Hostile Work Environment Claim Rejected
Tokur, a mail handler, alleged that she was discriminated on the bases of race (Indo-European), national origin (Oruz Turkish), sex (female), religion (Islam), and reprisal for prior EEO activity because she was subjected to a hostile work environment, denied a religious accommodation, and was denied official time to work on her EEO complaint. As bases for the hostile work environment, the complainant indicated that her supervisor told her that her hijab was not safe, and to go home and change her clothes and to wear her hair in a ponytail. However, it was also revealed that her supervisor recanted on his requests and allowed her to wear her hijab without conditions. Tokur further alleged that she was subjected to unduly hostile and intimidating behavior in her work performance compared to similarly-situated co-workers, including being paired with a co-worker who had threatened her in the past. She also indicated that her hot water pot was confiscated by her supervisor in the break room, and also had garbage and unknown liquids put in it. Lastly, she stated that she was required to bring in medical documentation whenever she was took any amount of leave, in contrast to her co-workers who did not have to provide such documentation. In addition to hostile work environment, the complainant alleged that she was denied a religious accommodation with respect to the wearing of her hijab, and that she was denied official time to work on her complaint.
After the EEO investigation, Tokur declined to request a hearing, and so the agency issued a Final Agency Decision ("FAD"). In its FAD, the agency found that the complainant failed to show that the conduct at issue was severe or pervasive enough to create a hostile work environment. Moreover, the agency concluded that Tokur failed to show that the behavior at work was based upon her protected groups. The FAD further found no failure to provide religious accommodation as the complainant was permitted to wear her hijab to work every day without exception.
On appeal, the Commission noted that to establish hostile work environment, Tukor had to show that: 1.) she belonged to a statutorily protected class; 2.) she was subjected to harassment in the form of unwelcome physical or verbal conduct; 3.) the harassment complained of was based upon her statutorily protected class; 4.) the harassment affected a term or condition of employment and/or creating an intimidating, hostile, or offensive work environment; and 5.) there is a basis for imputing liability to the employer. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Moreover, the incidents had to be "severe or pervasive" enough to alter her working conditions and create an abusive environment. Harris v. Forklift Systems, 510 U.S. 17, 21 (1993). The Commission concluded that Tukor failed to prove hostile work environment discrimination. It pointed out that the only evidence that the complainant offered—that she had been discriminated on the basis of her membership in a protected group—was that she was initially told that she could not wear her hijab. However, the Commission pointed out that her supervisor quickly backtracked and allowed her to wear it.
As for Tukor's discrimination based on religious accommodation claim, the Commission indicated that in order to put forth a claim, she had to demonstrate that: 1.) she had 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 nonetheless enforced the requirement against her. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993). The Commission declined to find discrimination based on religious accommodation as Tukor herself admitted that she was allowed to wear her hijab to work each day without exception.
The Commission modified the FAD, however, in finding that Tukor was denied official time to complete her EEO complaint. The Commission noted that it was within its authority to remedy a denial of official time even when it finds that there was no discrimination. This case confirms that federal employees are entitled to official time to process their claims of discrimination regardless of whether their claims turn out to be meritorious.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.