The Warden moved her workplace into a closet that measured 80 inches by 41 inches. In this EEOC claim of multiple discrimination’s, only the reprisal was accepted by the agency.
Federal employees are entitled to religious expression, as long as their is no undue hardship by the agency.
Marilyn Juhl v. Department of Justice
01983150
9/28/01
Marilyn Juhl,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01983150
Agency No. P-93-8256 et al.
Hearing No. 260-94-9020X et al.
DECISION
DECISION
Complainant timely initiated an appeal from the agency’s final decision concerning her equal employment opportunity (EEO) complaint of unlawful employment discrimination on the bases of religion (Born Again Believer), sex (female), and reprisal (prior EEO activity), in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. § 1614.405. For the following reasons, the Commission REVERSES in part, and AFFIRMS in part, the agency’s final decision.
ISSUE PRESENTED
Whether complainant was discriminated against on the basis of her religious beliefs and retaliated against for her activities as an EEO Counselor when she was told to remove religious articles from her office; Whether complainant was discriminated against on the basis of her sex and retaliated against for her activities as an EEO Counselor from June to August 1992, when she was subjected to various forms of alleged harassment; and Whether complainant was discriminated against on the basis of her religion and retaliated against for contacting an EEO Counselor when she was subjected to various forms of alleged harassment including the following:
(a) her supervisor collected a file of complainant’s paperwork and used it to make negative entries on her performance log;
(b) complainant was moved from her office to another which was previously used as a closet;
(c) complainant was advised not to make or receive personal phone calls on official time.
PROCEDURAL BACKGROUND
Believing she was a victim of discrimination, complainant sought EEO counseling and subsequently filed formal complaints on August 14, 1992, March 12, 1993, and March 30, 1993. On October 17, 1993, complainant requested that her complaints be consolidated for a hearing before an EEOC Administrative Judge (AJ). After a hearing, the AJ found that complainant was discriminated against only on the basis of reprisal when her duties as EEO Counselor were removed. The AJ found, however, that complainant failed to prove she was discriminated against on the remaining issues.
On June 20, 1994, the agency issued a final decision rejecting the AJ’s finding of discrimination, but accepting the AJ’s remaining conclusions. Complainant appealed the agency’s final decision.
See Juhl v. Department of Justice, EEOC Appeal No. 01944685 (April 25, 1996).
Failure to accommodate religious beliefs
In our prior decision, we found the AJ mistakenly addressed complainant’s first complaint as a disparate treatment claim. Rather, we found complainant alleged that the agency failed to accommodate her religious beliefs when it ordered her to remove certain religious articles from her office. Addressing her religious accommodation claim, we found complainant established a prima facie case of failure to accommodate, since the agency’s removal of complainant’s religious items indicated the agency was aware there was a conflict between complainant’s religious practice and the job requirements of the position. However, we also found there was insufficient evidence in the record to determine whether the agency satisfied its burden of establishing undue hardship. As such, we remanded the complaint to the agency for a supplemental investigation into whether it would be an undue hardship on the agency to permit complainant to have religious articles in her office. The agency was ordered to investigate whether complainant was using religion when she was counseling inmates, and if so, whether allowing complainant to engage in this practice would be an undue hardship on the agency. The prior decision reserved ruling on the remaining issues in the complaints until the agency completed its supplemental investigation into the undue hardship question.<1>
On January 20, 1998, the agency issued a second final decision (FAD #2) finding no discrimination. The agency’s second final decision, as well as complainant’s contentions on appeal, will be discussed below.
FACTUAL BACKGROUND
The record reveals that during the relevant time, complainant was employed as a Correctional Counselor at the agency’s Federal Correctional Institute, Sandstone, Minnesota facility. As a Correctional Counselor, complainant advises inmates about disciplinary matters within the facility and family matters. As a collateral duty, complainant performed the EEO Counselor duties. While working as an EEO Counselor, complainant counseled at least three employees who brought successful EEO complaints against the agency. Although the record reveals that complainant received awards for her EEO Counselor duties, both complainant’s former and current supervisors testified that complainant often failed to notify them when she left her office to perform EEO Counselor duties. The record reveals that sometime prior to July 14, 1992, the Warden (Baptist), received a complaint from an inmate regarding the number of religious articles in complainant’s office. The inmate also reported that other inmates had also complained to him about the religious paraphernalia in the office, and stated that complainant spoke to the inmates as though she was trying to convert them.
Complainant’s job description did not provide for religious instruction or religious counseling. Therefore, the Warden instructed the complainant’s supervisor (Roman Catholic) to look into the situation, and if the complaints were substantiated, to “tone down” the number of religious articles. On July 14, 1992, the supervisor instructed complainant to remove four pieces of religious items from her office: two Bibles, and two religious pamphlets. At the same time, the supervisor requested that the Unit Secretary also remove her Bible from the office.
The Warden testified that he did not intend for complainant to remove all religious items, but to “tone down” the number of religious items, in order to keep her office in line with a professional atmosphere. The Warden testified that complainant was permitted to keep one Bible in her desk, and disputed complainant’s contention that all items were removed. Rather, he testified that complainant was permitted to keep a picture of Christ that had been painted by an inmate on her wall.
On the same day (July 14, 1992), complainant’s supervisor gave complainant an unsatisfactory performance log entry and Performance Improvement Plan (PIP) letter.<2> After an argument ensued between complainant and the supervisor, complainant drove to the hospital and experienced an anxiety attack. She filled out a Worker’s Compensation claim and contacted an EEO Counselor.
In her complaint, complainant also claimed she was subjected to a hostile work environment when a union official was questioned about the existence of a personal relationship between himself and complainant. Specifically, the union officer testified that the Associate Warden asked him if he had “something going on” with complainant, and implied they were having an affair. The Warden also asked the union official about a rumor that he and complainant were involved. In her decision, the AJ found the Warden’s testimony credible when he stated that he did not ask the union official the question in order to harass complainant, nor did he believe the union official would repeat the statement to complainant. On July 16, 1992, the Warden directed the Human Resources Manager to contact the Equal Employment Opportunity Officer to request that complainant be relieved of her EEO Counselor duties. Thereafter, the EEO Officer contacted complainant and asked that she suspend her EEO duties pending the outcome of her situation. Complainant agreed.
On August 12, 1992, complainant was notified that her workstation would be changed. In her PIP, the Warden recommended that complainant’s workstation be changed so that complainant would be closer to her supervisor. Complaint was therefore moved to an area which had previously been a closet and measured 80 inches by 41 inches. In July 1993, the area was renovated. The instant complaints followed.
ANALYSIS AND FINDINGS
Complainant’s First Complaint
Issue 1: Whether complainant was discriminated against on the basis of her religious beliefs and retaliated against for her activities as an EEO Counselor when she was told to remove religious articles from her office.
The prior decision correctly determined that the pertinent inquiry in the instant case was whether the agency failed to accommodate complainant’s religious beliefs when it instructed her to remove certain religious articles from her office. As we have already stated, complainant has established a prima facie case of failure to accommodate. The burden now shifts to the agency to demonstrate that it cannot reasonably accommodate appellant’s religious beliefs without incurring an undue hardship upon its operations. 42 U.S.C. § 2000e(j); 29 C.F.R. § 1605.2(c)(1); Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987); Alvarea v. United States Postal Service, EEOC Appeal No. 01921341 (June 4, 1993).
What is an “undue hardship”?
Undue hardship has been construed as anything more than a de minimis cost to the employer. Trans World Airlines Inc. v. Hardison, 432 U.S. 63, 84 (1977).
We also note that any undue hardship asserted must be “real” rather than “speculative.” Cook v. Chrysler Corp., 981 F.2d 336, 339 (8th Cir. 1992), cert. denied, 508 U.S. 973, 113 S.Ct. 2963, 125 L.Ed.2d 663 (1993). Undue hardship requires more than proof of some fellow-worker’s grumbling…An employer…would have to show…actual imposition on co-workers or disruption of the work routine. Brown v. Polk County, 61 F.3d 650, 655 (1995)(quoting Burns v. Southern Pacific Transportation Co., 589 F.2d 403, 407 (9th Cir. 1978), cert. denied, 439 U.S. 1072, 99 S.Ct 843 (1979).
The instant dispute regarding complainant’s religious articles stemmed from a complaint made by an inmate to the Warden. The complaint appears to have cited complainant’s religious articles and attempts at conversion or religious counseling during counseling sessions. The Warden was advised that this inmate had received complaints from other inmates as well. In response to the complaint, the Warden instructed complainant’s supervisor to have complainant “tone down” the number of religious articles so as to have a professional appearance and not appear to interfere with her duties. The supervisor, in turn, instructed complainant to remove the items.
The agency noted in its final decision, however, the dispute in the witnesses’ recollections regarding how many religious articles were in complainant’s office, and how many were removed. As far as can be determined, we find complainant had in her office four or five Bibles, a few religious pamphlets, a picture of Christ, and a statute of the Madonna. It appears all but the picture of Christ and one Bible were removed.
The prior decision noted that it will generally be difficult for an employer to establish that permitting an employee to keep a Bible on his or her desk, or other expression of his or her religious beliefs in a private work station, would create an undue hardship. See Brown v. Polk County, 61 F.3d 650 (1995). However, where an employee counsels clients, a religious display may be perceived as agency endorsement of a particular religion. See Spratt v. County of Kent, 621 F.Supp. 594, 600 (W.D. Michigan), aff’d without opinion, 810 F.2d 203 (6th Cir. 1986), cert denied, 480 U.S. 934 (1987) (sheriff had limited flexibility with regard to accommodation of a social worker’s religion, where social worker used religion in psychological counseling of jail inmates, because of sheriff’s obligation under the establishment claim to maintain neutrality in religious matters). The prior decision found, however, that the agency did not provide sufficient information as to whether complainant was in fact engaging in religious counseling of inmates, and thus, whether the agency could accommodate complainant’s religious beliefs while maintaining neutrality pursuant to the establishment clause.
No Substantial Evidence and No Witnesses
After a review of the supplemental investigation, we find the evidence does not support the notion that complainant was engaging in religious counseling or proselytizing of inmates. The Warden was the only individual who reported receiving a complaint from inmates. However, he did not supply any names or other identifying information of the inmates who purportedly complained about alleged religious counseling, proselytizing or conversion attempts. More significantly, although the Warden was the individual who received the complaint from the inmate, there is no evidence that he instructed complainant to stop counseling.
Rather, he only instructed the supervisor to have complainant “tone down” her office. The supervisor corroborated this testimony when she averred that the Warden advised her to remove the items. We find that had the Warden received complaints about religious counseling or proselytizing of inmates, he most certainly would have instructed the supervisor to speak with complainant about it, and advise her to discontinue the practice.
The evidence reveals that neither the Warden, the Associate Warden, nor the supervisor testified that they ever saw complainant engage in any religious counseling.<3>
Complainant’s supervisor testified that she never received complaints from inmates regarding complainant’s counseling techniques. Furthermore, complainant was never issued discipline for religious counseling of inmates. In light of the lack of persuasive evidence that would prove complainant engaged in religious counseling or proselytizing, we do not agree that complainant’s workstation, in and of itself, symbolized the agency’s endorsement of her religion.<4>
We now turn our analysis to whether it would otherwise be an undue hardship on the agency for it to allow complainant to keep religious articles in her office. Primarily, the agency argued in its second final decision that complainant’s position as a Correctional Counselor required her to hold herself out as an individual who would address inmates’ concerns in an impartial manner. Thus, the agency found allowing complainant to keep the religious articles in her office would, “give [inmates] the impression of being so committed to a particular religion that [complainant was] incapable of responding fully to the counseling concerns of an inmate who adheres to a different religion.” The agency noted that complainant worked in an institutional setting where concerns about inmate perception are paramount. Therefore, to permit complainant to have her religious articles, would “require [management officials] to set aside their concerns about inmates reactions.”
Essentially, the agency determined it would be an undue hardship to allow complainant to have all of her religious articles because inmates would perceive her as biased, and not concerned about inmates who held other religious beliefs. In support of this position, the agency cited the Warden’s testimony that inmates had complained. The agency also cited the supervisor’s testimony wherein she stated that inmates felt uncomfortable about the religious articles.
Violent inmates are unpredictable and unsafe to be left alone with.
The Warden went so far as to testify he was concerned for complainant’s safety; that if she was confronted with an inmate who was so offended he might assault complainant. In sum, the agency found its directive to “tone down” complainant’s office was reasonable, and to permit her to keep her office as it was would cause an undue hardship on the agency.
As an initial note, we are sympathetic with the agency’s position regarding the need to acknowledge and be sensitive to the various religious beliefs held by the inmates, and are mindful of the fine line the agency must tread between balancing the rights of the inmates versus the rights of its employees. With those principles in mind, however, we find the agency failed to carry its burden of proof of proving undue hardship. In so finding, we note that management officials failed to cite with any specificity whatsoever the nature or frequency of the complaints it purportedly received in response to complainant’s work station. Not one individual is cited, nor was there any documentation generated from these purported complaints. Although the agency was rightfully concerned about the possible bias or effect on complainant’s counseling, it failed to introduce any evidence that complainant’s counseling was actually impacted by the religious items in her office. See Brown v. Polk County, 61 F.3d 650, 657 (1995)(employer’s concern that religious beliefs may have a possible effect on personnel decisions insufficient to carry employer’s burden). Therefore, based on the record before us, we find the agency failed to satisfy its burden of proving that permitting complainant to have her religious articles in her office constituted an undue hardship. The agency conceded that the record did not contain specific evidence as to the actual impact the religious articles had on complainant’s job.
It argued, however, that this lack of specificity did not detract from its argument that allowing complainant to keep the articles would cause an undue hardship. The agency maintained that: To insist that the concerns of [agency officials] would only be probative if specific inmate names were provided would be to ignore the value of the professional judgement by [the warden] and others (apart from the inmates’ complaints) that, given their knowledge of dynamics within the institution, the full religious display in complainant’s work area was very inappropriate and of serious concern.
The agency cited Toledo v. Nobel-Sysco Inc., 892 F.2d 1481 (1989), for the proposition that in certain cases the employer need not wait to obtain evidence showing the unworkability of a practice before claiming undue hardship, and instead, it could rely on the employer’s knowledge of the workplace. The agency argues that its directive for complainant to “tone down” her religious display was an accommodation for her religious practice, and that the agency was not required to provide “highly specific information” of the complaints given management’s “significant experience working in institutional settings, and the reasonable concern of [agency] officials.”
We disagree with the agency’s interpretation of the case. The case refers to very rare situations where there need not be evidence of attempts at reasonable accommodation because the nature of the job reveals that any accommodation would not be practical. The case does not refer to situations, as the agency maintains, where the employer need not have evidence of an undue hardship and can solely rely on the workplace conditions. The employer must still prove undue hardship. In fact, the case held that an employer who has made no effort at accommodating religious practices before taking action against an employee can only prevail if it shows that no accommodations could be made without undue hardship. Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1489 (1989).
The agency has not made any such showing in this case. The agency maintains that its attempts at accommodating complainant’s religious beliefs were in compliance with the President’s Guidelines on Religious Exercise and Religious Expression in the Federal Workplace, 2 Empl. Prac. Guide (CCH) ¶ 3903-10 (August 14, 1997).
As support, the agency cited a paragraph which stands for the proposition that federal employees are entitled to religious expression, “so long as it does not interfere with the agency’s carrying out of its official responsibilities.”
The agency failed, however, to cite the portion of the Guidelines which expressly states: Employees [who have work areas accessible to the public] may also display religious art and literature in their personal work areas to the same extent that they may display other art and literature so long as the viewing public would reasonably understand the religious expression to be that of the employee acting in her personal capacity, and not of the government itself. Id. at ¶ 3903-12.
As discussed above, in light of the agency’s failure to show complainant engaged in proselytizing or was otherwise inappropriately counseling inmates, the agency failed to present sufficient evidence which would prove that complainant’s workstation or work practices expressed the agency’s endorsement of her religion. Likewise, there has been no showing that complainant’s religious articles interfered with the effective operation of the office. Rather, the agency appears to have removed the articles solely based on an inmate’s complaint. We do not doubt that the management officials involved herein are concerned about the well being of the inmates they supervise. However, this concern does not replace the agency’s obligations pursuant to Title VII. The agency’s attempt to accommodate complainant’s religious beliefs was not workable and unreasonable. Specifically, a directive to “tone down” her religious display is vague and places subjective, view-point decision making power into management’s hands.
We therefore find that based on the record before us, the agency failed to bear its burden of establishing an undue hardship. Specifically, the agency failed to satisfy its burden of establishing that permitting complainant to have her religious articles caused a real, as opposed to a hypothetical, lack of neutrality in her counseling, such that it constituted an undue hardship. In so finding, we note that our decision is limited to the facts of this particular case. We could envision a situation where an agency would be able to prove that the number of religious articles in one’s public office space could constitute the agency’s endorsement of a particular religion or otherwise render an undue hardship on the agency.
The agency’s record before us however, did not prove such undue hardship. Accordingly, we find the agency discriminated against complainant when it did not accommodate her religious practices. The agency is directed to comply with the ORDER below.
Complainant’s Remaining Complaints
As mentioned above, the prior decision did not address complainant’s
other complaints in light of the remand for the undue hardship issue.
We now turn our analysis to the remaining issues in complainant’s three
complaints.
Issue 2: Whether complainant was discriminated against on the basis of
her sex and retaliated against for her activities as an EEO Counselor
from June to August 1992, when she was subjected to various forms of
alleged harassment, including: (a) a hostile work environment due to
statements made by the Warden to a union official; and (b) the removal
of EEO Counselor duties.
Issue 3: Whether complaint was discriminated against on the basis of
her religion and retaliated against for contacting an EEO counselor
when she was subjected to various forms of alleged harassment including
the following: (a) her supervisor collected a file of complainant’s
paperwork and used it to make negative entries on her performance log;
(b) complainant was moved from her office to another which was previously
used as a closet; and (c) complainant was advised not to make or receive
personal phone calls on official time.
After a hearing on her consolidated complaints, the AJ issued a
Recommended Decision. In her decision, the AJ concluded that complainant
was not retaliated against for her activities as an EEO counselor
when she was told to remove religious articles from her office because
complainant presented no evidence of similarly-situated employees outside
her protected group who were treated more favorably. The AJ further found
that complainant was not discriminated against on the basis of her sex
nor retaliated against for her activities as an EEO counselor from June
until August 1992, because she failed to identify any similarly-situated
employees who were not members of her protected class whom the agency
treated more favorably. As for the statements to the union president,
the AJ found that complainant failed to demonstrate the existence of a
“hostile work environment” because she did not show that the Warden’s
actions were sufficiently severe or pervasive and directed at her because
of her sex. Finally, the AJ found that complainant was not discriminated
against on the basis of her religion nor retaliated against for filing
a prior discrimination complaint when she was subjected to various forms
of alleged discrimination (Issue 3).
The AJ did find that the agency’s policy of suspending counselors from
the performance of counseling duties pending the outcome of their own
EEO complaint was discriminatory. As relief, the AJ recommended that
the agency immediately cease this policy, and grant complainant EEO
Counseling duties, and award her attorney fees. The AJ recommended,
without elaboration, that complainant not be awarded compensatory damages.
In its first final decision (FAD #1), the agency agreed with the
AJ’s findings of no discrimination with respect to issues 2 and 3.
It rejected, however, the AJ’s finding that complainant’s temporary
removal from her EEO Counselor duties was not due to her EEO activity.
Rather, the agency determined that complainant’s duties as an EEO
Counselor were suspended due to her admittedly troubled relationship
with her supervisor. Specifically, the agency maintained that on July
14, 1992, complainant and her supervisor engaged in a heated argument,
which caused the Warden to “reasonably question complainant’s objectivity
and impartiality.” The agency argued that a lack of neutrality may be
a sufficient reason to remove an EEO Counselor from her position.
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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 that
discriminatory intent did not exist is a factual finding which will
be upheld if supported by substantial evidence. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the AJ’s recommended decision summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We therefore discern no basis to disturb the AJ’s finding that complainant was discriminated against on the basis of reprisal when the agency suspended her EEO Counselor duties pending the outcome of her own complaint. Although the agency argued that complainant’s EEO Counselor duties were removed due to a potential lack of objectivity related to her turbulent relationship with her supervisor, we agree with the AJ that the record reveals otherwise.
We concur with the AJ’s findings that complainant’s EEO Counselor duties were removed in direct response to complainant’s threat to file a lawsuit.
CONCLUSION
Therefore, after a careful review of the record, including complainant’s arguments on appeal, and evidence not discussed in this decision, the Commission REVERSES the agency’s final decision which found it did not discriminate against complainant on the basis of religion when it instructed her to remove religious items.
The Commission REVERSES the agency’s final decision which found complainant was not discriminated against on the basis of reprisal when the agency suspended her EEO Counselor duties pending the outcome of her own complaint.
The issue of attorney’s fees and costs are REMANDED to the Hearings Unit of the Milwaukee District Office in accordance with this decision and the ORDER below..
The agency’s’s final decision with respect to the remaining issues is AFFIRMED.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall provide complainant with a reasonable accommodation of her religious beliefs.
2. The agency shall cease its policy of suspending counselors from the performance of EEO counseling duties pending the outcome of their own EEO complaint.
3.1 The agency shall immediately reinstate complainant’s EEO Counselor duties.
3.2 The agency shall immediately update any documentation reflecting the reinstatement of complainant’s EEO Counselor duties during the period for which they were removed.
3.3. The agency is directed to conduct training for the complainant’s supervisor and the Warden who was found to have discriminated against complainant by prohibiting her from having religious articles in her workstation, and for removing her EEO Counselor duties. The agency shall address these employees’ responsibilities with respect to eliminating discrimination in the workplace and all other supervisory and managerial responsibilities under equal employment opportunity law.
The issues of compensatory damages, attorney’s fees, and costs are REMANDED to the Hearings Unit of the Milwaukee District Office. Thereafter, the Administrative Judge shall issue a decision on these issues in accordance with 29 C.F.R. § 1614.109, and the agency shall issue a final action in accordance with 29 C.F.R. § 1614.110 within forty (40) days of receipt of the Administrative Judge’s decision. The agency shall submit copies of the Administrative Judge’s decision and the final agency action to the Compliance Officer at the address set forth below. The agency shall post a notice in accordance with the paragraph below.
The agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include supporting documentation of the agency’s calculation of back pay and other benefits due complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Federal Correctional Institute, Sandstone, Minnesota facility copies of the attached notice. Copies
of the notice, after being signed by the agency’s duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled “Implementation of the Commission’s Decision,”
within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0501)
Compliance with the Commission’s corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency’s report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission’s
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. § 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
“Right to File A Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
9/28/01
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistant
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person’s RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions,
or privileges of employment.
The Federal Correctional Institute, Sandstone, Minnesota, Federal Bureau
of Prisons, U.S. Department of Justice, (hereinafter referred to as
“facility”) supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility has been found to have discriminated on the basis of
religion when it denied an employee an accommodation to her religious
practices, by removing certain religious articles from her office.
The facility was also found to have discriminated against the individual
when it removed her assigned EEO Counselor duties when she filed an
EEO Complaint. The facility was ordered to provide complainant with
a religious accommodation. The agency was also ordered to cease its
policy of suspending EEO Counselors from the performance of their EEO
Counseling duties pending the outcome of their complaints, restore
complainant’s EEO Counseling duties, and update any documentation
reflecting the reinstatement of her duties during the time they
were removed. The facility was ordered to conduct training for the
responsible management officials, and post this notice. The facility
was also ordered to pay complainant’s reasonable attorney’s fees and
proven compensatory damages.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 16141While the agency was in the process of completing the
supplemental investigation, complainant filed a Petition for Enforcement
(04970026). In light of the agency’s completion of the supplemental
investigation, we have closed the Petition for Enforcement. We note
however, that complainant’s arguments in her petition were considered
herein.
2The unsatisfactory performance log entry was the subject of a grievance,
and therefore, is not at issue here.
3There was testimony from complainant’s prior supervisor that revealed
complainant did spend time in the Chapel, where she was seen praying or
counseling with inmates and co-workers. Complainant was instructed not
to spend excessive time in the Chapel by her prior supervisor and not to
pray with inmates. The record also reveals, however, that complainant
was required to be in the Chapel as part of rotation duties, and spent
time in the Chapel during off-duty times. The agency did not provide
sufficient evidence that persuasively revealed whether complainant was
seen in the Chapel on her own time with voluntary participants, or not.
4We note that our decision in this case might have been different had
the evidence revealed complainant engaged in religious counseling or
proselytizing of inmates and had been instructed not to do so. See e.g.,
Eric High v. Department of Defense, EEOC Appeal No. 03960036 (April 18,
1996)(removal of teacher who lectured about Christian and moral values
after he was instructed not to did not violate Title VII); Spratt
v. County of Kent, 621 F.Supp. 594 (1985)(discharge of social worker
for his inclusion of religious practices in counseling of inmates did
not constitute unlawful religious discrimination); Baz v. Walters, 599
F.Supp. 614 (D.C.Ill. 1984)(discharge of government chaplain appropriate
when chaplain continued to evangelize and proselytize against orders).
