Harold M.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.Download PDFEqual Employment Opportunity CommissionJun 19, 20190120180643 (E.E.O.C. Jun. 19, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harold M.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency. Appeal No. 0120180643 Agency No. DOS009517 DECISION On December 11, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 9, 2017 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Foreign Service Officer, FS-02 assigned as a student in the Agency’s School of Language Studies, German section in Arlington, Virginia. On March 27, 2017, Complainant filed an EEO complaint alleging that he was discriminated against based on his religion (Jewish) when: 1. The Agency failed to provide him with a reasonable religious accommodation so that he could attend a voluntary immersion trip in Germany; and 2. The Agency subjected him to a hostile work environment by questioning his religious traditions, singling him out and generally humiliating him based on his religious beliefs. 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. 0120180643 2 Following an EEO investigation, the Agency provided Complainant with a report thereof, and notified him of his right to request a hearing before an Equal Employment Opportunity Administrative Judge. Complainant requested a FAD, and the Agency found no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The immersion trip to Germany was scheduled for April 4, 2017 – April 14, 2017. The Passover holiday ran from April 10, 2017 – April 18, 2017, and as observed by Complainant, consisted of two nights of a ritual Seder meal and prayer service celebrated in the home or with friends in the community, and following Passover dietary laws for the entire holiday. As a reasonable accommodation, Complainant requested that the trip be rescheduled. The traditional framework for establishing a prima facie case of discrimination based on failure to provide a 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). The Commission characterizes religious practices in broad terms. However, the evidence shows that Complainant’s bona fide religious beliefs did not conflict with his employment. The immersion trip identified by Complainant was a voluntary program, and was self-funded. All parties involved, including Complainant, conceded that the trip was voluntary, not a requirement of his employment. As such, there is no showing that Complainant’s objections to the scheduling of the trip conflicted with an employment requirement. Furthermore, even if Complainant had proven prima facie discrimination, he failed to prove he was denied a reasonable accommodation. Once a complainant establishes a prima facie case, the agency must show that it made a good faith effort to reasonably accommodate complainant's religious beliefs and, if such proof fails, the agency must show that the alternative means of accommodation proffered by complainant could not be granted without imposing an undue hardship on the agency's operations. See Tiano v. Dillard Dept. Stores, Inc.,139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corporation, 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989). The record shows that the Agency sought ways of accommodating Complainant without displacing other employees who also sought to go on the immersion trip. The Agency offered Complainant the opportunity to attend an alternative on-campus one-week language immersion program. The Language and Culture Instructor stated it was her understanding that, in the end, Complainant attended the Germany trip, but left early one or two days. We find this was an effective alternate accommodation. 0120180643 3 Complainant also alleged that he was subjected to a hostile work environment and harassment. To establish a prima facie case of hostile environment harassment, Complainant must show the existence of four elements: (1) he is a member of 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 the statutorily protected class; and (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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. Complainant was a member of a statutorily protected class based on his religion, thereby satisfying the first requirement. Complainant alleged that the Agency offering him alternatives to rescheduling the immersion trip in Germany such as making arrangements for him to observe Passover during the trip or an alternative immersion program was harassing, but this is not corroborated by the facts. The record shows that all communications between Complainant and Agency were either cordial in nature or initiated by Complainant himself. For example, Complainant has cited a meeting between himself and the Agency as being unwanted verbal conduct that questioned his religious beliefs. However, all evidence provided indicates that the meeting centered around discussing, and ultimately offering, attempts at reasonable accommodation for Complainant’s conflict. Complainant also cited a meeting with his professors and classmates that ended in a vote to determine the most desired dates for the immersion trip. While the vote did not go Complainant’s way, this does not amount to harassment. Accordingly, the FAD is AFFIRMED. 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. 0120180643 4 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. 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 June 19, 2019 Date Copy with citationCopy as parenthetical citation