0120111007
11-18-2011
Jeanne DiLoreto, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Jeanne DiLoreto,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120111007
Agency No. HHSSAM03762010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 21, 2010, dismissing her complaint of unlawful
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 Project Officer at the Agency’s Community Grant and Programs Branch at
the Agency’s Center for Substance Abuse Prevention in Washington, D.C.
On August 26, 2010, Complainant filed a formal EEO complaint alleging that
the Agency subjected her to discrimination on the basis of religion when:
1. On May 6, 2010, the Agency hosted a “National Day of Prayer” event.
2. On June 20, 2010, Complainant had 1.5 hours of credited administrative
leave reversed from her time card. The 1.5 hours of administrative leave
was previously approved to offset the 1.5 hours which other employees
were provided away from their work responsibilities to attend the National
Day of Prayer event.
Briefly, the EEO Counselor’s report for her complaint reveals that
Complainant asserted that the Agency sponsored a National Day of Prayer
event on May 6, 2010, from 10:30 a.m. to noon, with voluntary attendance
by Agency employees. Complainant alleged that the Acting Director for
the Office of Program Services sent a mass email to employees on May
5, 2010, concerning the event, which quoted New Testament verses.
Complainant stated that she felt discriminated against because the
observance was geared towards followers of Jesus Christ and “[did]
not cover her religious beliefs.”
Complainant also alleged that employees who chose not to attend the
prayer event were expected to work. Complainant requested 1.5 hours of
administrative leave (credit time) for the time she worked while other
people attended the event, but alleges her request was not approved.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim. The instant appeal
followed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). When the complainant does not
allege he or she is aggrieved within the meaning of the regulations,
the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).
In this case, we find that Complainant has stated a claim of religious
discrimination by asserting, in essence, that the event in question
promoted one set of religious beliefs to the exclusion of her own, and
by providing the employees who attended the event with 1.5 hours where
they were excused from work, while she had to work because the event
conflicted with her religious beliefs.
In its dismissal decision, the Agency notes that the event was staged
as the result of a presidential proclamation and that Complainant was
not entitled to administrative leave, although it does not explain why.
Upon review, the Commission finds that the Agency’s reason for
dismissing the complaint addresses the merits of the claim without
a proper investigation as required by the regulations. We find that
the Agency’s articulated reasons for the action in dispute, i.e.,
that Complainant was not entitled to administrative leave, and that
the event was held as a result of a presidential proclamation go to the
merits of Complainant’s complaint, and is irrelevant to the procedural
issue of whether she has stated a viable claim under Title VII and
the 29 C.F.R. Part 1614 regulations. See Osborne v. Department of the
Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States
Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli
v. United States Postal Service, EEOC Request No. 05910642 (August 15,
1991). Complainant has alleged an injury or harm to a term, condition,
or privilege of employment for which there is a remedy. See Diaz
v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED. The complaint is hereby remanded to the Agency for
further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. 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 becomes final, 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.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. 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 (M0610)
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), at 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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
November 18, 2011
__________________
Date
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0120111007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111007