Henry S.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.

Equal Employment Opportunity Commission

Jun 28, 2018

0120160817 (E.E.O.C. Jun. 28, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Henry S.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.

Appeal No. 0120160817

Agency No. HHS-CDC-0050-2015

DECISION

On December 18, 2015, 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
December 1, 2015, 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. Our review is de novo. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Analyst, GS-0343-13, at the Agency’s Centers for Disease Control and Prevention in
Atlanta, Georgia.

On December 4, 2014, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the basis of his religion (Jewish) when:

1. On September 25, 2014, Complainant’s religion was not accommodated when
Complainant was required to provide work information during Rosh Hashanah; and

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.
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2. On October 17, 2014, Complainant was issued a Letter of Reprimand.

Complainant claimed that these actions also constituted discriminatory harassment.

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 EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. The record reflects that Complainant had filed a grievance after his first-level
Supervisor changed the administrative requirements in his 2014 performance management
appraisal program several months into the rating period. Complainant believed that this change
violated the collective bargaining agreement. The Supervisor assigned Complainant the task of
outlining the validation process, which Complainant claimed was related to one of his pending
grievances. On September 16, 2014, the Supervisor requested information concerning the
validation assignment and Complainant stated that he responded that in order to avoid a conflict
of interest, the assignment should not be discussed until after conclusion of his grievance.

On September 23, 2014, the Chief sent Complainant an email wherein he instructed Complainant
to complete the assignment no later than noon on Friday, September 26, 2014. Complainant
subsequently informed the Branch Chief, his second-level supervisor (the Chief), that given that
the assignment was related to a pending grievance, he would provide the information following
the conclusion of the grievance. On September 24, 2014, the Chief informed Complainant that
although his grievance was pending, Complainant was not absolved from completing his
assignment, which was still due no later than September 26, 2014. Complainant reiterated the
same response he had provided the Chief on the day before and added that he would be on religious
leave from September 25-26, 2014, returning on the following Monday.

On September 25, 2014, the Chief notified Complainant that he had been afforded ample
opportunity to complete the assignment, and that it was to be submitted by September 26, 2014.
Complainant replied that the Chief was being highly offensive and harassing and that he was
demonstrating blatant disregard for the grievance process. Complainant stated that by requiring
the assignment to be submitted by that Friday, a Jewish holiday, when he is not in the office, it
could be considered religious discrimination. Complainant reiterated that he would be happy to
provide the requested information after the final conclusion of his related grievance. Complainant
asserted that he would need one week to provide the information after the grievance was
concluded.

The Agency noted that Complainant stated that on October 7, 2014, he emailed the Chief and
explained that the submission date would depend on whether his grievance went to arbitration, but
that he still planned on completing the assignment. On October 7, 2014, the Chief issued
Complainant a Letter of Reprimand for refusing to follow instructions and for disrespectful
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conduct toward his supervisors. Complainant appealed the Letter of Reprimand and in the
meantime completed the assignment.

The Agency determined that Complainant failed to establish a prima facie case of discrimination
based on religion. The Agency stated that Complainant was unable to show that a similarly
situated individual outside of his protected class was treated more favorably. Assuming arguendo
Complainant had set forth a prima facie case, the Agency noted that the Supervisor asserted that
he directed Complainant on September 16, 2014, to provide the information on the validation
processes, but that Complainant failed to do so. According to the Supervisor, he subsequently
elevated the matter to the Chief. The Supervisor maintained that Complainant had sufficient time
to complete the assignment prior to taking leave. The Supervisor stated that the assignment only
required two to four hours to complete and should not have interfered with Rosh Hashanah. The
Agency stated that the Supervisor denied that he and Complainant agreed that the assignment could
be delayed until Complainant’s grievance challenging the accuracy of his position description was
resolved. The Supervisor indicated he learned on September 21, 2014, from the Employee
Relations Department that the assignment did not conflict with Complainant’s grievance.
According to the Supervisor, he and the Chief met concerning the situation with Complainant and
it was decided that the next email communication should come from the Chief.

The Supervisor stated that on September 25, 2014, Complainant notified him and the Chief that he
would not complete the assignment within the required timeframe as it conflicted with his
grievance and his religious holiday. The Supervisor asserted that prior to this email, Complainant
had not mentioned that he was taking leave for religious purposes. The Supervisor maintained that
Complainant did not request a religious accommodation.

The Chief stated that he directed Complainant to complete his assignment pursuant to guidance
from Employee Relations. The Chief asserted that when he reviewed Complainant’s approved
leave, he noticed that Complainant requested annual leave rather than religious leave. According
to the Chief, after Complainant notified him on September 25, 2014, that he would wait to
complete the assignment until the conclusion of the grievance, the Chief met with officials from
Workforce Relations, Human Resources and the Acting Director, and it was decided to issue
Complainant a Letter of Reprimand based on his failure to follow instructions and his disrespectful
conduct toward his supervisors. According to the Chief, the disrespectful conduct concerned
language and tone in emails that Complainant sent him as to managerial decisions.

The Acting Director (Complainant’s third-level supervisor at the time), who like Complainant is
Jewish, stated that she informed Complainant that the enforcement of the assignment was not
related to his religion. The Acting Director maintained that there was no indication Complainant’s
religion was a factor since the first directive was issued on September 16, 2014, affording
Complainant ample opportunity to complete the assignment before Rosh Hashanah. According to
the Acting Director, the Letter of Reprimand was a last resort, but that it was warranted and proper
protocol was followed in its issuance. The new Acting Director stated that he reviewed
Complainant’s grievance and upheld the Letter of Reprimand. The new Acting Director
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determined that Complainant had been given sufficient time to complete the assignment prior to
taking his approved leave.

The Agency stated that Complainant’s primary objection was being requested to provide work that
he alleged was related to his pending grievance. The Agency maintained that Complainant did not
attempt to invoke leave for religious purposes until after the Chief sent his second email directing
Complainant to complete the work no later than noon on September 26, 2014. The Agency
asserted that Complainant had not previously offered a reason for delaying completion of the
assignment other than it would be a conflict of interest.

The Agency observed that Complainant attempted to establish pretext by arguing that he would
have needed a week to do the assignment and that the assignment was indeed related to his
grievance. The Agency rejected Complainant’s arguments and determined that he failed to
demonstrate that the reasons articulated by the Agency for its actions were not its true and real
reasons.

With regard to Complainant’s claim that he was denied religious accommodation, the Agency
stated that Complainant never requested a religious accommodation. The Agency stated that it
was not until Complainant was already on leave that he mentioned that he was observing Rosh
Hashanah. The Agency reasoned that Complainant therefore failed to establish that the submission
date was related to his religion or was assigned to interfere with the practice of his religion. The
Agency further determined that Complainant failed to establish a prima facie case of
discriminatory harassment. The Agency stated that management made several requests for
Complainant to complete an assignment and then issued a reprimand concerning his failure to
complete the work, and that this does not amount to conduct so severe or pervasive as to constitute
harassment.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Chief knew on September 24, 2014, prior to Rosh
Hashanah, that the requested assignment was due on a Jewish holiday and he refused to change
the due date to accommodate his religious beliefs and observance of Rosh Hashanah. Complainant
argues that this proves he was subjected to unwelcome harassing conduct. Complainant states that
he asked the Chief on September 25, 2014, to respect his religious rights and allow him to properly
observe the religious holiday. Complainant challenges the Agency’s assertion that his Supervisor
issued him a validation process assignment. According to Complainant, the Supervisor requested
that they have a verbal discussion of Complainant’s validation methodology on September 18,
2014, during their regular weekly meeting. Complainant stated that he responded that they should
have the discussion after the conclusion of the pending grievance that directly related to the matter
at issue. Complainant contends that his Supervisor previously acknowledged that discussing any
matters related to ongoing grievances would be a conflict of interest and they agreed to wait until
the conclusion of the pending grievance before discussing such topics. Complainant argues that
his Supervisor did not respond that he disagreed and he did not ask for the information again.
Complainant states that at the meeting on September 18, 2014, the Supervisor did not raise the
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validation process subject for discussion. Complainant asserts that he interpreted that to mean his
Supervisor was in agreement not to discuss this subject matter until after the conclusion of the
grievance.

Complainant claims that he was not assigned the validation task until the Chief issued the
assignment on September 23, 2014. Complainant states that in his September 24, 2014 response
to the Chief he mentioned his upcoming religious leave as well as the conflict of interest with his
grievance. Complainant argues that the assignment at issue would have taken at least a week to
complete. According to Complainant, the Chief only gave him three days to complete the
assignment, and that the three days given negates the Supervisor’s assertion that the assignment
should only take two to four hours. Complainant maintains that the Chief issuing him the
assignment on September 23, 2014 demonstrates that his Supervisor did not issue him the task on
September 16, 2014. Complainant denies that he engaged in disrespectful or inappropriate
conduct. According to Complainant, he did not use profanity and he was simply defending his
rights.

ANALYSIS AND FINDINGS

Claim 1 – 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). The traditional framework for establishing a prima facie case of
discrimination based on religious accommodation requires Complainant to demonstrate that: (1)
he had a bona fide religious belief, the practice of which conflicted with 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.3rd 1433, 1438 (9th Cir. 1993);
Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).

Once the prima facie case is established, the burden shifts to the Agency to demonstrate that it
cannot reasonably accommodate Complainant without incurring undue hardship, or that
Complainant has been accommodated. Title VII, 701(j); 42 U.S.C. § 2000e(j); 29 C.F.R.
§ 1605(c)(1); Protos v. Volkswagen of America, Inc., 797 F.2d 129, 133 (3rd Cir. 1986). The
Supreme Court has found that accommodations which create more than de minimis monetary or
efficiency costs cause undue hardship. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63(1977).
A showing of undue hardship cannot be merely hypothetical, but must instead include evidence of
an actual imposition of coworkers or disruption of work schedules or routines. Tooley v. Martin
Marietta, 648 F.2d 519, 521 (4th Cir. 1987).

We observe that Complainant is Jewish and he intended to take leave from work as he observed
Rosh Hashanah on September 25-26, 2014. Complainant did not specifically request leave for
religious purposes but the record indicates that Complainant informed the Chief on September 24,
2014, that he would be on religious leave from September 25-26, 2014, returning on the following
Monday. Despite being informed of Complainant’s intention to observe Rosh Hashanah, the Chief
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reiterated his directive to Complainant to provide the requested validation processes information
by noon September 26, 2014. We find that Complainant has established a prima facie case of
discrimination based on religious accommodation.

Complainant claims that he was not issued the assignment until the Chief did so on September 23,
2014. The record indicates that Complainant was aware of the validation assignment issued by his
Supervisor no later than September 16, 2014. Complainant believes that because the assignment
was not raised by his Supervisor during their September 18, 2014 meeting, that a proper
interpretation therefore is that the Supervisor agreed with him that the assignment should not be
completed until after the conclusion of his grievance. We find that the record does not offer
support for Complainant’s position. The reason it was necessary for the Chief to get involved in
this situation and direct Complainant to provide the validation processes information is that
Complainant had shown no indication that he intended to complete the assignment prior to the
conclusion of his grievance. A week had already elapsed from when Complainant was on clear
notice of the assignment to when the Chief entered the situation on September 23, 2014.
Complainant had the opportunity to work on the assignment upon receiving the Chief’s directive
but he instead chose to seek a delay in the assignment. It is clear that Complainant’s main
argument in resisting doing the assignment was his ongoing grievance. Complainant did not raise
his observance of Rosh Hashanah until after he was given the specific deadline of noon September
26, 2014. However, when the Chief issued his directive on September 23, 2014, he did not know
that Complainant planned on using leave for religious purposes starting at 2:00 p.m. September 25
and continuing through September 26. Complainant had a week to complete the assignment before
receiving the Chief’s September 23, 2014 directive and he had additional time to work afterwards
on what his Supervisor described as a two to four-hour assignment before taking leave. We
observe that the Acting Director stated that the request for the work came well before Rosh
Hashanah. The Acting Director asserted that the work assignment deadline had nothing to do with
Complainant’s religion. The Acting Director stated that the work assignment deadline related to
the Agency’s budgeting process and the requested information was needed. In light of
Complainant’s dilatory tactics in addressing the validation processes assignment, we find that the
Chief’s directives to Complainant to complete the assignment by noon September 26, 2014, cannot
be considered a denial of religious accommodation.

Claim 2 – Letter of Reprimand

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411U.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 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 prima facie inquiry may be dispensed with where 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.
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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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993);
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't
of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

We shall assume arguendo that Complainant set forth a prima facie case of discrimination based
on religion with regard to the Letter of Reprimand that he was issued by the Chief. The Agency
explained that Complainant was issued the Letter of Reprimand based on his failure to follow
instructions and his disrespectful conduct toward his supervisors. According to the Chief, the
disrespectful conduct concerned language and tone in emails that Complainant sent him as to
managerial decisions. We find that the Agency has articulated legitimate, nondiscriminatory
reasons for the Letter of Reprimand.

Complainant argues that the Agency’s reasons for the issuance of the Letter of Reprimand were
pretext in light of his belief that an agreement had been reached with his Supervisor that completion
of the assignment could wait until the conclusion of his grievance. Complainant further argues
that he did not engage in disrespectful communications that warranted a Letter of Reprimand. As
we have indicated, we discern no persuasive argument or evidence that supports Complainant’s
contention that he and his Supervisor agreed to postpone completion of the validation assignment
until after the conclusion of Complainant’s grievance. Complainant maintains that the assignment
and his grievance were related but Complainant has not demonstrated this was the case. As for
the nature of his communications with management officials, in particular the Chief, we find that
Complainant’s resistance to performing the assignment in a timely manner and the language and
tone he utilized was in effect an insubordinate reaction that conveyed insufficient respect to
officials in authority. We find that Complainant has not presented sufficient argument or evidence
to establish that the Agency’s articulated reasons for the Letter of Reprimand were pretext intended
to hide discriminatory motivation.

Harassment

Complainant claims that he was subjected to harassment by management officials. To establish
this claim, 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. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a working environment is hostile,
factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it
is physically threatening or humiliating, and if it unreasonably interferes with an employee’s work
performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Enforcement
Guidance at 6 (March 8, 1994).

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We find that the instructions given to Complainant to complete his assignment by noon on
September 26, 2014, and the ensuing Letter of Reprimand that was issued after he failed to
complete the assignment were not of sufficient severity or pervasiveness to constitute harassment.

CONCLUSION

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 (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).
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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 28, 2018
Date