0120072361
09-21-2007
Brad E. Sturman, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Brad E. Sturman,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120072361
Agency No. 2006-20191-FAA-01
DECISION
On April 17, 2007, complainant filed an appeal from the April 11, 2007
final agency decision (FAD) 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUES PRESENTED
The issue presented is whether the complainant was subjected to a hostile
work environment based on his religion.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Air Traffic Control Specialist, FG-2152-11, at the agency's Dulles
Tower, Washington Dulles International Airport facility in Sterling,
Virginia.
On February 10, 2006, complainant filed an EEO complaint alleging
that he was discriminated against on the basis of religion (Jewish)
when, in December 2005, the facility manager (S1) placed religious
literature in the main office, allowed her staff to hang Christmas
decorations during business hours but did not hang Chanukah decorations,
and downloaded Christmas songs to her computer during business hours.
Complainant submitted pictures of a workplace with religious pamphlets
laid on tables next to magazines (the pamphlets were entitled Our Daily
Bread), a Christmas tree, a Christmas wreath, garland, lights, and other
Christmas holiday decorations.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a FAD. The agency first issued a decision on September 22, 2006, in which
it dismissed complainant's complaint for failure to state a claim under
29 C.F.R. � 1614.107(a)(1). Complainant appealed that decision to the
Commission in EEOC Appeal No. 0120070036 (March 9, 2007). The Commission
issued a decision in which it found that the agency improperly dismissed
the complaint, and remanded it to the agency for an investigation and
a new final agency decision. As the agency had already conducted an
investigation, it issued a new FAD on April 11, 2007. The agency found
that complainant had failed to make out a prima facie case of religious
harassment and it concluded that complainant failed to prove that he
was subjected to discrimination as alleged.1
CONTENTIONS ON APPEAL
On appeal, complainant contends that S1, by placing several copies of
the religious pamphlets around the Administrative Office, was promoting
Christianity. He also contends that as Chanukah was on the same day
as Christmas in 2005, there should have been Chanukah decorations in
the office as well. The agency chose not to file a responsive brief in
this matter.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993).
Complainant alleges that he was subjected to a hostile work environment
based upon his religion. To establish a prima facie case of hostile
environment harassment, a complainant must show that: (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. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
In the instant case, we find that complainant has shown that he meets
the first prong of the prima facie case of harassment, in that he is
a member of a statutorily protected class. He is claiming harassment
based on religion, and notes that he is Jewish. Complainant also
meets the second prong of the prima facie case in that he is alleging
that the atmosphere to which he was subjected, the decorations for the
Christmas holiday and the placement of religious pamphlets around the
Administrative Office, was unwelcome. It matters not at this stage of
the analysis that he had not made management aware of his discomfort with
the decorations and pamphlets. Complainant claims that these displays
of the religious pamphlets were offensive to him, as they promoted
Christianity exclusively. He also claims that he was offended by the
Christmas holiday decorations as the Jewish holiday of Chanukah also fell
on December 25 in 2005 and there were no displays of Chanukah decorations
accompanying the tree, lights, garland, etc. The third prong is satisfied
in that the decorations are commonly associated with a Christian holiday,
and the pamphlets were promoting the Christian faith.
Complainant's case fails on the final criteria of the prima facie
case, whether the atmosphere had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. In other words, was it severe
or pervasive enough to create a hostile work environment. We find that
it was not. With respect to the Christmas decorations, based on the
pictures submitted by complainant, we note that the decorations were
predominantly secular in nature - a Christmas tree, wreath, icicle lights,
garland and Santa Claus. The tree seems to have had a number of ornaments
which featured an angel, but the overall display was not religious.
There was not a nativity scene, nor was there any other decoration
which was religious in nature. Although Christmas trees are commonly
associated with the Christian holiday of Christmas, we note that it has
become a prevalent practice for many people and businesses to decorate
evergreen trees, and feature lights and garland, as an expression of
"the winter holiday spirit" in a very secular sense.
With respect to the religious pamphlets, we find that their mere
presence is not enough to establish a severe or pervasive hostile work
environment based on complainant's religion. We note that complainant
did not primarily work in the Administrative Office at the facility as he
performed his duties in the Air Traffic Control Tower. He occasionally
had cause to visit the Administrative Office when he was going to the
union office "in the administrative area" where he would perform his
duties as the treasurer for the local union. However, he did not spend
the majority of his work time in the Administrative Office and so was
not exposed to the Christian materials or Christmas decorations for the
entire duration of his work day.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that the
agency's conclusion, that complainant was not subjected to a hostile
work environment based on his religion, was correct and we affirm the
decision of the agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
9-21-07
__________________
Date
1 In its April 11, 2007 FAD, the agency again questioned whether
complainant had even stated a claim which adequately alleged that he
had suffered a personal harm or injury to the terms and conditions of
his employment. As the Commission has already addressed the agency's
assertions in this regard in our previous decision, we reiterate our
finding that complainant has alleged facts sufficient to state a hostile
or abusive work environment claim.
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0120072361
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072361