Ian S.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Apr 27, 2018

0120160622 (E.E.O.C. Apr. 27, 2018)

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

Ian S.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.

Appeal No. 0120160622

Agency No. IRS-15-0987-F

DECISION

On November 25, 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
October 26, 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. 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 Senior Individual
Taxpayer Advisory Specialist, Wage and Investment Division, Taxpayer Assistance Center,
located in San Antonio, Texas. On February 2, 2015, Complainant filed an EEO complaint
alleging that the Agency discriminated against him based on religion (Jehovah’s Witness) when in
December 2014, his manager (S1) denied his request for an exception to the Agency’s “open
container” policy, not allowing Complainant to eat at his desk and avoid exposure to holiday
decorations in the break room which offended 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.
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After 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 decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

PROCEDURAL DISMISSALS

On April 10, 2014, the Agency’s Office of Civil Rights and Diversity dismissed the following
claims, based on Complainant’s race (Black), religion (Jehovah’s Witness), disability
(unspecified), and retaliation (prior protected activity) when: (a) in August 2014, the Territory
Manager issued Complainant a letter of reprimand following a Treasury Inspector General for Tax
Administration investigation concerning an April 1, 2014 incident; (b) in May 2014, management
officials made a false statement to the Occupational Safety and Health Administration and denied
Complainant medical treatment related to his February 3, 2014 workers’ compensation claim; and
(c) in July 2013, Agency counsel and a Labor Relations Specialist accessed Complainant’s medical
information without authorization.

We agree with the Agency that Claims B and C were not raised with an EEO Counselor within 45
days of the alleged discriminatory events. See 29 C.F.R. §§1614.105(a)(1) and 1614.107(a)(2).
The record shows that Complainant initiated EEO contact on December 22, 2014. Therefore, the
incidents described in Claims B and C each occurred more than 45 days prior to EEO contact. The
Agency also noted that Claim B was dismissed because it is a collateral attack on another process
and fails to state a claim, pursuant to 29 CFR §1614.107(a)(1). For the reasons cited by the
Agency, we affirm the dismissal of Claims B and C.

The Agency originally dismissed Claim A for untimely EEO contact but reversed its dismissal in
its final decision finding that the dismissal of Claim A was in error because Complainant raised it
in his appeal to the Merit Systems Protection Board (MSPB), which he filed on August 6, 2014,
the same date he received the letter at issue. The Agency notes that Complainant’s MSPB appeal
raised matters that alleged the Agency’s action was effected, in whole or in part, because of
discrimination prohibited by EEO law. The record shows that the MSPB dismissed Complainant’s
appeal for lack of jurisdiction on November 21, 2014, and Claim A reverted to the Agency for
further action as a non-mixed matter. Pursuant to 29 C.F.R. § 1614.302(b), the date on which a
person filed such a mixed case appeal with the MSPB shall be deemed the date of initial contact
with the EEO counselor. Therefore, the Agency found that Claim A should have been accepted.
Accordingly, the Agency decision advises Complainant that it is docketing Claim A as a new
complaint of discrimination and referring the issue to an EEO investigator for investigation. The
Agency further advises Complainant in its final decision that after completion of an EEO
investigation, it will provide Complainant a copy of the new report of investigation on this issue
and will provide Complainant an opportunity to elect a hearing before an EEOC AJ or an
immediate final agency decision. Since this matter is no longer in dispute, we affirm the Agency’s
reversal of its dismissal of Claim A.

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FACTUAL BACKGROUND

The record shows that on December 16, 2014, Complainant sent an email to S1 explaining he did
not celebrate Christmas and requested that he be permitted to eat at his desk instead of the
breakroom during his break because the break room contained Christmas and holiday decorations,
which made him feel uncomfortable. Complainant indicated that his usual snack was a breakfast
sandwich. Not hearing back from S1, the next day Complainant sent a second email to S1 asking
for a response. Complainant also wrote that he preferred that his co-workers not question him
regarding why he was eating at his desk.

On December 22, 2014, Complainant learned that his request had not been granted. Specifically,
Complainant asserts that S1 denied his request based on “expense,” which apparently was a
reference to the closed container food policy to protect computer equipment in the work area,2 and
suggested that Complainant take his break on the fourth floor of an adjacent building, which did
not have holiday decorations. Complainant asserts that such an alternative was not reasonable as
it would take him up to 15 minutes to get to the fourth-floor break room. Complainant also argues
that eating a breakfast sandwich was far less dangerous to the equipment than use of liquids in
covered containers at one’s desk. The undisputed record shows that despite S1’s denial, the food
policy was not enforced because Complainant continued to eat at his desk without any
consequence.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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”).

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. 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

2 The record shows that employees were not permitted to eat or drink at their desks due to the
risk of damaging equipment. However, it appears that employees were permitted to have water
bottles and other drinks with covers.
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him. Baum v. Social Security Administration, EEOC Appeal No. 01A05985 (March 21, 2002);
Bullock III v. U.S. Postal Service, EEOC DOC 07A40101 (Aug. 3, 2005).
A reasonable religious accommodation is any adjustment to the work environment that will allow
the employee to comply with his or her religious beliefs. However, it is subject to the limit of
more than de minimis cost or burden. The need for religious accommodation most frequently
arises where an individual’s religious beliefs, observances, or practices conflict with a specific task
or requirement of the job or the application process. The employer’s duty to accommodate will
usually entail making a special exception from, or adjustment to, the specific requirement so that
the employee or applicant will be able to practice his or her religion. Accommodation requests
often relate to work schedules, dress and grooming, or religious expression or practice while at
work. EEOC Compliance Manual Section 12, “Religious Discrimination” No. 915.003, (July 22,
2008) (Religious Discrimination Compliance Manual).

We assume for the purposes of this decision that Complainant has presented sufficient evidence to
establish the elements of a prima facie case as set forth above. The record also shows that S1 made
a good faith effort to reasonably accommodate Complainant’s religious beliefs. S1 advised
Complainant that he could take his meal break in the fourth-floor break room. Although the break
room was on a different floor, in a distinct area separate from the space in which Complainant
apparently spent most of his time, the break room was in an immediately adjoining building which
was accessible by elevators.3 Significantly, the record is devoid of evidence showing that
Complainant ever informed S1 or anyone else in management that getting to and from the fourth-
floor break room would take too much time to be considered a reasonable accommodation.4 The
record shows that Complainant also informed S1 that he was uncomfortable with his co-workers
questioning why he ate at his desk. However, the record is devoid of evidence that any co-worker
in fact questioned Complainant on this topic.

In addition to finding that the Agency provided a reasonable accommodation to Complainant, we
note that the record indicates that the holiday decorations that offended Complainant were secular
decorations that are permitted throughout the federal government and work environment. The
record shows that the holiday decorations in the breakroom consisted of a tablecloth and two
poinsettias. There was a Christmas tree in the office. However, it was not visible from the break
room. According to the U.S. Supreme Court, such holiday decorations amount to secular symbols
rather than an expression of a religion and displaying them in the federal workplace does not
violate the establishment clause of the First Amendment. see County of Allegheny v. ACLU, 492
U.S. 573 (1989). We also note that Title VII does not require a public or private employer to

3 Where there is more than one reasonable accommodation that would not pose an undue
hardship, the employer is not obliged to provide the accommodation preferred by the employee.
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 at 68-69 (1986). The employer is not obligated
to provide employee's preferred accommodation even if accommodation is not convenient to
employee. Wilshin v. Allstate Ins. Co., 212 F. Supp. 2d 1360 (M.D. Ga 2002).
4 It is also unknown whether S1 would have agreed to add additional time to Complainant’s break
to account for the added distance to the fourth-floor break room.
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remove holiday decorations or add holiday decorations associated with other religions.5 In
addition, to the extent that Complainant raises a claim of hostile work environment, we find the
record devoid of evidence to support such a claim.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision.

ORDER

To the extent that the Agency has not already done so, within ninety (90) days of receipt of this
order, the Agency shall process Claim A in accordance with 29 C.F.R. § 1614.108. The Agency
shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the
appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued,
unless the matter is otherwise resolved prior to that time. If the Complainant requests a final
decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt
of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this
remanded case to comply with the time frames contained in this Order. The Office of Federal
Operations will issue sanctions against agencies when it determines that agencies are not making
reasonable efforts to comply with a Commission order to investigate a complaint.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective

5 See Religious Discrimination Compliance Manual, Ex. 52 (a wreath and Christmas tree are
permissible holiday decorations); and Religious Discrimination Compliance Manual, n. 112 citing
citing County of Allegheny v. ACLU, 492 U.S. 573 (1989) (the U.S. Supreme Court has held that
wreaths and Christmas trees are “secular” symbols, akin to items such as lights, Santa Claus, and
reindeer, and thus that government display of these items does not violate the establishment clause
of the First Amendment); see also Guidelines on Religious Exercise and Religious Expression in
the Federal Workplace, at Section D (example b) August 14, 1997 (an employer may put a wreath
over the entrance of the office’s main reception area).

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action. The report shall be in the digital format required by the Commission, and submitted via the
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must
contain supporting documentation, and the Agency must send a copy of all submissions to the
Complainant. If the Agency does not comply with the Commission’s order, the Complainant may
petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant
also has the right to file a civil action to enforce compliance with the Commission’s order prior to
or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408,
and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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.
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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 (T0610)
This decision affirms the Agency’s final decision, but it also requires the Agency to continue its
administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has
affirmed and that portion of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or your appeal with the
Commission, until the Agency issues its final decision on your complaint. 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

April 27, 2018
Date