01973472
03-03-1999
Jesse L. Diggs, Jr., Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, (National Institute of Health), Agency.
Jesse L. Diggs, Jr., ) Appeal No. 01973472
Appellant, ) Agency No. NIH 714-92
v. ) Hearing No. 120-96-5102X
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
(National Institute of Health), )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning his 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 Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
See EEOC Order No. 960.001. In his complaint, appellant alleged that he
was discriminated against based on his sex, race (Black) and physical
disability (sinus condition and allergies) when he was: (1) charged 15
hours of Absent Without Official Leave (�AWOL�) in 1991 and 1992; (2)
not allowed to change his Tour Of Duty (�TOD�) in November and December
1992; and (3) terminated from his position as a Health Technician, GS-6,
on March 24, 1992, during his probationary period.
Appellant timely sought EEO counseling and filed his instant EEO
complaint, which was accepted and investigated by the agency. Thereafter,
appellant timely requested a hearing before an EEOC Administrative Judge
("AJ"). After a hearing, the AJ issued a recommended decision ("RD")
finding no discrimination. The agency adopted the RD in its FAD.
In the RD, the AJ found as follows: Appellant was hired as a Career
Conditional Appointment employee and was required to serve a probationary
period of one year. Under the applicable office's policy, an employee
who was more than five minutes late was charged for one hour of leave;
the first few times an employee called in to report that he or she
would be late, the employee was allowed to use annual leave but, if the
employee was consistently late, he or she was charged AWOL regardless of
whether a call was made. If the employee did not call in, the employee
was charged AWOL. The AJ found that appellant was consistently late and
that, the first few times this occurred, he was charged annual leave
and was thereafter charged AWOL. Despite being counseled in November
1991, appellant continued to be late and accrued seven hours of AWOL.
Appellant blamed his tardiness on the difficulty of finding parking.
Although appellant argued that two other employees were permitted to
change their starting time when they were late, and were not charged
annual leave or AWOL, the AJ found that appellant's supervisor credibly
denied that the two employees were permitted to do so. Further, the AJ
found that the supervisor credibly denied that appellant ever requested a
change in his TOD hours. The AJ found that appellant failed to produce
evidence that he had requested a change in his TOD hours or evidence
supporting his claim that other employees were treated more favorably,
noting that the agency offered evidence establishing that other employees
outside his protected classes were also charged AWOL.
On several occasions, appellant was observed sleeping while on duty.
The AJ found that appellant's supervisor credibly denied the assertion
that other employees also slept while on duty. Further, a productivity
audit conducted in March 1992, found that appellant was performing
significantly less work than his coworkers. Thereafter, appellant was
notified that he would be terminated effective March 24, 1992.
Appellant contended that his sinus condition and allergies, as well as
open heart surgery he underwent in 1965, prevented him from engaging in
competitive activities or from excessive running and walking, and thus,
that he was an individual with a disability as defined by the Commission's
Regulations. The AJ found that appellant failed to produce any medical
documentation substantiating his alleged impairments and that, in any
event, his supervisor credibly denied any knowledge of these impairments.
The AJ was not persuaded that knowledge of a disability could be imputed
to appellant's supervisor simply because she was aware that appellant
requested sick leave on a few occasions for medical appointments.
Accordingly, the AJ found that appellant could not establish a prima
facie case of discrimination based on disability.
The AJ further found that appellant could not establish a prima
facie case of sex or race discrimination with respect to any of his
allegations because he failed to establish that any employee outside
his protected classes who engaged in similar behavior (tardiness or
low productivity) was treated more favorably. Assuming that appellant
could establish a prima facie case of sex or race discrimination, the AJ
found that he failed to establish that the legitimate, nondiscriminatory
reasons articulated by the agency for its actions were a pretext for
discrimination.
The agency adopted the RD as its FAD. On appeal, appellant primarily
repeats the arguments he initially presented to the AJ, to wit that: his
supervisor perjured herself when she denied that he was on paid protocol
on one the days he was charged AWOL; he had notified his supervisors
about his cardiac condition; and the agency should have made unspecified
accommodations for his physical disabilities.
However, after a thorough review of the record, the Commission finds
that the RD adequately set forth the relevant facts and analyzed the
appropriate regulations, policies and laws. The Commission notes that
it generally will not disturb the credibility determination of an AJ,
where, as here, such determinations are based on the AJ's observation
of the witnesses. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990). Accordingly, the Commission
discerns no basis to disturb the AJ's finding that appellant failed to
establish discrimination. Therefore, it is the decision of the Commission
to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the 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:
March 3, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations