Cleo G.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Jan 28, 2020

2019001832 (E.E.O.C. Jan. 28, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cleo G.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2019001832 Hearing No. 550-2018-00101X Agency No. FS-2017-00477 DECISION On October 11, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 27, 2018, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-0301-09 Program Specialist/Assistant Work Programs Officer at the Agency’s Columbia Basin Job Corps facility in Moses Lake, Washington. Moses Lake is in Grant County, Washington. Job Corps is a residential vocational training program for people ages 16-24. Job Corps participants are referred to as “students.” 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019001832 2 In January 2017, the Agency notified the Grant County Health District (GCHD) that two students at Columbia Basin Job Corps had mumps. On January 26, 2017, the Columbia Basin Health and Wellness Manager (HW1) sent an email to all staff, informing them that GCHD had requested employees’ immunization records and providing a list of nearby pharmacies that carried the measles, mumps, and rubella (MMR) vaccine. On January 27, 2017, the Columbia Basin Administrative Officer (AO1) sent an email to all staff, forwarding a GCHD letter that had been provided to students and parents and asking for immunization records. Complainant stated that the tone of emails from Agency management asking for proof of immunity was harassing. On February 1, 2017, the Columbia Basin Center Director (CD1) sent all staff an email, which stated that GCHD would exclude staff who were not immune to mumps from the workplace for 25 days. On February 7, 2017, the Grant County Health Officer (GCHD1) provided Complainant with a letter that stated that he was excluded from the workplace for 25 days, through February 29, 2017, because he had been exposed to contagious mumps, unless he could provide proof of immunity. GCHD1 stated that noncompliance with the directive would constitute a violation of state law and that the GCHD could petition the Superior Court of Grant County for enforcement. The letter also stated that Complainant could appeal to the GCHD within 10 days. The Agency informed employees who had been excluded by GCHD that they could use sick leave, annual leave, or leave without pay (LWOP) during this period. On February 10, 2017, Complainant sent an email to management, requesting administrative leave for all employees excluded from the workplace. The Assistant Director (AD1) responded to Complainant’s email, stating that GCHD, not the Agency, was excluding affected employees from the workplace. According to AD1, because the Agency was not ordering employees to stay away from the workplace, the Agency could not authorize administrative leave. The Works Program Officer (WP1) stated that Complainant was authorized for three days of situational telework to work on a project on February 9, 10, and 13. On February 13, 2017, the GCHD notified Complainant that he could return to work because the results of his blood titer test showed that he was immune to mumps. Complainant took one day of sick leave on February 14, 2017, and he returned to work the next day. Complainant’s wife (C1), who also worked at Columbia Basin Job Corps, and another employee (C2; religion unknown) used sick leave while they were excluded by GCHD. C1 stated that another Social Services Assistant (C3) resigned during this time because she was pregnant. On February 14, 2017, Complainant emailed a GCHD Nurse (GCHD2) and attached a document entitled “Declaration of Religious Exemption.” In the document, C1 and Complainant stated that they should be exempted from any immunizations and other shots due to their religious beliefs. According to the document, C1 and Complainant believed that the injection of any foreign substance into their bodies was contrary to their conscientiously held religious beliefs. Complainant stated that he is Christian, of no particular denomination. On February 15, 2017, Complainant sent CD1 an email with the Declaration of Religious Exemption attached. 2019001832 3 On March 20, 2017, Complainant contacted an EEO Counselor. On July 10, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of religion (Christian) when: 1. On February 7, 2017, management enforced a GCHD order to exclude him from the workplace for 25 days for failure to receive the MMR vaccine or provide verification that she had received the MMR vaccine; 2. Management failed to authorize administrative leave while he was excluded from the workplace; 3. On February 15, 2017, management denied his request for religious accommodation; and 4. He was subjected to a hostile work environment, including emails from management discussing the mumps outbreak and stating that he would be sent home for 25 days if he was not immunized. Complainant also alleged in his EEO complaint that, between January and March 2017, the Agency requested his medical history in violation of GINA. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 20, 2018, motion for a decision without a hearing and issued a decision without a hearing on August 16, 2018. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. Complainant makes no contentions on appeal. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. 2019001832 4 See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. In opposing summary judgment, Complainant reiterated that his sincerely held religious beliefs would not allow him to be vaccinated and also challenged the efficacy of the MMR vaccine in immunizing an individual from the mumps. However, we find that these are not genuine issues of material fact because the Agency never required Complainant to be vaccinated or excluded him from the workplace. Discrimination Based on Genetic Information Complainant claimed discrimination based on genetic information in violation of GINA, which prohibits employers from discriminating against any employee because of genetic information with respect to the employee. 29 C.F.R. § 1635.1. Genetic information means information about: (i) an individual's genetic tests; (ii) the genetic tests of that individual's family members; and (iii) the manifestation of a disorder in family members of such individual (family medical history). 29 C.F.R. § 1635.3(c). Complainant's complaint is devoid of any allegations or facts regarding genetic tests, the genetic tests of his family members, or his family medical history. As a result, the Commission finds that the AJ properly found that Complainant did not make out a prima facie case of discrimination based on genetic information. See Ward B. v. U.S. Postal Serv., EEOC Appeal No. 0120180526 (April 23, 2019). 2019001832 5 Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action by the Agency under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Complainant alleged that he was discriminated against when he was excluded from the workplace. However, we find that Complainant has not established a prima facie case with respect to this claim, because the record reflects that GCHD, not the Agency, excluded Complainant from the workplace. The letter excluding Complainant from the workplace was on GCHD letterhead and signed by GCHD1, and the notice stated that the exclusion was appealable to the GCHD. We therefore find that Complainant has not established that he was subjected to adverse treatment by the Agency. Complainant alleged that he was subjected to discrimination when he was not provided with administrative leave. The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). The Agency’s legitimate, nondiscriminatory reason for not providing Complainant with administrative leave was that administrative leave could not be issued under the Agency’s leave policy because the Agency had not excluded Complainant from the workplace. As evidence of pretext, Complainant asserts that the Agency was involved in excluding him from the workplace, noting that Agency employees requested his vaccination records and were present when GCHD personnel told him that he was excluded from the workplace. However, the preponderance of the evidence in the record establishes that it was GCHD, not the Agency, who excluded Complainant from the workplace, and Complainant has not otherwise established that the Agency’s legitimate, nondiscriminatory reason was pretextual. Religious Accommodation Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. § 2000e(j); 29 C.F.R. § 1605.2(b)(1). 2019001832 6 The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires a complainant to demonstrate that: (1) he or she has a bona fide religious belief, the practice of which conflicted with their employment; (2) he or she 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); Turpen v. Mo.-Kan.-Tex. R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984). Here, we find that Complainant has not established a prima facie case of discrimination based on religious accommodation. Assuming for the purposes of this decision that Complainant’s bona fide religious beliefs prevented him from receiving the MMR vaccine, this belief did not conflict with her employment because the Agency did not require him to be vaccinated. Because there was no conflict between his employment and his religious belief, the Agency was not required to accommodate him absent undue hardship. Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). There is no evident connection between the alleged harassment and Complainant’s membership in any protected class. Agency management sent the allegedly harassing emails to all staff. Moreover, upon review, we find that the alleged harassment is insufficiently severe or pervasive to constitute a hostile work environment. The tone of the emails in question was professional, and the content merely provided updates about the mumps outbreak or related information from the GCHD. Accordingly, Complainant has not established that he was subjected to a hostile work environment. CONCLUSION We AFFIRM the Agency’s final order fully implementing the AJ’s summary judgment decision finding no discrimination. 2019001832 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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. 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. 2019001832 8 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations January 28, 2020 Date