0120131195
10-23-2014
Agency.
Class Agent,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120131195
Hearing No. 550-2012-00379X
Agency No. CRSD-2012-00803
DECISION
On January 31, 2013, Complainant, as Class Agent, filed an appeal from the Agency's January 17, 2013 final order concerning his 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. 1614.405(a).
BACKGROUND
During the period at issue, the Class Agent worked as a Property Management Officer at the Agency's Forest Service in Chino Valley, Arizona.
On June 22, 2012, Complainant filed the instant class complaint alleging that the Agency subjected him and other class members to harassment and a hostile work environment on the basis of religion when Agency management failed to "provide equality and inclusiveness of Christians." EEO Counselor's Report.
Specifically, Complainant alleged that he and other class members have been discriminated against based on their religion because Agency's policies and actions are "contra to congressionally passed laws establishing Christmas, Thanksgiving and Martin Luther King Day." More specifically, Complainant alleged that the Agency does not honor federal holidays with "rightful" legal names in recognition of the Christian faith. For instance, Complainant stated that "Martin Luther King" should be "Reverend Martin Luther King Day" and that the Agency has removed all reference to Christian values, culture or origins with regard to Thanksgiving and Christmas. Further, Complainant stated that other "Civil Rights protected classes" receive recognition in the form of celebrations and the appointment of Special Emphasis Managers. As examples, Complainant pointed to the establishment of "Hispanic month, Native American month, African-American or Black History month, Women's month, Gay Pride month, etc." EEO Counselor's Report.
The Agency forwarded the instant class complaint to an EEOC Administrative Judge (AJ). On November 5, 2012, the AJ issued a decision dismissing the class complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The AJ determined that, in order to state a claim of disparate treatment based on religion or a claim of hostile work environment harassment based on religion, a complainant must allege that he or she is being treated differently or being harassed because of his or her religion. The AJ determined that Complainant does neither. Rather, the AJ found, Complainant is asserting that the Agency has taken action to ensure that all employees, Christian and non-Christian alike, are provided with a secularized work environment in which no religion is promoted over another. The AJ also found that Complainant did not allege that he or other potential class members were being subjected to anti-Christian language or conduct.
Furthermore, the AJ noted that Complainant's attempt to state a claim of discrimination by comparing Christians to non-religion-based classes such as Hispanics, African-Americans or women is "unavailing." The AJ determined that because Complainant did not claim that any other religious group received more favorable treatment that he seeks for Christian employees, he failed to state a claim of discrimination or harassment based on religion.
The Agency issued a final order adopting the AJ's dismissal decision. The instant appeal followed.
ANALYSIS AND FINDINGS
The purpose of class action complaints is to economically address claims "common to [a] class as a whole...runn[ing] on questions of law applicable in the same manner to each member of the class." EEOC regulations at 29 C.F.R. � 1614.204(d)(2) provide an EEOC AJ with the authority to dismiss a class complaint for any of the reasons provided in 29 C.F.R. � 1614.107(a). In this case, the AJ dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
A complaint shall be accepted from any "aggrieved" employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Upon review, we find that the class complaint was properly dismissed. The AJ correctly determined that Complainant and other potential class members have not alleged a personal loss or harm regarding a term, condition or privilege of their employment. See Warth v. Seldin, 422 U.S. 490, 499 (1975); Rodriguez v. Department of the Treasury, EEOC Appeal No. 01970736 (August 28, 1997); Puissegur v. United States Postal Service, EEOC Appeal No. 01996787 (July 7, 2000). There is no allegation that Complainant and other class members were treated less favorably than other religious groups. In addition, while employers are liable under Title VII of the Civil Rights Act of 1964 for failure to accommodate the religious practices or beliefs of their employees, Complainant has not alleged that he or other class members were denied requested accommodation for their religious beliefs or that they were exposed to any anti-Christian harassment. Essentially, Complainant is alleging the Agency provided all employees, Christian and non-Christian alike, with a secular work environment. Complainant pointed to the Agency celebrations of federally designated heritage months as evidence in support of his claim of discrimination against Christians. However, none of these examples are religion-based and do not amount to an allegation that the Agency is promoting a particular religious group, beliefs and/or holidays.
Accordingly, the Agency's final order implementing the AJ's dismissal of the instant class complaint for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 23, 2014
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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