On appeal from the New Jersey Division on Civil Rights, EN11WB-51812.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Sabatino.
Claimant, Kit Lee, a fifty-six year old Chinese woman formerly employed as a Production Officer at Huntleigh Healthcare's (Healthcare) Eatontown plant, filed a verified complaint with the New Jersey Division on Civil Rights (Division), alleging that Healthcare unlawfully discriminated against her on the basis of her age and national origin in violation of the Law against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The Division's investigator compiled information from interviews with claimant, her supervisors at Healthcare, and several other similarly situated employees, all of whom confirmed Healthcare's policy against borrowing vacation time that has not accrued. The investigator found:
In conclusion, [Healthcare] articulated a legitimate, non discriminatory, business related reason for its decision to discharge Complainant; that is Complainant violated [Healthcare's] vacation leave policy when she failed to return to work following her approved vacation leave. [Healthcare] supported its position with documented evidence, and the investigation further revealed those younger, non Chinese employees were discharged for the same reasons as Complainant. Complainant was unable to show that [Heathcare's] reason for her discharge was untrue or a pretext to discriminate against her for any unlawful reason, including national origin and age.
Based on the investigation, it is recommended that this be closed, NO PROBABLE CAUSE.
On the basis of the investigation, the Director of the Division found that there was no probable cause to credit the allegations in claimant's complaint and ordered the file closed. We now affirm the Director's order.
Claimant began her employment with Healthcare on September 2, 2003. When she received notice that she was accepted for employment, Healthcare provided her with a copy of the employee handbook, which included guidelines for vacation time and potential disciplinary action for violations of company policy with regard to vacation time.
In January 2005, claimant orally requested ten days paid vacation, which she claimed was orally approved by her production manager, Glen Chambers, although she had only accrued seven days at the time of her request.*fn1 Thereafter, in February 2005, an e-mail reiterating the vacation time policy was forwarded by Human Resources to the entire company, indicating that if time has not accrued, a vacation will not be approved and failure to "work will result in disciplinary action, up to and including termination."*fn2 In March 2005, based upon the oral approval she claimed she received from her supervisor in January, claimant booked a ten-day Alaskan cruise scheduled for the last ten days of June 2005. However, claimant did not submit her written request for vacation time until June 9, 2005, just 11 days prior to her scheduled departure date for the cruise. The request consisted of two forms: the first, for seven days from June 20 through June 28, 2005, and the second for an advance of three days, June 29, June 30, and July 1, 2005. The first request was approved, but the second request was denied by Chambers. Chambers told claimant that if she did not report to work on June 29, 2005, she would be considered to have voluntarily resigned from her position.
On June 17, 2005, the last working day prior to her vacation, claimant spoke with Chris Belle, Director of Manufacturing, and request the three additional days. Belle advised claimant that she could not have the time off, and that if she did not return to work on June 29, it would be assumed that she had voluntarily resigned her employment.
Claimant took her vacation from June 20 through July 1, 2005. When she returned home, she received a letter dated July 1, 2005, terminating her employment effective June 27, 2005.
In addition to her complaint with the Division, claimant filed a complaint with the Wage and Hour Compliance Board,*fn3 as well as a claim for Unemployment.*fn4 The Division's investigator conducted a number of interviews, including one with claimant, as well as a thirty-six-year-old Caucasian man and a forty-two-year-old Filipino man who were fired for their first time failing to comply with Healthcare's vacation policy. In her interview, the claimant conceded that she believed she was fired because she requested a bonus and an increment, rather than because of her natural origin and age.
The investigator also interviewed a fifty-three-year-old Chinese man and his forty-nine-year-old wife who related that they both were denied non-accrued vacation time when requested. Similarly, three other employees, a forty-one-year-old Puerto Rican man, another Caucasian man, and a forty-five-year-old Cuban man indicated that their requests to ...