0120150383
11-30-2017
Simonne J.,1 Complainant, v. Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Simonne J.,1
Complainant,
v.
Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120150383
Hearing No. 570-2010-00098X
Agency No. ARRAC-09-OCT-04769
DECISION
On October 28, 2014, 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 September 29, 2014, final order concerning her 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 order.
ISSUES PRESENTED
The issue presented herein is whether an Equal Employment Opportunity Commission Administrative Judge's (AJ) finding that Complainant did not establish harassment based on national origin (Bosnian) and religion (Islam) is supported by substantial evidence.
BACKGROUND
During the period at issue, Complainant worked as a Contract Specialist, YA-1102-02, at the Agency's 408th Army Contracting Command (ACC) in Doha, Qatar. On January 11, 2010, she filed a formal EEO complaint in which she alleged national origin and religion discrimination when she was harassed. The Agency accepted the complaint for investigation.
After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Administrative Judge. Complainant timely requested a hearing, which was held on April 29, 2014, and April 30, 2014. On September 16, 2014, the AJ issued a decision in which he found that Complainant did not establish discrimination as alleged. The Agency subsequently issued a final order adopting the AJ's finding. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the arguments put forth by the Agency to support a finding of no discrimination are untruthful. For its part, the Agency contends that Complainant often contradicted her own allegations and requests that the Commission affirms its adoption of the AJ's finding of no discrimination. Both parties' contentions will be addressed below.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, irrespective of whether a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Complainant alleged that she was subjected to harassment when: (1) on an unspecified date, her second-line supervisor (S2) stated that "I have to treat you like an American" and identified Complainant as a force protection issue; (2) on an unspecified date, S1, her first-line supervisor, questioned her about eating during a religious fast; and (3) on October 7, 2009, S1 forced her to wear a jacket at work while not holding anyone else to the same requirement.2
After holding a two-day hearing regarding Complainant's harassment allegations, the AJ found that on August 19, 2009, all ACC employees stationed in Qatar were required to attend a Ramadan briefing. Complainant requested to be excused from the meeting because she was Muslim and knew the applicable rules for Ramadan. The AJ further found that S2 denied this request because she had to treat all Americans the same, and because Complainant was an American citizen, she was required to undergo Ramadan training like all ACC employees. Moreover, the AJ found credible S1's and S2's testimony that they never stated Complainant was a force protection issue. See Administrative Judge's (AJ) September 16, 2014 Decision at 10.
The AJ also found that Complainant told S1 and S2 that she would be fasting during Ramadan. S2 observed Complainant eating several times during Ramadan and asked Complainant why she was eating, Complainant noted that she could eat during Ramadan because she was sick and on medication. Complainant explained that when such conditions are present, exceptions are made to the Ramadan fasting requirements. S2 stated that she asked Complainant about eating during Ramadan because Complainant was religiously accommodated to work certain hours, and S2 was concern that other employees would interpret Complainant's eating as favoritism. The AJ found S2's reason for questioning Complainant about eating to be connected to Complainant's religious accommodation, and not an indication of animus toward Complainant because of her religion or national origin, especially considering the Agency continued to accommodate Complainant during Ramadan. Id. at 15-16.
Finally, the AJ found that S1 did require Complainant to wear a jacket on October 7, 2009. However, the AJ also found that the Agency's reason for doing so was related to the Agency's dress code and not animus because of Complainant's national origin or religion. Specifically, the AJ found that the Agency's policy, to adhere to Qatari custom, required females to keep their arms covered. While the policy provided that female employees could remove their jackets in the event it was hot in the office, those jackets could not be removed if the underlying attire violated the dress code. S1 stated that on the day in question, Complainant donned a lingerie type blouse, which was strapless and clearly out of line with Agency policy. S1 and one of Complainant's witnesses testified that S1's description of Complainant's dress on the day in question was truthful. Id. at 17.
Based on our review of the record, and the AJ's findings and credibility determinations, we find that there is substantial evidence in the record to support the AJ's findings that the actions of which Complainant complained of were not based on her protected classes, namely, her national origin and religion.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's finding that Complainant did not establish harassment based on national origin and religion is supported by substantial evidence. Accordingly, the Agency's final decision 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. 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
__11/30/17________________
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 Complainant also alleged a fourth incident of harassment but subsequently withdrew that claim. Therefore, this decision does not address that matter.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120150383
2
0120150383