Tristan W.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionDec 14, 20180120173038 (E.E.O.C. Dec. 14, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tristan W.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120173038 Hearing No. 410-2014-00189X Agency No. ARSTEWART12APR01787 DECISION On September 14, 2017, Complainant timely 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 August 25, 2017 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Optometrist (Clinical), GS-0662-12, at the Winn Army Community Hospital in Fort Stewart, Georgia. He evaluated and treated patients. On December 12, 2012, Complainant filed an EEO complaint, as amended, alleging that he was subjected to discrimination and a hostile work environment based on his religion (Orthodox Jew) and reprisal for prior EEO activity when: 1. Beginning on October 26, 2011, and continuing, his first line supervisor (S1) hassled him about taking leave to observe Jewish holidays and ceremonies; 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. 0120173038 2 2. On or about April 2, 2012, S1 stopped allowing him to work on Fridays at the Tuttle Army Health Clinic, Hunter Army Airfield, which was closer to his home; and 3. Effective August 8, 2012, S1 forced him to resign. Following an investigation Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). AJ1, who presided over the hearing, departed the Commission before issuing a decision. The case was reassigned to AJ2, who issued a decision finding no discrimination. AJ2 found that the evidence developed during the investigation and hearing established the following. Regarding issue 1, Complainant requested leave from October 27 – 31, 2011, to visit Israel to attend the unveiling of his deceased father’s headstone, a religious ceremony. However, his return flight from Israel was scheduled for November 1, 2011, making him unavailable to work that day. On October 26, 2011, Complainant noticed that he was scheduled to see patients on November 1, 2011 (16 of them), and advised S1 he would be unable to see them. S1 expressed frustration with Complainant for his failure to request leave in advance, which necessitated rescheduling a whole day of patients. Complainant asked S1 if she was upset because he just took off work for a series of Jewish holidays (Rosh Hashanah, Yom Kippur and Succoth (three sets of Thursdays and Fridays from late September 2011 to about mid-October 2011). Complainant asserted S1 responded “yes” and said whether you are a “Jew or Muslim, you’re not entitled to these days off unless it’s part of the mission.” However, AJ2 found it was more likely than not that S1 did not say “yes,” noting that she denied saying “yes” and saying “yes” was inconsistent with her telling Complainant, concerning November 1, 2011, that it did not matter if he was a Jew or Muslim. Also, Complainant stated that he had no leave-related problems with S1 since she became his supervisor. In sum, AJ2 concluded that the only reason S1 got upset with Complainant on October 26, 2011, was because he did not schedule his leave for November 1, 2011, resulting in rescheduling a full day of patients. Complainant also alleged that in November 2011, he submitted leave requests for the Jewish holidays occurring the following year in September 2012. He was disconcerted that S1 did not approve the leave requests until June 2012. S1 delayed the approval until she could ensure sufficient staff coverage, and Complainant had enough notice that the delay was not even adverse. Regarding issue 2, AJ2 found that the Agency stopped allowing him to work on Fridays at Tuttle because two full-time Optometrists left the Winn Army Community Hospital in Fort Stewart, causing a staff shortage there. Complainant previously indicated that he preferred to work closer to home on Fridays at Tuttle because it would be easier for him to fulfill the religious requirement of getting home before sundown on Fridays, especially in the shorter day winter months. But in an April 11, 2011 email to his second line supervisor (S2), Complainant wrote that he was “totally fine” with working at Winn Army Community Hospital, enjoyed the staff there, and thereafter he did not challenge the decision to keep him at Winn Army Community Hospital or request a further opportunity to work at Tuttle, either as a religious accommodation or otherwise. 0120173038 3 Concerning issue 3, S1 issued Complainant a Letter of Counseling on April 11, 2012, for insubordination, specifying that in the five days before April 11, 2012, he undermined her authority by encouraging patients at Tuttle to question her decision to keep him full-time at Fort Winn Army Hospital; on April 25, 2012, S1 confronted Complainant after he returned from a Holocaust memorial service at Winn Army Community Hospital later than scheduled (almost by half-hour) without notifying her, missing his 1 PM appointment with a patient; S1 told Complainant on April 25, 2012, that a co-worker Tuttle Optometrist requested Complainant apologize to her for questioning her competence; S1 charged Complainant absence without leave (AWOL) on April 25, 2012, for arriving to work an hour late because he did not request nor did S1 grant him leave; on May 31, 2012, S1 issued Complainant an Official Letter of Reprimand charging him with insubordination, discourtesy toward her, and failure to follow procedures, specifying some incidents above and specifying his not requesting leave for November 1, 2011, his walking out of a meeting without being dismissed (when S1 attempted to counsel him on October 26, 2011 on the November 1, 2011 matter), and his walking out of a meeting on April 25, 2012 (despite S1 explicitly telling him not to do after attempting to counsel him for being an hour AWOL and advising him the co-worker wanted an apology). When S1 gave Complainant the Official Letter of Reprimand on May 31, 2012, he left the meeting twice, the second time going to the emergency room for some minutes before returning to his office. When Complainant saw S1 walk by his office, he yelled down the hallway to her “You are an anti-Semite!” and when S1 did not respond yelled louder “You’re a Jew hater!” S1 issued Complainant a proposed for up to 5-day suspension on July 5, 2012, charging him with discourteous and unprofessional behavior on May 31, 2012. By email on July 26, 2012, to S2, Complainant requested 10 months of leave without pay (LWOP) starting August 10, 2012, during which time he would reside in Israel. By email to Complainant on July 30, 2012, S2 denied the request, based on S1’s input on the Agency’s need for his services. Complainant resigned (effective August 8, 2012), after agreeing to take a teaching position in Israel. AJ2 concluded that Complainant was not constructively discharged because he failed to prove that his working conditions were discriminatory or so intolerable that a reasonable person would have resigned. On August 25, 2017, the Agency issued a final order, implementing AJ2’s decision finding no discrimination. The instant appeal followed. On appeal, Complainant argues that because AJ2 did not preside over the hearing, his decision was based solely on the written record. He argues that he proved discrimination. Complainant contends S1’s testimony is not credible because she previously stated under oath that she never made the Jew or Muslim remark, but at the hearing admitted doing so. He reiterates his contention that on October 26, 2012 (when S1 was talking to him about the 0120173038 4 November 1, 2012 issue) he asked S1 if she was upset because he just previously took off a series of Thursdays and Fridays for Jewish holidays, and S1 replied “Yes.” ANALYSIS AND FINDINGS Under EEOC Regulation 29 C.F.R. § 1614.405(a), a decision on appeal is by a preponderance of the evidence. An appeal from an Agency’s final action is subject to a de novo standard of review, except that the review of the factual findings in a decision by an AJ following a hearing. Id. As argued by Complainant, AJ2 did not preside over his hearing. Given this, we will apply the de novo standard of review. Our independent review of the evidence of record, including the investigative report and hearing transcript, fully supports AJ2’s findings of fact and conclusions of law. The responsible management officials articulated legitimate, nondiscriminatory reasons for the disputed actions, as fully detailed in AJ2’s decision, and Complainant failed to prove, by a preponderance of the evidence, that these reasons were pretext designed to mask discriminatory animus. Complainant’s appellate arguments on the merits of his case are unpersuasive. We disagree with Complainant that S1 varied her statements under oath on the Jew or Muslim comment. At the transcribed investigatory fact-finding conference, S1 was asked to respond to Complainant’s recounting of the “incident… stemming from October 26, 2011.” S1 responded “Okay, I had said several times that what he was saying isn’t what happened.” S1 was not specifically asked at that time about the Jew or Muslim comment. Report of Investigation (ROI), at 348. At the hearing, when asked if she made the Jew or Muslim remark, S1 testified that “I might have.” Hearing Transcript (HT), at 512. There is no conflict. Further, we agree with the AJ’s finding that it is more likely than not that when Complainant asked S1 if she was upset because he just previously took off for a series of Jewish holidays, she did not say “yes.” Accordingly, the Agency’s final order 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 0120173038 5 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). 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 0120173038 6 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 December 14, 2018 Date Copy with citationCopy as parenthetical citation