0120132112
04-17-2015
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120132112
Hearing No. 520-2012-00306X
Agency No. FBI-2011-00223
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's May 10, 2013 appeal from the Agency's April 18, 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.
Background
At the time of events giving rise to this complaint, Complainant worked as a GS-12 Financial Analyst (FA) at the Agency's Field Office in New York, New York. Complainant was assigned to Squad CT-30. According to the Agency's directed reassignment policy, all employees are subject to transfer based on legitimate management needs, but employees in certain job positions - including FA positions - have a higher likelihood of transfer based on the nature and requirements of Agency missions.
In a May 25, 2011 phone conversation, the Supervisory Forensic Accountant (SFA - Protestant) advised Complainant that he would be transferred, effective May 31, to a FA position supporting Squad CY-3 (Crimes Against Children). Later that day, in an email to SFA and the Coordinating Supervisory Special Agent of Financial Crimes (CSSA1 - Roman Catholic), Complainant requested the cancellation of his transfer based on his religious beliefs. Specifically, Complainant's email stated that the squad was involved in investigating child pornography and that his "strong Christian beliefs add to [his] repulsion and forbid [his] being around anything that has to do with this abomination."
On May 31, 2011, Complainant had not yet reported to Squad CY-3. In a morning email to SFA, Complainant stated that he needed more time to move his belongings because he had been out of the office from May 26 to May 30 and that CSSA1 had not responded to his request. In a reply email that was copied to CSSA1 and a Supervisory Special Agent (SSA - Christian), SFA advised Complainant that he needed to report to Squad CY-3 the next day because, according to CSSA1, there were no other options at the time. That afternoon, the Deputy Administrative Officer (DAO - Catholic) intervened and put Complainant's transfer on hold.
On June 1, 2011, DAO advised Complainant that his transfer would be to Squad CY-2 (Criminal Intrusions) instead of Squad CY-3. The transfer was effective the week of July 11.
On July 12, 2011, Complainant reported to Squad CY-2. When Complainant arrived, a Special Agent (SA) assigned to Squad CY-2 advised him that he should report to Squad CY-3. When Complainant told SA that he was instructed to report to Squad CY-2, SA called the Coordinating Supervisory Special Agent of Cyber (CSSA2 - Jewish) on the phone for clarification. Complainant alleged that, when he attempted to explain to CSSA2 on the phone that DAO had assured him he would not have to report to Squad CY-3, CSSA2 screamed at him, "I do not care what [DAO] said. If [DAO] doesn't like it, you could go back to where you came from." Immediately after the phone call, CSSA2 met with Complainant to discuss the matter. Complainant explained why he was not supposed to report to Squad CY-3. At the conclusion of the meeting, CSSA2 advised Complainant to temporarily stay in the Squad CY-2 area.
On July 13, 2011, while Complainant was in the Squad CY-2 area, CSSA2 advised him to report to DAO. Until late August or early September 2011, Complainant reported directly to DAO. The record contains an August 10, 2011 letter from Complainant's pastor requesting that DAO cancel the transfer to Squad CY-3 for religious reasons. In late September 2011, Complainant was transferred to Squad FOA3.
On October 11, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of religion (Catholic) and reprisal for prior protected EEO activity (May 25, 2011 request for religious accommodation) when:1
1. In May 2011, the Agency told him to report to Squad CY-3; and
2. On July 12, 2011, the Agency again told him to report to Squad CY-3 and, when he explained that DAO had assured him he would not have to report to Squad CY-3, CSSA2 screamed at him.
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). Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency's November 29, 2012 motion for a decision without a hearing and issued a decision without a hearing on March 6, 2013.
First, the AJ found that Complainant failed to establish a prima facie case of discrimination based on religious accommodation. Specifically, the AJ found that Complainant did not show that being a FA in Squad CY-3 was a conflict with his bona fide religious beliefs as a Catholic. In so finding, the AJ cited the undisputed affidavit testimony of SFA and DAO that they had assured Complainant that he would not be exposed to child pornography, but would only be responsible for inputting invoices into the computer and maintaining books and records for covert operations conducted by the squad. In addition, the AJ found that the Agency accommodated Complainant because at no point did Complainant ever report to or work for Squad CY-3 - which was precisely the accommodation he requested.
Second, regarding CSSA2's verbal conduct during the phone conversation, the AJ found that Complainant failed to establish a prima facie case of reprisal discrimination. Specifically, the AJ found that Complainant did not show that CSSA2 was aware of his request for religious accommodation at that time.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant argued that the Agency is guilty of religious discrimination by refusing to honor his May 25, 2011 request to cancel his transfer to Squad CY-3. Specifically, Complainant asserted that AO was the only person in the Agency who "stood by [him]" in his religious objection while the other management officials (SFA, CSSA1, SSA, CSSA2) ignored his request.
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), Ch. 9, � VI.B (Nov. 9, 1999) (providing that both the AJ's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 EEO MD-110, Ch. 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").
AJ's Issuance of a Decision Without a Hearing
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that there is no genuine issue of material fact. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond to such a statement, and he was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Denial of Religious Accommodation
A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to comply with his religious beliefs. EEOC Compliance Manual Section 12, "Religious Discrimination," No. 915.003, � IV.A (July 22, 2008). 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. Id. The employer's duty to accommodate will usually entail making a special exception from, or adjustment to, the particular requirement so that the employee will be able to practice his religion. Id. When an employee's religious belief or practice conflicts with a particular task, appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict with the employee's religion. Id. at � IV.C.3.
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 a complainant to demonstrate that: (1) he has a bona fide religious belief, the practice of which conflicted with their employment, (2) he informed the agency of this belief and conflict, and (3) the agency nevertheless enforced its requirement against him. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Mo.-Kan.-Tex. R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).
Upon review of the record, we find that the Agency did not deny Complainant a religious accommodation because it did not require him to transfer to Squad CY-3. Specifically, the record reflects that Complainant asked the Agency to cancel the transfer because his Christian beliefs did not allow him to be around child pornography and Squad CY-3 investigated child pornography. In addition, the record reflects that - after receiving Complainant's request - the Agency suspended his transfer to Squad CY-3, explored other options such as having him report to Squad CY-2 or directly to DAO, and then ultimately transferred him to Squad FOA3. Moreover, Complainant admitted in his deposition testimony that he never reported to work, or performed any work, in Squad CY-3. Complainant's Deposition Testimony, at 19, 33. Although Complainant argued that we should evaluate each management official's actions as a separate grant or denial of accommodation, we decline to do so. We note that it is the employer's duty to accommodate and find, for the reasons explained above, that the Agency met its duty. See 29 C.F.R. � 1605.2(b)(1).
Hostile Work Environment Harassment
As an initial matter, we find that Complainant's allegation that CSSA2 screamed at him on July 12, 2011 should be analyzed as a claim of harassment. To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Upon review, we find that Complainant failed to establish his claim of religious or retaliatory harassment. Specifically, we find that Complainant did not prove, by a preponderance of the evidence, that CSSA2's alleged conduct was based on his religion or in retaliation for his request for religious accommodation. Complainant alleged that, when he attempted to explain to CSSA2 on the phone that DAO had assured him he would not have to report to Squad CY-3, CSSA2 screamed at him, "I do not care what [DAO] said. If [DAO] doesn't like it, you could go back to where you came from." We note that CSSA2's alleged comments do not contain any references to Complainant's religion or request for religious accommodation. The record also contains no evidence that CSSA2, at the time when he allegedly screamed at Complainant, was aware of Complainant's religion or request for religious accommodation. Moreover, we find that CSSA2's alleged verbal conduct - screaming those words at Complainant over the phone on one occasion - is not sufficiently severe or pervasive to constitute a hostile work environment.
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 because the preponderance of the evidence does not establish that religious or reprisal discrimination occurred.
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 (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 (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
_4/17/15_________________
Date
1 Complainant alleged only the basis of religion for the May 2011 incident and both bases for the July 12, 2011 incident.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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