a change of team leader

upon request while his request was denied. In addition, there is doubt

in the record about whether complainant actually made the request for a

change of team leader. Complainant failed to provide any evidence that

he had made such a request. Accordingly, we find that complainant has

not established that he was discriminated against as alleged.

Issue 3

Title VII places a duty upon employers to reasonably accommodate religious

beliefs and practices, unless such accommodation would place an undue

hardship upon the employer. In order to establish a prima facie case of

failure by the agency to accommodate complainant's religion, complainant

must show that: (1) he has a bona fide religious belief, the practice of

which conflicted with an employment duty; (2) he informed the agency of

this belief and conflict; and (3) the agency nevertheless enforced its

requirement against complainant. Heller v. EBB Auto Co., 8 F.3d 1433,

1438 (9th Cir. 1993); Partridge v. United States Postal Service, EEOC

Appeal No. 01943980 (April 11, 1996).

Once the prima facie case is established, the burden shifts to the agency

to demonstrate that it cannot reasonably accommodate complainant without

incurring undue hardship, or that complainant has been accommodated.

Title VII, � 701(j), 42 U.S.C. 2000e(j); 29 C.F.R. � 1605.2(c)(1); Protos

v. Volkswagen of America, Inc., 797 F.2d 129, 133 (3rd Cir. 1986).

The Supreme Court has found that accommodations which create more

than de minimis monetary or efficiency costs cause undue hardship.

TransWorld Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). A showing of

undue hardship cannot be merely hypothetical, but must instead include

evidence of an actual imposition on coworkers or disruption of work

schedules or routines. Tooley v. Martin Marietta, 648 F.2d 519, 521

(4th Cir. 1987).

The Commission has found acceptable several alternatives for accommodating

conflicts between work schedules and religious practices, including

voluntary substitutes and swaps, flexible scheduling and lateral transfer.

See 29 C.F.R. � 1605.2(d). Flexible scheduling can include the use

of compensatory time to make up time lost due to the observance of

religious practices. See 5 U.S.C. � 5550a. When there is more than one

method of accommodation available which would not cause undue hardship,

the agency must offer the alternative which least disadvantages the

individual with respect to his or her employment opportunities, such

as compensation, terms, conditions or privileges of employment. See 29

C.F.R. � 1605.2(c)(2)(ii).

Applying this analysis to the instant case, we find that complainant

established a prima facie case of discrimination. Pursuant to his

bona fide religious belief as a Seventh Day Adventist, complainant

wanted to worship on his Sabbath, which begins at sunset on Friday.

This conflicted with his work schedule, and complainant notified the

agency of the conflict. Between December 1993 and February 1994, the

agency accommodated complainant's need to leave early on Fridays for

worship purposes by allowing him to work compensatory time on Thursdays

to make up the time lost. A similar arrangement was made again between

complainant and the agency for the period between November 1994 and

February 1995. However, beginning in January 1995, complainant's

supervisor stopped allowing complainant to work compensatory time on

Thursdays and enforced the agency's requirement that complainant work

on Friday afternoons. In order to leave early on Fridays for worship

purposes, complainant was required to use annual leave.

We disagree with the determination in the agency's final decision that

complainant was never denied accommodation for his religious needs.

When the agency terminated the arrangement by which complainant could

use compensatory time on Thursdays in order to leave early on Fridays and

instead required him to take annual leave, it disadvantaged complainant

with respect to a term, condition or privilege of employment in violation

of 5 U.S.C. � 5550a and 29 C.F.R. � 1605.2(c)(2)(ii). Flexible scheduling

through the use of compensatory time would have disadvantaged complainant

less than forcing him to use his annual leave. Further, it seems unlikely

that allowing complainant to continue to use the compensatory time

alternative would have caused an undue hardship on the agency. Moreover,

the agency failed to show that continuing to allow complainant to make

use of the flexible scheduling arrangement would have caused it undue

hardship. Accordingly, we find that the agency improperly determined

that it had not failed to accommodate complainant's religious practice.

CONCLUSION

Based on a review of the record and for the reasons cited above, it is

the decision of the Commission to AFFIRM the agency's final decision

regarding Issues 1 and 2 and find that complainant has not established

that the agency discriminated against him as alleged. With respect to

Issue 3, it is the decision of the Commission to REVERSE the agency's

final decision and find that, beginning in January 1995, it failed to

accommodate complainant's religious practice.

ORDER (E1092)

The agency is ORDERED to take the following remedial action:

1) The agency shall restore complainant's annual leave time, which he

was forced to use when the agency stopped accommodating his religious

practices beginning in January 1995.The agency shall determine the

appropriate amount of annual leave benefits due complainant, pursuant to

29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the

date this decision becomes final. The complainant shall cooperate in

the agency's efforts to compute the amount of benefits due, and shall

provide all relevant information requested by the agency. If there is a

dispute regarding the exact amount of leave to restore, the agency shall

restore to complainant the undisputed amount within sixty (60) calendar

days of the date the agency determines the amount it believes to be due.

The complainant may petition for enforcement or clarification of the

amount in dispute. The petition for clarification or enforcement must

be filed with the Compliance Officer, at the address referenced in the

statement entitled "Implementation of the Commission's Decision."

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of benefits due complainant, including evidence

that the corrective action has been implemented.

2) We note that complainant is no longer employed in the Classification

and Pay Administration Division. Nevertheless, the agency shall continue

to take reasonable steps to ensure that failure to accommodate religious

practice does not recur.

3) The agency shall provide training to the individuals responsible

for the failure to accommodate (specifically, the Director of the

Office of Civilian Personnel and the Chief of the Classification and Pay

Administration Division) as to the current state of the law on employment

discrimination, particularly the "Guidelines on Discrimination Because

of Religion" contained at EEOC Regulation 29 C.F.R. � 1605.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Administrative Support Center in Fort

Belvoir, Virginia copies of the attached notice. Copies of the notice,

after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final, and shall remain posted for sixty

(60) consecutive days, in conspicuous places, including all places

where notices to employees are customarily posted. The agency shall

take reasonable steps to insure that said notices are not altered,

defaced, or covered by any other materials. The original signed notice

is to be submitted to the Compliance Officer at the address cited in

the paragraph entitled "Implementation of the Commission's Decision,"

within (10) calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action AFTER

ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

May 1, 2000

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington, D.C. 20507

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated _____________________

which found that a violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. �2000e et seq. has occurred at this facility.

Federal law requires that there be no discrimination against any

employee or applicant for employment because of the person's RACE,

COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL

DISABILITY with respect to hiring, firing, promotion, compensation,

or other terms, conditions or privileges of employment.

The Defense Logistics Agency, Administrative Support Center, Fort

Belvoir, Virginia (hereinafter "DLA Administrative Support Center")

supports and will comply with such Federal law and will not take action

against individuals because they have exercised their rights under law.

The DLA Administrative Support Center was found to have discriminated

against the complainant on the basis of religion when it failed

to make a good faith effort to accommodate his religious beliefs or

show that such accommodation would constitute an undue hardship on its

operations. The DLA Administrative Support Center was ordered to restore

complainant's annual leave time, which he was forced to use when the

agency stopped accommodating his religious practices; to take reasonable

steps to ensure that failure to accommodate religious practice does not

recur; and to provide training to the responsible officials. The DLA

Administrative Support Center will ensure that officials responsible

for personnel decisions and terms and conditions of employment will

abide by the requirements of all Federal equal employment opportunity

laws and will not retaliate against employees who file EEO complaints.

The DLA Administrative Support Center will not in any manner restrain,

interfere, coerce, or retaliate against any individual who exercises his

or her right to oppose practices made unlawful by, or who participates

in proceedings pursuant to, Federal equal employment opportunity law.

Date Posted: _____________________

Posting Expires:

29 C.F.R. Part 1614

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.

2While there is evidence in the record that complainant suffered

from medical problems, complainant never requested accommodation of a

disability. The record also shows that complainant never alleged that

he had been discriminated against based on disability. Accordingly,

this decision will only address the allegations raised in complainant's

complaint.

3Complainant alleged only sex discrimination with respect to this

allegation.

4Complainant alleged only discrimination based on religion with respect

to this allegation.