Brad E. Sturman v. DOT (FAA)
0120072361
September 21, 2007

Brad E. Sturman
v.
Mary E. Peters,
Department of Transportation, (FAA), Agency

On April 17, 2007, complainant filed an appeal from the April 11, 2007 final agency decision (FAD) concerning his 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 appeal is deemed timely and is accepted pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision. 

The issue presented is whether the complainant was subjected to a hostile work environment based on his religion. 

At the time of events giving rise to this complaint, complainant worked as an Air Traffic Control Specialist, FG-2152-11, at the agency's Dulles Tower, Washington Dulles International Airport facility in Sterling, Virginia. 

On February 10, 2006, complainant filed an EEO complaint alleging that he was discriminated against on the basis of religion (Jewish) when, in December 2005, the facility manager (S1) placed religious literature in the main office, allowed her staff to hang Christmas decorations during business hours but did not hang Chanukah decorations, and downloaded Christmas songs to her computer during business hours. Complainant submitted pictures of a workplace with religious pamphlets laid on tables next to magazines (the pamphlets were entitled Our Daily Bread), a Christmas tree, a Christmas wreath, garland, lights, and other Christmas holiday decorations. 

At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a FAD. The agency first issued a decision on September 22, 2006, in which it dismissed complainant's complaint for failure to state a claim under 29 C.F.R. J 1614.107(a)(l). Complainant appealed that decision to the Commission in EEOC Appeal No. 0120070036 (March 9, 2007). The Commission issued a decision in which it found that the agency improperly dismissed the complaint, and remanded it to the agency for an investigation and a new final agency decision. As the agency had already conducted an investigation, it issued a new FAD on April 11, 2007. The agency found that complainant had failed to make out a prima facie case of religious harassment and it concluded that complainant failed to prove that he was subjected to discrimination as alleged.¹

On appeal, complainant contends that S1, by placing several copies of the religious pamphlets around the Administrative Office, was promoting Christianity. He also contends that as Chanukah was on the same day as Christmas in 2005, there should have been Chanukah decorations in the office as well. The agency chose not to file a responsive brief in this matter. 

As this is an appeal from a decision issued without a hearing, pursuant to 29 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 EEOC Management Directive 110, Chapter 9, § VI.A. (November 9, 1999). (explaining that the de novo standard of review "requires that the Commission examine the record without regard to thee factual and legal determinations 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"). 

Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). 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. Harris v. Forklift Systems, 510 U.S. 17 (1993). 

Complainant alleges that he was subjected to a hostile work environment based upon his religion. To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) he is a member of a statutorily protected class; (2) he 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 the statutorily protected class; and (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. Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. § 1604.11. 

In the instant case, we find that complainant has shown that he meets the first prong of the prima facie case of harassment, in that he is a member of a statutorily protected class. He is claiming harassment based on religion, and notes that he is Jewish. Complainant also meets the second prong of the prima facie case in that he is alleging that the atmosphere to which he was subjected, the decorations for the Christmas holiday and the placement of religious pamphlets around the Administrative Office, was unwelcome. It matters not at this stage of the analysis that he had not made management aware of his discomfort with the decorations and pamphlets. Complainant claims that these displays of the religious pamphlets were offensive to him, as they promoted Christianity exclusively. He also claims that he was offended by the Christmas holiday decorations as the Jewish holiday of Chanukah also fell on December 25 in 2005 and there were no displays of Chanukah decorations accompanying the tree, lights, garland, etc. The third prong is satisfied in that the decorations are commonly associated with a Christian holiday, and the pamphlets were promoting the Christian faith. 

Complainant's case fails on the final criteria of the prima facie case, whether the atmosphere had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. In other words, was it severe or pervasive enough to create a hostile work environment. We find that it was not. With respect to the Christmas decorations, based on the pictures submitted by complainant, we note that the decorations were predominantly secular in nature -- a Christmas tree, wreath, icicle lights, garland and Santa Claus. The tree seems to have had a number of ornaments which featured an angel, but the overall display was not religious. There was not a nativity scene, nor was there any other decoration which was religious in nature. Although Christmas trees are commonly associated with the Christian holiday of Christmas, we note that it has become a prevalent practice for many people and businesses to decorate evergreen trees, and feature lights and garland, as an expression of "the winter holiday spirit" in a very secular sense. 

With respect to the religious pamphlets, we find that their mere presence is not enough to establish a severe or pervasive hostile work environment based on complainant's religion. We note that complainant did not primarily work in the Administrative Office at the facility as he performed his duties in the Air Traffic Control Tower. He occasionally had cause to visit the Administrative Office when he was going to the union office "in the administrative area" where he would perform his duties as the treasurer for the local union. However, he did not spend the, majority of his work time in the Administrative Office and so was not exposed to the Christian materials or Christmas decorations for the entire duration of his work day. 

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the agency's conclusion, that complainant was not subjected to a hostile work environment based on his religion, was correct and we affirm the decision of the agency.