0120170628
03-29-2017
Latoya D.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Latoya D.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120170628
Hearing No. 570-2014-01112X
Agency Nos. FBI-2014-00266 & DJ 187-2-1737
DECISION
On November 12, 2016, 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 October 13, 2016, final order concerning her equal employment opportunity (EEO) class 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.
At the time of events giving rise to this complaint, Complainant was a non-supervisory Special Agent, GS-13 at the Federal Bureau of Investigation's (FBI's) Detroit, Michigan District Office, and a retiree as of December 31, 2015.
On June 26, 2014, Complainant filed an EEO class complaint. The Agency forwarded the complaint to an EEOC Hearings Unit. Thereafter, an EEOC Administrative Judge (AJ) issued the parties an Order to Produce Information. 29 C.F.R. � 1614.204(d). Among other things, Complainant was ordered to identify all the specific employment actions alleged to be discriminatory, including dates they occurred, and the time span covered by her allegations.
Complainant filed a responsive affidavit, which the AJ properly used to define and adjudicate Complainant's specified claims, listed 1 through 4 below. The Agency submitted the declaration by the Section Chief of the FBI's Diversity and Inclusion (D&I) Section, Human Resources Division, and argument.
The AJ found that in her complaint Complainant alleged the Agency engaged in discrimination based on race (Caucasian), national origin (Germany, Ireland, Poland - European), sex and religion (Christian) regarding it engaging in various category celebrations (meaning Special Emphasis Program events and activities).2 Specifically, the AJ determined Complainant alleged that:
1. Employees who choose to participate in events or other activities organized by FBI's Special Emphasis Programs receive career-enhancing benefits such as access to and networking opportunities with high-ranking FBI officials and policy makers, exposure to choice assignments, access to FBI resources such as email, movie screenings, award presentations, and so forth.
2. Division leaders have urged managers to attend events they might not otherwise attend despite FBI policy to allow management officials to choose which diversity program events they will attend to meet their mandatory training obligations.
3. The FBI refused to assist Employee 1 who requested that a National Day of Prayer be commemorated in 2010, and in January 2014, denied Employee 2's request to initiate a Religious Christian Special Emphasis Program.
4. Dissemination of information at the Agency regarding LGBT events and activities creates a hostile work environment.
Citing to the declaration of the D&I Section Chief, the AJ found that D&I implements Special Emphasis Programs required by Executive Order, federal law, and Agency policy - specifically, the (1) American-Indian/Alaskan Native Employment Program, (2) Asian-American Pacific American Employment Program, (3) Black Affairs Program, (4) Program for Individuals with Disabilities, (5) Federal Women's Program, (6) Hispanic Employment Program, (7) Lesbian, Gay, Bisexual and Transgender (LGBT) Program, and (8) the Veterans Employment Program.
The AJ dismissed Complainant's complaint on both a class and individual basis. The AJ found that issues 1, 2 and 4 failed to state a claim. 29 C.F.R. � 1614.107(a)(1) & .204(d)(2). On issue 1, the AJ recounted the D&I Section Chief's statement that FBI Diversity Programs are open to all FBI employees regardless of their race, gender, sexual orientation or religion, and are not limited to the specific group receiving recognition. The AJ found that issue 1 failed to state a claim because Complainant did not assert a deviation from this policy with respect to herself or any other FBI employee. The AJ also cited Fairbrother v. Dep't of Defense, EEOC Request No. 05910536 (Aug. 16, 1991) (special emphasis programs are open to all, and are not designed to deprive employees outside the focus group of opportunities and are implemented by agencies pursuant to specific authorities - Executive Orders, EEOC Regulations, and Statutes, and Presidential Proclamations).
On appeal, Complainant disputes the AJ's finding that all Special Emphasis Programs are open to everyone. She writes that in 2008, the Sexual Orientation Advisory Committee solicited nominees for the Committee, but ballots were not emailed to all FBI employees. Complainant contends that in 2008, an employee who she identifies by his initials applied to be on the above Committee and wrote that he was concerned that the FBI's Office of Equal Employment Opportunity Affairs (EEO Office) shows favoritism to select groups. Complainant claims that this employee was not selected by the EEO Office for the Committee, as well as several other heterosexual employees who submitted applications. Appeal brief, at 65 - 68. However, Complainant did not raise this matter in her affidavit, which the AJ properly relied upon in ruling on issue 1.3 We agree, for the reason found by the AJ, that issue 1 fails to state a claim.
On issue 2, the AJ recounted the D&I Section Chief's statement that attendance at the FBI's Diversity Programs is voluntary and employees are not disciplined or otherwise subjected to adverse employment actions for non-attendance. The AJ found that issue 2 failed to state a claim because alleging that managers or any other FBI employee feel urged to attend events they might not otherwise attend does not rise to the level of being harmed or aggrieved.
On appeal, Complainant writes that there have been instances of mandatory attendance at Special Emphasis events. She refers to her allegation in her complaint that she was told by an employee that on June 12, 2014, after a building was evacuated, that a Unit Chief told some employees they had to attend a presentation by a transgender individual hosted by the Criminal Justice Information System Division as part of LGBT month celebration, or take leave. Complaint, at 14 - 15. But Complainant did not include this incident in her affidavit, which the AJ properly used to adjudicate issue 2. She also contends on appeal that FBI supervisors, managers, and executive personnel are required to take mandatory diversity training at least once every two years, but does not indicate the content of this training or whether it is part of the Agency's Special Emphasis program. Appeal brief, at 38. We agree with the AJ that issue 2 fails to state a claim.
On issue 4, citing Commission precedent, the AJ found that this matter did not rise to the level of actionable harassment. Specifically, Ike D. v. Department of Veterans Affairs, EEOC Appeal No. 0120160980 (June 10, 2016) (exposure to two surveys referencing sexual orientation and an email announcing an LGBT meeting does not state a claim). On appeal, Complainant emphasizes that exposure to LGBT programs, events, and advertisements thereof is very offensive to her and others of Christian faith. We agree with the AJ's finding. Bryce B. v. Department of Defense, EEOC Appeal No. 0120160405 (Oct. 29, 2016) (exposure to display of posters, banners, and TV advertisements in support of LGBT Pride month does not state a claim).
On issue 3, the AJ found that Complainant did not initiate EEO counseling until June 11, 2014, beyond the 45-calendar day limit since the incidents occurred in July 2010 and January 2014. 29 C.F.R. � 1614.107(a)(2) & .204(d)(2).4
On appeal, Complainant contends that on May 2, 2014, Employee 2 requested that the Agency initiate a Religious Christian Special Emphasis Program, which was within 45 calendar days of when she initiated EEO counseling. Appeal brief, at 9 - 10. She refers to her complaint allegation that from July 30, 2013 through May 2, 2014, Employee 2 made 15 requests to multiple offices for a Special Emphasis Program for Religion (Christianity), none of which were granted. Complaint, at 29. She specifically discussed this portion of her complaint in her affidavit. Affidavit, at 17. But in her affidavit, Complainant also wrote that the Section Chief of D&I emailed Employee 2 on January 9, 2014, with an explanation of why a Special Emphasis Program on Christianity was not required. Affidavit, at 7. We also note that on May 21, 2013, Complainant emailed the Assistant Director, FBI EEO Office requesting that his office expand its Special Emphasis Programs to include one on Christianity. Complainant alleged that Employee 2 followed up about her request with the Assistant Director and he responded on July 30, 2013, that he was still working on a response. On October 3, 2013, Complainant wrote the Assistant Director that she understood from colleagues that he was working on a response to her May 21, 2013, email, and just heard from others that he intends to modify the religious accommodation policy in response to the email. Complainant explained to him then that she did not request religious accommodation, she requested equal treatment for a protected class. Complaint, at 25, Attachments to Complaint at Section 11, at 1-2, and Section 14, at 1-2. So, by January 2014, Complainant knew that the request to add a Special Emphasis Program on Christianity had been denied by both the Assistant Director of FBI's EEO Office and the Section Chief of FBI's D&I, both high level officials who she represents are in the Senior Executive Service. We agree with the AJ's finding that Complainant failed to timely initiate EEO counseling on issue 3.
The Agency's final order accepting the AJ's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
March 29, 2017
__________________
Date
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.
2 As the AJ noted, while Complainant cited all these bases, her focus was on religion.
3 She also did not raise this matter in with the EEO counselor or in her lengthy complaint.
4 While we do not address this here, there is a question of whether issue 3 states a claim. Starling v. Department of Veterans Affairs, EEOC Appeal No. 01940045 (Aug. 8, 1994) (alleged inadequate observation of Black History Month fails to state a claim).
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