0120100405
06-18-2010
Frederick Bangura, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (National Institutes of Health) Agency.
Frederick Bangura,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(National Institutes of Health)
Agency.
Appeal No. 0120100405
Agency No. HHSNIH01412009
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's
appeal from the Agency's September 29, 2009 final decision 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. For the following
reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
On February 18, 2009, Complainant contacted an EEO Counselor and filed a
formal complaint on March 11, 2009 alleging that the Agency discriminated
against him on the bases of race (Black), national origin (Sierra Leone,
West Africa), and religion (Baptist) when:
1. Since January 2009, he has been subjected to a hostile work environment
and harassment by the denial of his request for change in work schedule;
and
2. Since August 2008, he has been forced to work every weekend and has
not been fully compensated for the hours worked.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
an immediate final agency decision. Therein, the Agency determined that
no discrimination occurred. This appeal followed.
At the time of the events at issue, Complainant had been employed by
the Agency since 2005 as a Patient Care Technician in the Neuro/Sleep
Lab Inpatient Unit, Clinical Research Center (CRC). In the instant
matter, Complainant contends that since January 2009, he has made several
requests, which have been denied by his supervisor, to work alternating
weekends rather than every weekend in order to go to school and to attend
church with his family. Complainant alleges that his work schedule was
temporarily changed after a third party intervened during a performance
review meeting between Complainant and his supervisor, and suggested
that Complainant be permitted to work every other weekend. However,
Complainant stated that later his schedule was returned back to working
every weekend and that his supervisor regularly changed Complainant's
schedule without Complainant's knowledge. Complainant indicates
that when he questioned his supervisor regarding the change, he was
told that he could "resign" or "quit" if Complainant did not like it.
Complainant also claims that he was forced to work every weekend without
proper compensation.
ANALYSIS AND FINDINGS
In the instant case, Complainant raises claims of disparate treatment,
hostile work environment harassment and the alleged denial of a
religious accommodation. 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). He must generally establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). 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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, Complainant must
prove, by a preponderance of the evidence, that the Agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
In determining whether a harassment complaint states a claim in cases
where a Complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a Complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a Complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete Agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the Complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a Complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
request for reconsideration denied EEOC Request No. 05970995 (May 20,
1999). Also, the trier of fact must consider all of the circumstances,
including the following: the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with
an employee's work performance. Harris, 510 U.S. at 23.
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). The traditional framework for establishing a prima
facie case of discrimination based on religious accommodation requires
Complainant to demonstrate that: (1) he has a bona fide religious belief,
the practice of which conflicted with his employment, (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); Turpen v. Missouri-Kansas-Texas
R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).
In its final decision, the Agency determined that Complainant failed to
establish a prima facie case of discrimination as alleged. Specifically,
the Agency found that Complainant failed to provide evidence that
individuals outside of his protected classes were treated more favorably
in similar circumstances. The Agency went on to state that, assuming
arguendo, Complainant had established a prima facie case of employment
discrimination, the Agency articulated legitimate, non-discriminatory
reasons for its conduct. Namely, the Agency determined that Complainant
and his supervisor met in October 2008 in order to clarify Complainant's
work schedule for the remainder of 2008, resulting in Complainant working
primarily day shifts with alternating weekends. Complainant's supervisor
also indicates that the needs of the Agency tended to be on weekends
and evenings at the beginning of the week. According to the Agency,
Complainant accepted the work schedule with occasional requests for leave
on weekends which were approved. Complainant's supervisor testified that
Complainant never indicated that he needed to work alternate weekends
in order to attend church with his family.
The Agency also indicated that over time, Complainant has been offered and
accepted overtime shifts on the weekends. In addition, the Agency points
out that Complainant was hired to work rotating shifts which included
weekends and that at different points during the course of Complainant's
employment, Complainant requested to work additional weekends. Finally,
the Agency indicates that Complainant's supervisor frequently adjusted
Complainant's work schedule at Complainant's request to accommodate his
school, and family and other personal matters.
Concerning the agency's alleged denial of Complainant's religion, the
record does not indicate that Complainant has established a prima facie
case of discrimination. In reaching this conclusion, the Commission
finds that complainant has failed to demonstrate that he ever specifically
informed the agency of a bona fide religious belief which was compromised
by Complainant's employment. Rather, the record indicates and Complainant
does not dispute that he was regularly excused from working on weekends
to accommodate his personal needs.
Regarding Complainant's claim that he did not receive compensation for
work he performed on the weekends, and concerning Complainant's assertion
that his paycheck reflected reduced hours or incorrect sick leave, the
Agency indicates that Complainant was asked to provide copies of any time
card that reflected that he was his pay was not calculated properly,
so that the Agency could correct the error. The record indicates that
Complainant failed to provide the Agency with any documentation in
that regard.
Complainant also alleges that he was subjected to harassment and that the
Agency created a hostile work environment when his supervisor allegedly
made derogatory comments about Complainant's national origin, and
indirectly accused Complainant's of stealing property from the Agency.
Upon review, the Commission finds that Complainant has failed to
demonstrate that the alleged harassment as identified in this matter
affected a term, or condition of Complainant's employment or had the
purpose or effect of unreasonably interfering with the work environment
or creating an intimidating, hostile or offensive work environment.
See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 � 1604.11. Even assuming that the events cited by
Complainant occurred as he described, there is no evidence to establish
that the Agency's actions were based on any discriminatory animus
toward Complainant's protected classes. The Commission finds that in
examining all of the circumstances of Complainant's harassment claim,
including the "frequency of the conduct; its severity, whether it was
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interfered with Complainant's work performance,"
Complainant was unable to show that the Agency's alleged conduct could
be characterized as abusive, sever or pervasive. See Harris v. Forklift
Systems, Inc. 510 U.S. 17 (1993). In addition, we find that the events
alleged in Complainant's harassment claim were not severe or pervasive
to rise to the level of creating an unlawful hostile work environment.
See Cobb v. Department of Treasury, EEOC Request No. 0597077 (March 13,
1997), citing Harris v. Forklift Systems, Inc. 510 U.S. 17, 21 (1993)
(harassment is actionable if it is sufficiently severe or pervasive to
alter the conditions of the Complainant's employment).
The Commission has examined the Complainant's contentions, but finds
no persuasive evidence that he was discriminated against as alleged.
The Commission concurs with the decision of the Agency in this matter
that Complainant failed to establish a prima facie case of employment
discrimination. We further find that Complainant has failed to establish
that the alleged harassment was based on Complainant's protected classes.
Even assuming that the identified incidents occurred in the manner
as described by Complainant in the record, the Commission finds that
Complainant's assertions of discrimination are based solely on his own
subjective conclusions.
Because the Agency articulated legitimate, nondiscriminatory reasons for
its actions, Complainant is required by law to show that the reasons are
a pretext for discrimination. Having considered Complainant's assertions,
the Commission finds that Complainant has not established pretext.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the Agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (S0408)
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.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 18, 2010
__________________
Date
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0120100405
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100405