Harold M.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jun 19, 2019

0120180643 (E.E.O.C. Jun. 19, 2019)

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

Harold M.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120180643

Agency No. DOS009517

DECISION

On December 11, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 9, 2017 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Foreign Service
Officer, FS-02 assigned as a student in the Agency’s School of Language Studies, German section
in Arlington, Virginia.

On March 27, 2017, Complainant filed an EEO complaint alleging that he was discriminated
against based on his religion (Jewish) when:

1. The Agency failed to provide him with a reasonable religious accommodation so that he
could attend a voluntary immersion trip in Germany; and

2. The Agency subjected him to a hostile work environment by questioning his religious
traditions, singling him out and generally humiliating him based on 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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Following an EEO investigation, the Agency provided Complainant with a report thereof, and
notified him of his right to request a hearing before an Equal Employment Opportunity
Administrative Judge. Complainant requested a FAD, and the Agency found no discrimination.
The instant appeal followed.

ANALYSIS AND FINDINGS

The immersion trip to Germany was scheduled for April 4, 2017 – April 14, 2017. The Passover
holiday ran from April 10, 2017 – April 18, 2017, and as observed by Complainant, consisted of
two nights of a ritual Seder meal and prayer service celebrated in the home or with friends in the
community, and following Passover dietary laws for the entire holiday. As a reasonable
accommodation, Complainant requested that the trip be rescheduled.

The traditional framework for establishing a prima facie case of discrimination based on failure to
provide a religious accommodation requires a complainant 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 complainant. 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).

The Commission characterizes religious practices in broad terms. However, the evidence shows
that Complainant’s bona fide religious beliefs did not conflict with his employment. The
immersion trip identified by Complainant was a voluntary program, and was self-funded. All
parties involved, including Complainant, conceded that the trip was voluntary, not a requirement
of his employment. As such, there is no showing that Complainant’s objections to the scheduling
of the trip conflicted with an employment requirement.

Furthermore, even if Complainant had proven prima facie discrimination, he failed to prove he
was denied a reasonable accommodation. Once a complainant establishes a prima facie case, the
agency must show that it made a good faith effort to reasonably accommodate complainant's
religious beliefs and, if such proof fails, the agency must show that the alternative means of
accommodation proffered by complainant 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 Corporation, 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. U.S.
Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989). The record shows that the Agency
sought ways of accommodating Complainant without displacing other employees who also sought
to go on the immersion trip. The Agency offered Complainant the opportunity to attend an
alternative on-campus one-week language immersion program. The Language and Culture
Instructor stated it was her understanding that, in the end, Complainant attended the Germany trip,
but left early one or two days. We find this was an effective alternate accommodation.

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Complainant also alleged that he was subjected to a hostile work environment and harassment. To
establish a prima facie case of hostile environment harassment, Complainant must show the
existence of four elements: (1) he is a member of a statutorily protected class; (2) he was subjected
to harassment in the form of unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected class; and (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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct.
16, 1998); 29 C.F.R. § 1604.11.

Complainant was a member of a statutorily protected class based on his religion, thereby satisfying
the first requirement. Complainant alleged that the Agency offering him alternatives to
rescheduling the immersion trip in Germany such as making arrangements for him to observe
Passover during the trip or an alternative immersion program was harassing, but this is not
corroborated by the facts. The record shows that all communications between Complainant and
Agency were either cordial in nature or initiated by Complainant himself. For example,
Complainant has cited a meeting between himself and the Agency as being unwanted verbal
conduct that questioned his religious beliefs. However, all evidence provided indicates that the
meeting centered around discussing, and ultimately offering, attempts at reasonable
accommodation for Complainant’s conflict. Complainant also cited a meeting with his professors
and classmates that ended in a vote to determine the most desired dates for the immersion trip.
While the vote did not go Complainant’s way, this does not amount to harassment.

Accordingly, the FAD 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
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.
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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 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

June 19, 2019
Date