Garry H.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

0120181570 (E.E.O.C. Sep. 24, 2019)

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

Garry H.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120181570

Agency No. 2017-27258-FAA-05

DECISION

Complainant 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 December 29, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control
Specialist (2152-AT-LG), Cedar Creek Specialty, Fort Worth Air Traffic Control Center.

The record reveals that Complainant works in a control room that is divided into six sections, with
each section called a “Specialty.” Complainant stated that a coworker in the Glen Rose Specialty,
Person A, put up the following decorations in the Glen Rose Specialty: a sign that read “Happy
Hanukkah,” a silver and blue garland along with stars of David on the light; a sign that read “Happy
Kwanza;” and a sign that said, “Santa is coming in [x number] of days,” along with Christmas
lights and wrapping paper. Complainant noted the decorations in question were not in the section
he worked in; however, he stated he walked by the Glen Rose Specialty daily to get to his Specialty.

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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On May 18, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of religion (Jewish) when:

On December 18, 2016, all non-Christmas decorations were taken down while Christmas
decorations throughout the facility were allowed to remain.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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”).

Generally, claims of disparate treatment are examined under the tripartite 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, she 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, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com.
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 her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509
(1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases.
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Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence
that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990).

We assume for the purposes of this decision that Complainant has presented sufficient evidence to
establish the elements of a prima facie case as set forth above. We note the decorations
Complainant complained about were secular decorations that are permitted throughout the federal
government and work environment. The record shows the holiday decorations in the Glen Rose
Specialty consisted of a sign that said “Santa Clause is coming in [x number] of days,” Christmas
lights and wrapping paper. According to the U.S. Supreme Court, such holiday decorations
amount to secular symbols rather than an expression of a religion and displaying them in the federal
workplace does not violate the establishment clause of the First Amendment. See County of
Allegheny v. ACLU, 492 U.S. 573 (1983). Further we note the Commission has stated that Title
VII does not require a public or private employer to remove holiday decorations or add holiday
decorations associated with other religions. Complainant v. Dep’t of the Treasury, EEOC Appeal
No. 0120160622 (April 27, 2018).2 Moreover, we note to the extent that Complainant raises a
claim of hostile work environment, we find the record devoid of evidence to support such a claim.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination 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.

2 See EEOC Compliance Manual Section 12, “Religious Discrimination” No. 915.003, (July 22,
2008) (Religious Discrimination Compliance Manual), Ex. 52 and n. 112 (citing County of
Allegheny v. ACLU, 492 U.S. 573 (1989) (the U.S. Supreme Court has held that wreaths and
Christmas trees are “secular” symbols, akin to items such as lights, Santa Claus, and reindeer, and
thus that government display of these items does not violate the establishment clause of the First
Amendment)).
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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. 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.

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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

September 24, 2019
Date