0120122323
11-02-2012
Joy P. Cortez, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Joy P. Cortez,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120122323
Agency No. IRS-11-0504-F
DECISION
Complainant timely filed an appeal from the Agency's April 5, 2012, final decision 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. The Commission accepts the appeal 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 Agency properly found that Complainant failed to prove that the Agency subjected her to discrimination and harassment on the bases of religion, sex, and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Bilingual Tax Examiner in Wage and Investment at the Agency's Automated Underrerporter (AUR) Department in Fresno, California. Complainant began working at the Agency on June 21, 2010. Her position was on the "swing shift," which ran from 3:30 p.m. to 12:00 a.m.
On June 11, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), religion (Jewish), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. from June 2010 through July 2011, the Agency discriminated against her on the basis of religion when management failed to accommodate 18 requests for observance of Jewish holidays;
2. on June 10, 2010, Complainant was subjected to sexual harassment when a male co-worker made "filthy and vulgar" comments in the office; and
3. Complainant was subjected to disparate treatment and a hostile work environment based on religion, sex, and reprisal when:
a. since June 10, 2010, two of Complainant's co-workers have been allowed to harass and intimidate her without management's intervention;
b. on June 16, 2010, Complainant was pressured to decline a position because she would not work on the Sabbath;
c. on May 19, 2011, the manager told Complainant that she would receive a disciplinary action if she continued writing letters for help regarding being subjected to harassment and a hostile work environment;
d. on May 24, 2011, Complainant's manager denied her request to work the day shift; and
e. on June 1, 2011, Complainant's manager rated her as "not ready" for 3-5 years for the Submission Processing Management Program.
Claim 1: Religious Accommodation
Complainant asserted that, when she interviewed for the position, she informed hiring managers that her religious beliefs prohibited her from working on the Sabbath. She also asserted that the Department Manager, her second-level supervisor (S2), replied that the position was for the swing shift and not the day shift. By letter dated July 9, 2010, Complainant' representative informed the Agency that working on the Sabbath, a 24-hour period from sunset Friday to sunset Saturday, would violate Complainant's religious beliefs. He asked that Complainant be allowed to leave work each Friday before sunset and stated, "A day shift is highly recommended." The Agency changed Complainant's Friday tour to 9:30 a.m. to 6:00 p.m.
In a September 13, 2010, e-mail to the AUR Team Leader, Complainant's first-level supervisor (S1), Complainant asked to be placed on the "prime shift" list for three reasons: (1) a "hardship situation" involving her husband and children; (2) when she applied for the position, she thought she would be working daytime hours because the vacancy announcement for the position had stated that it involved morning work hours; and (3) working late on Thursdays and coming to work early on Fridays to accommodate her religious beliefs could pose an unsafe driving hazard. On October 19, 2010, S2 denied Complainant's hardship request because child care was not recognized as a hardship. In a November 9, 2010, e-mail to S1, Complainant noted that Daylight Savings Time was ending and that it was dark by 5:00 p.m., stated that her commute home took 45 minutes, and asked to leave work at 3:30 p.m. on Fridays. Beginning November 18, 2010, the Agency changed Complainant's tour to 2:30 p.m. to 11:00 p.m. on Thursdays and 7:30 a.m. to 4:00 p.m. on Fridays. On June 24, 2011, Complainant resumed a Friday tour of duty from 9:30 a.m. to 6:00 p.m.
Complainant asserted that the Agency denied 18 requests for religious accommodation. Although Complainant did not identify the dates on which she requested but was denied accommodation, she gave the EEO Investigator a list of 29 Jewish holidays between June 29, 2010, and December 28, 2011. The record establishes that, between September 8, 2010, and October 21, 2011, the Agency provided Complainant with sick or annual leave for all or part of 20 days coinciding with 11 Jewish holidays. In addition, the record contains copies of several approved requests for leave for religious purposes during 2011.
Claim 2: Sexual Harassment
Complainant asserted that the Lead Tax Examining Technician, a team leader (T1), used vulgar language and sexual innuendo on a regular basis. She also asserted that he used a vulgar Spanish word for testicles in a team meeting and that S1 was present during the meeting. On May 19, 2011, Complainant complained to a Department Manager (S3) about T1's comment at the meeting and told S3 that T1 sometimes made comments with a sexual connotation. In a May 20, 2011, memorandum to S1, S3, the Examination Operations Manager (S4), and the Department Manager/Mentor (S5), Complainant alleged that S3 told her to resolve the issue herself.
S3 told the EEO Investigator that he immediately informed S1 of Complainant's allegation and told S1 to meet with T1. S1 told the Investigator that Complainant did not appear upset during the team meeting and did not tell S1 that she was offended by T1's language. S1 stated that, after S3 told her about Complainant's allegation of sexual harassment, she verbally counseled T1 and issued a written counseling memorandum. In a May 25, 2011, memorandum to T1, S1 noted that a co-worker had expressed concerns about T1's remark, directed T1 to be careful of the words he used at work, and stated that further incidents could result in disciplinary action. There is no evidence, and Complainant does not allege, that T1 subsequently engaged in offensive behavior.
Claim 3: Disparate Treatment and Hostile Work Environment
Claim 3a
Complainant asserted that two co-workers, C1 and C2, harassed and intimidated her. She told the EEO Counselor that, on July 20, 2010, she complained to S1 that C1 had harassed her during training. A co-worker told the EEO Investigator that C1 was nasty and harassed many people, did not like Complainant, and commented that Complainant would not have a problem with work if she did not leave early on Fridays. C1 denied that she had ever ridiculed or made disparaging remarks about Complainant. S1 told the EEO Investigator that Complainant had complained in October 2010 that she had asked C1 a question during a training class and was offended by C1's response and tone. S1 stated that she spoke to C1 about the matter and verbally counseled her.
In a May 18, 2011, memorandum to S1, S3, S4, and S5, Complainant alleged that C2 was abusive and verbally harassing regarding a telephone call that Complainant received on May 17, 2011. She asserted that C2 defamed her character and called her a slothful employee. Complainant reiterated the allegations during her May 19, 2011, meeting with S3.
Subsequently, in a May 20, 2011, memorandum to S1, S3, S4, S5, and the EEO Counselor, Complainant alleged that C2 bullied Complainant by criticizing a question Complainant asked during a staff meeting on May 19, 2011. S1 stated, and C2 confirmed, that S1 verbally counseled C2 and issued a memorandum documenting the counseling. There is no evidence that C1 or C2 subsequently engaged in offensive behavior.
Claim 3b
Complainant alleged that management officials pressured her to decline a position because she could not work on the Sabbath. S2 stated that, after Complainant had accepted the position but before she started working, she told him that she could not work the swing shift and wanted to work the day shift. According to S2, he told Complainant that the position was on the swing shift and that Complainant could decline the offer if she could not work that shift.
Claim 3c
In her May 20, 2011 memorandum, Complainant alleged that, when she met with S1 on May 19 to discuss the alleged harassment, S1 was upset that Complainant had contacted two managers, and threatened to discipline Complainant. Complainant noted that she met with S3 on May 18, 2011, and asserted that he expressed concern that Complainant had contacted S4 but stated that he would take care of the problem involving C2.
S1 denied that she threatened to discipline Complainant. She stated that she told Complainant that she had not been given a chance to address Complainant's allegation and that Complainant had not followed the chain of command. According to S3's notes of his May 19, 2011, meeting with Complainant, he asked Complainant why she had sent her e-mail to other management officials when he and S1 could have handled the matter at their level.
Claim 3d
Complainant alleged that the Agency denied her request to work the day shift, but she did not address the matter in her statement to the EEO Investigator. S1 stated that Complainant made several requests to work the day shift and that S1 explained the collective bargaining agreement's procedures for shift changes. Under the collective bargaining agreement, employees must serve on their present shifts for at least one full year before changing shifts. S2 stated that the Agency granted Complainant's request to move to the day shift in July 2011.
Claim 3e
In a June 11, 2011, Evaluation of Management Potential, S1 rated Complainant as "Ready in 3-5 years." S1 stated that she rated Complainant not ready for the Management Program because Complainant did not have the required skills as a Tax Examiner. She also stated that she advised Complainant to develop her skills, volunteer to become a back-up lead, and volunteer for assignments.
Final Agency Decision
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC 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 her to discrimination as alleged.
With respect to Claim (1), the Agency found that Complainant had not established a prima facie case of discrimination because the Agency had granted Complainant's requests for leave to observe religious holy days. With respect to Claim (2), the Agency found that Complainant failed to establish that T1's comment was so severe or pervasive that it created a hostile work environment.
The Agency further found that Complainant had not shown that the incidents in Claim (3) created a hostile work environment. Although a co-worker stated that C1 had commented about Complainant's early departures on Fridays, the Agency concluded that there was no evidence that the comment unreasonably interfered with Complainant's work. Further, noting that managers counseled C1 and C2 about their behavior after Complainant complained about them, the Agency concluded that Complainant had not shown that the offensive conduct continued. In addition, the Agency found that Complainant failed to establish that the incidents in Claim (3) were motivated by considerations of Complainant's religion, sex, or prior EEO activity. Accordingly, the Agency concluded that it had not discriminated against Complainant.
CONTENTIONS ON APPEAL
The parties raise no new arguments on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 28 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 (EEO MD-110), at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "required that the Commission examine the record without regard to the factual and legal determination 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").
ANALYSIS AND FINDINGS
Claim 1: Religious Accommodation
Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. � 2000e(j); 29 C.F.R. � 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires Complainant to demonstrate that: (1) she has a bona fide religious belief, the practice of which conflicted with her employment; (2) she informed the Agency of this belief and conflict; and (3) the Agency nevertheless enforced its requirement against Complainant. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).
Once Complainant establishes a prima facie case, the Agency must show that it made a good faith effort to reasonably accommodate Complainant's religious beliefs and, if such proof fails, the Agency must show that the alternative means of accommodation proffered by Complainant could not be granted without imposing an undue hardship on the Agency's operations. See Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corp., 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989). Pursuant to 29 C.F.R. � 1605.2(a)-(e), the Commission's "Guidelines on Discrimination Because of Religion," alternatives for accommodating an employee's religious practices include, but are not limited to, voluntary substitutes and swaps, flexible scheduling, and lateral transfers and job changes. Undue hardship does not become a defense until the employer claims it as a defense to its duty to accommodate. Ansonia Bd. of Ed. v. Philbrook, 479 U.S. 60, 68-69 (1986). To show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).
Complainant has shown that she had a bona fide religious belief whose practice conflicted with work requirements and that she notified the Agency of the belief and conflict, but she has not shown that the Agency continued to enforce the work requirements. On the contrary, the evidence establishes that the Agency accommodated Complainant's religious beliefs by allowing her to leave work before sundown on Fridays and by granting her requests for leave on religious holidays. Although Complainant asserted that the Agency failed to accommodate 18 requests for observance of religious holidays, she did not identify any specific dates for which she requested but was denied accommodation. Her submission of a list of holidays is insufficient to establish that the Agency denied a specific request. We note, for example, that the list stated that one holiday occurred from sunset of June 7 through nightfall of June 9, 2011. The record establishes that the Agency approved Complainant's request for 12 hours of leave from 3:30 p.m. June 7 through 12:00 a.m. June 8, 2011. Complainant has not alleged that she requested but was denied leave for June 9, 2011. In the absence of evidence that the Agency denied a request for leave for religious purposes on a specific date, we find that Complainant has failed to establish a prima facie case of discrimination.
Claim 2: Sexual Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [the complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. 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." Id. at 23.
To establish a claim of harassment, a complainant must show that: (1) he or she is a member of a statutorily protected class; (2) he or she 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 a statutorily protected class; (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; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris).
With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Where the harassment does not result in a tangible employment action, an agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id. An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep't Of Air Force, EEOC Request No. 05920194 (July 8, 1992).
In this case, Complainant asserted that T1 used vulgar language and sexual innuendo on a regular basis and made a vulgar comment during a team meeting. Complainant has not shown that T1's conduct was so severe or pervasive that it created a hostile or abusive work environment. Moreover, after Complainant complained about T1's conduct, the Agency took immediate corrective action. There is no evidence that T1's conduct continued after S1 verbally counseled T1 and issued the written counseling memorandum. Accordingly, we find that Complainant has not established her claim of sexual harassment.
Claim 3: Disparate Treatment and Hostile Work Environment
Disparate Treatment
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
We assume for purposes of analysis, without so finding, that Complainant has established prima facie cases of discrimination based on religion, sex, and reprisal. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions and that Complainant has not shown those reasons to be pretextual.
For example, S1 stated that she rated Complainant "Ready in 3-5 years" on the Evaluation of Management Potential because Complainant did not have the required skills. Complainant has offered no evidence that S1's statement is unworthy of credence or that considerations of religion, sex, or reprisal motivated the rating. Complainant likewise has offered no evidence to dispute S1's statement that employees must work on their present shifts for one year before changing shifts. Further, Complainant has not shown that S1 in fact threatened to discipline her in May 2011 or that the alleged threat was based on Complainant's protected classes. Similarly, Complainant has not shown that Agency officials in fact pressured her to decline the position because she could not work on the Sabbath. S2 offered a position on the swing shift to Complainant, Complainant accepted the offer, she subsequently asked to work the day shift, and S2 reiterated that the position was on the swing shift and told Complainant that she could decline the offer if she could not work that shift. There is no evidence that an individual not of Complainant's protected group asked for and received placement on the day shift after being offered a position on the swing shift.
The only evidence that any action at issue in Claim (3) was related to Complainant's protected classes is a co-worker's statement that C1 criticized Complainant for leaving work early on Fridays. Although this statement may be evidence that C1 harbored retaliatory animus against Complainant, there is no evidence that C1's criticism influenced Agency officials or that the Agency took an adverse action against Complainant because of her request for religious accommodation or her other EEO activity. The record establishes that the Agency granted Complainant's requests to leave early on Fridays. Further, as discussed below, C1's criticism did not rise to the level of harassment.
Hostile Work Environment
As noted above, with the exception of C1's comment, Complainant has not shown that the actions about which she complains were based on her protected classes. C1's mere offensive utterance conduct was not sufficiently severe to constitute harassment, and Complainant has not shown that C1's conduct as a whole was so severe or pervasive that it created a hostile work environment. Similarly, Complainant has not shown that C1's conduct continued after S1 counseled C1. Further, even assuming that all of the incidents at issue in this complaint occurred as described by Complainant, we find that she has failed to show that the incidents were severe or pervasive enough to establish a hostile work environment. Accordingly we find that Complainant has not demonstrated that the Agency discriminated against her on the basis of religion, sex, or reprisal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision and its finding of no discrimination.
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 (Nov. 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
November 2, 2012
Date
2
0120122323
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122323