0120140422
09-08-2016
Solomon B.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Solomon B.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120140422
Hearing No. 451-2012-00200X
Agency No. HSCBP001192012
DECISION
On November 14, 2013, Complainant filed an appeal from the Agency's November 1, 2013, final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Agency discriminated against, or subjected Complainant to a hostile work environment, based on race, national origin, age, religion, and in reprisal for prior EEO activity when his requested religious accommodation was denied; his supervisor called him while he was on approved sick leave; and he was issued a Letter of Reprimand.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Field Analysis Specialist at the Agency's El Paso Field Office in El Paso, Texas. On August 12, 2011, Complainant arrived to work late, and between then and October 27, 2011, he was recorded as arriving late to work an additional eighteen times. When Complainant's supervisor (S1) (White, Hispanic, 48 years old, Christian, unknown EEO activity) informed him that he needed to start coming to work on time, Complainant responded that he performed a religious "greeting the sun" ritual, which caused him to arrive late to work at times.
On October 28, 2011, S1 gave Complainant a Memorandum of Instruction that noted his eighteen absences, and informed him of his need to correct the issue. In November 2011, Complainant's work schedule was changed to move his arrival and departure times by thirty minutes, starting at 8:30am. Complainant, however, continued to arrive to work late.
On November 7, 2011, a Mission Support Specialist sent an email stating that certain employees, including Complainant, were eligible to transfer, and that interested employees should submit their resumes by November 10, 2011. On November 8, 2011, Complainant underwent surgery, and was scheduled to be on sick leave through November 15, 2011. Also on November 8, 2011, S1 called Complainant, and left a voicemail stating that he was aware that Complainant would be on leave, and that if he was interested in the transfer, to let S1 know because he could request an extension for Complainant.
In December 2011, Complainant asked the then Director, Field Operations (DFO1) (White, Hispanic, 47 years old, Christian, unknown EEO activity) for a "flexible gliding schedule," to arrive any time between 8:30am and 9:00am. On January 12, 2012, the DFO1 denied his request, but offered to change his work schedule to 9:00am to 5:30pm. Complainant declined the offer stating that the offer violated established regulations for regular hours of operations from 8:00am to 5:00pm.
On February 23, 2012, Complainant's second line supervisor (S2) (White, Mexican-American, 56 years old, Catholic, unknown EEO activity) issued him a Letter of Reprimand for his tardiness. The letter noted that after receiving the October 2011 memo, Complainant was late three times in November, eleven times in December, and an unspecified number of times in January 2012. Complainant responded to the reprimand, stating that the letter failed to mention the underlying cause of his tardiness, which is the "conflict between the Agency's policy and [his] Native American Religious Practices and Beliefs each morning in 'Greeting the Sun.'"
On March 12, 2012, Complainant submitted a second religious accommodation request to the DFO1, asking for a work schedule of 9:00am to 5:00pm, with no lunch break or; a flexible arrival time between 8:30am and 9:00am. The DFO1 responded that he was approved for a work schedule from 9:00am to 5:30pm. Complainant again objected noting that the Agency's policy provides that a regular work schedule is from 8:30am to 5:00pm, and that his departure time of 5:30pm would be outside of the Agency's policy, which he did not consider to be "reasonable."
In the spring of 2012, the DFO1 began a detail assignment and an acting Director, Field Operations (DFO2) (unknown race, unknown national origin, unknown age, unknown religion, unknown EEO activity) arrived. On March 27, 2012, Complainant directed his religious accommodation request to S1, copying the DFO2, requesting a flexible schedule. S1 responded that the DFO1 had offered a change in his work schedule to 9:00am to 5:30pm, and that if Complainant was interested in the change, to please let him know. Complainant did not accept, and on April 3, 2012, Complainant emailed his request to the DFO2. Complainant stated that he found the DFO1's offer to be "unreasonable and disparate" because while S1 and the DFO1 stated that employees must take a lunch break, he named an employee (E1) who worked a "straight 8 hour shift." The DFO2 responded that he did not know E1's schedule, but that E1 was not Border Security staff, and that all Border Security staff, including the DFO2, take at least a 30 minute lunch break.
On May 21, 2012, the DFO2 sent Complainant a letter stating that since his request, the Agency initiated a schedule change for all Border Security staff to work a straight eight hour shift. The DFO2 noted that Complainant had notified S1 that he would work from 9:00am to 5:00pm, and that Complainant had received what he asked for.
On January 9, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against, and subjected him to a hostile work environment on the bases of race (Yaqui Indian), national origin (American Indian), age (58), religion (Christian), and in reprisal for requesting a religious accommodation and for filing the instant EEO case when:
1. Since September 22, 2011, his requests for religious accommodation for a flexible work schedule were denied, and he was charged between fifteen and twenty minutes of annual leave on various occasions for arriving late after morning prayers and meditation;
2. On November 8, 2011, his supervisor called him to discuss work related matters when he was on approved sick leave; and
3. On February 23, 2012, he was issued a Letter of Reprimand for his tardiness.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case issued an order granting the Agency's October 29, 2012, motion for a decision without a hearing on June 19, 2013. The AJ issued a decision without a hearing on August 29, 2013.
As an initial matter, the AJ found that this case was ripe for summary judgment because the record was adequately developed; there were no material facts in genuine dispute; there were no genuine issues as to credibility; and Complainant had adequate notice and opportunity to respond to the Agency's motion.
The AJ found that Complainant had not established a prima facie case of discrimination based on race, national origin, religion, or age because there was no evidence that he was treated less favorably than anyone outside of his protected classes. Complainant named one coworker as a comparator (C1), but the AJ found that even assuming that C1 was outside of Complainant's protected classes, they were not similarly situated because C1 was late only twice, while Complainant was late 66 times, during the same time period. Additionally, C1 informed his supervisors in advance that he would be late both times, while Complainant did not.
The AJ found that Complainant had not established a prima facie case of religious discrimination for a failure to accommodate. Assuming, arguendo, that Complainant had established a prima facie case, the AJ found that the Agency accommodated him because it moved his work schedule later and later to give Complainant time for his morning ritual.
For Complainant's allegation that he was subjected to a hostile work environment, the AJ found that the voicemail was not severe or pervasive to meet the definition of harassment; and Complainant did not show that S1 left the voicemail because of Complainant's protected categories.
In regards to Complainant's reprisal discrimination claim, the AJ found that since Complainant was accommodated, and the one voicemail message from S1 did not rise to the level of harassment, only the Letter of Reprimand could be considered to be allegedly retaliatory. However, while citing University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct 2517 (2013), the AJ found that Complainant could not show that "but for" his request for a religious accommodation or the filing of the instant EEO complaint, he would not have been issued the Letter of Reprimand.2 The AJ then found that Complainant had not shown pretext for discrimination when he was issued the reprimand.
The AJ concluded that Complainant had not shown that he was discriminated against, or subjected to a hostile work environment based on his protected categories. On November 1, 2013, the Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency subjected him to discrimination as alleged.
Complainant filed the instant appeal, and submitted a brief in support of his appeal on December 12, 2013. The Agency submitted an opposition brief on January 10, 2014, requesting that the Commission affirm its final order.
CONTENTIONS ON APPEAL
On appeal, Complainant states that S1, and another supervisor, have questioned his heritage and prayer rituals; and have "embarked on a path of continual discrimination, harassment and intimidation via counseling sessions and issued Letters of Reprimand, instead of moving to process my multiple requests for religious accommodation." Additionally, Complainant argues that Agency's 292 page brief is "prima facie evidence" of the "systematic apocalyptic efforts to avoid a religious accommodation" for him. Complainant also states that he has seen the Agency's "systematic unwillingness" to accommodate individuals, despite their "medically irrefutable evidence."
With his appeal brief, Complainant provided: (1) an email he sent to S1 wishing him a happy birthday to show that he harbors no ill will towards S1 because "it would not be the Christian way;" (2) a response letter from the DFO2, dated May 21, 2012; and (3) a Letter of Reprimand for tardiness, dated August 9, 2013.
In response, the Agency notes that Complainant has not specified any errors of law or fact in the AJ's findings. Additionally, the Agency argues that Complainant's complaints about the length of the Agency's Motion for Summary Judgment, his email showing that he engaged in civil discourse with S1 on one occasion, and his general displeasure about how the Agency treats individuals with disabilities (while his own claim is for religious accommodation) are not a legitimate basis for appeal.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
ANALYSIS AND FINDINGS
As a general rule, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), at Ch. 9, � VI.A.3 (Aug. 5, 2015). Complainant has not shown that the email to S1 was not reasonably available earlier, and as such, we will not consider it for the purposes of this decision. We note that the May 21, 2012, letter is already contained in the record, and will be considered.
The Commission has the discretion to review only those issues specifically raised in an appeal. MD-110, at 9-10. We note that on appeal, Complainant has not raised any arguments regarding the AJ's issuance of a decision without a hearing, and as such, we will not address that matter in this decision. Additionally, this decision will not address the August 9, 2013, Letter of Reprimand because it is raised for the first time on appeal.
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 an employee 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 the employee. 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).
Once an employee establishes a prima facie case, the Agency must show that it made a good faith effort to reasonably accommodate the religious beliefs and, if such proof fails, the Agency must show that the alternative means of accommodation proffered by the employee 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 Corp., 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989).
Assuming, arguendo, that Complainant had established a prima facie case of discrimination based on religious accommodation; we find that the Agency made good faith efforts to reasonably accommodate him. In October 2011, Complainant informed S1 that his late arrivals were due to his morning prayers, and his schedule was adjusted in November 2011. Starting in December 2011, when Complainant requested his religious accommodation from the DFO1, S1, and the DFO2, he was offered a work schedule with a start time of 9:00am. Complainant declined the offers because he did not want to work past 5:00pm. We find that the management officials' offers to move Complainant's start time to a later time to accommodate his morning prayers were made in good faith. Additionally, we do not find Complainant's rejection of these offers on the grounds that it was unreasonable to expect him to work past 5:00pm to be reasonable on his part. We note that Complainant's religious accommodation request was related to his morning prayers, and that he did not state that he needed to leave by a certain time, due to his religion.
In May 2012, Complainant's schedule was changed, outside of accommodation process, and Complainant stated that since then, he has not been late. Had Complainant accepted the change to start his work schedule to 9:00am in January 2012, he would have been accommodated since then. As such, we find that the Agency did not discriminate against Complainant based on religion because the Agency made good faith efforts to reasonably accommodate his religious beliefs.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant had established a prima facie case of discrimination based on race, national origin, age, religion, and in reprisal for protected EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. For claim 2, S1 stated that he called Complainant due to the time-sensitive nature of the situation. He stated that a response regarding interest in the transfer was due prior to Complainant's expected return, and that the sole purpose of the phone call was to inform him of the opportunity. For claim 3, S2 stated that he issued the Letter of Reprimand because S1 had tracked Complainant's repeated tardiness. We also note that Complainant did not contest that he was late to work.
Complainant has not shown that the proffered reasons were pretext for discrimination. Accordingly, we find that the Agency did not discriminate against Complainant based on race, national origin, age, religion, and in reprisal for protected EEO activity, when S1 called him while he was on approved sick leave; and S2 issued him a Letter of Reprimand.
Harassment
As discussed above, we find that Complainant did not establish a case of discrimination on any of his alleged bases. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
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 order adopting the AJ's finding that the Agency did not discriminate against, or subject Complainant to a hostile work environment, based on race, national origin, age, religion, and in reprisal for protected EEO activity, when it denied his requested religious accommodation; S1 called him while he was on approved sick leave; and S2 issued him a Letter of Reprimand.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
___9/8/16_______________
Date
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.
2 In Petitioner v. Dep't of Interior, EEOC Petition No. 0320110050 (July 16, 2014), the Commission found that the "but for" standard discussed in Nassar does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not contain the "because of" language on which the Supreme Court based its holdings in Nassar and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (requiring "but for" causation for ADEA claims brought under 29 U.S.C. � 623).
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