HHS Video That Depicted HHS Group Director Wearing Allegedly Anti-Israel Symbols Wasn’t Actionable Workplace Harassment

In June 2024, the Centers for Medicare and Medicaid Services (CMS) distributed a video internally to its employees as part of a “Coffee With” series. The June 2024 episode was an interview with Ronza Othman, the director of the EEO Compliance Group within CMS’s Office of Equal Opportunity and Civil Rights. In the video, Ms. Othman, who is an attorney who happens to be blind and was holding a white cane, describes her hobbies, the challenges and opportunities of serving in a role like hers, and other aspects of her approach to her job.

Plaintiffs in this case worked for CMS at the time and are Jewish. They have sued the Secretary of the U.S. Department of Health and Human Services in his official capacity (“Defendant” or “HHS”), contending that the video constituted “severe, pervasive, and unwelcome harassment” on the basis of national origin and religion. They do not take issue with the content of the interview but rather with a scarf that Ms. Othman was wearing during the interview that both Plaintiffs and Ms. Othman have described a keffiyeh. Plaintiffs do not take issue with Ms. Othman wearing a keffiyeh as such, but rather focus on an image on it that includes a Palestinian flag, a map, and a hand with two fingers raised. Plaintiffs contend that they perceive the image as “advocating for the murder and slaughter of persons of Jewish heritage and faith, as well as the destruction of Israel.”

HHS vigorously disputes that characterization, or the reasonableness of that perception. But for current purposes the Court need not wade into those disputes because for Plaintiffs’ hostile work environment claim to proceed, they must allege either (1) that Ms. Othman was Plaintiffs’ “supervisor” or (2) that after being put on notice of the allegedly harassing behavior HHS took “‘no prompt and adequate remedial action to correct it.'” Plaintiffs’ allegations do not allege facts that would satisfy either standard.

{Defendant also asserts that at minimum Plaintiffs’ claim based on religious-based discrimination should be dismissed because “Plaintiffs have set forth no facts that would support the conclusion that the alleged harassment occurred because of their religion.” The Court need not and does not reach that argument for partial dismissal because, for the reasons explained herein, the complaint is subject to dismissal on other grounds. As explained below, the Court also need not and does not reach the question of whether the conduct alleged rises to the level of “severe or pervasive” as required to make out a hostile work environment claim.}

Plaintiffs do not contend that Ms. Othman wearing a keffiyeh would have rendered the video offensive. Instead, Plaintiffs’ claim hinges on an image appearing at the two ends of the scarf. ECF No. 1 ¶ 10 (“During the video, Ms. Othman was wearing a keffiyeh which displayed a symbol of violence against Jewish persons.”). It is that image that Plaintiffs claim rendered the interview “severe, pervasive, and unwelcome harassment.” …

The image appears to be of a Palestinian flag, a map of Israel/Palestine (i.e., of Israel including the Palestinian territories), and a hand in front with the flag with two fingers raised. The hand is colored red. The parties vigorously dispute the significance of the hand: Ms. Othman stated that she understood the image to be “a peace sign” and stated that when she purchased it “[t]he shop carried keffiyeh with peace signs in various colors.” Plaintiffs, on the other hand, allege that they perceived it as “a symbol of red hand, which advocates for violence, including murder, against Jewish persons and the denial of the right of Israel to exist.” They allege that a red hand with two fingers raised is not a peace sign but rather “glorifies the murder of Jewish persons for their national origin and religion.”

On June 6, three days after the date that Plaintiffs allege the video was disseminated, Plaintiffs along with other CMS employees circulated an open letter to CMS management. The letter described Ms. Othman as “wearing a scarf bearing the pattern of a keffiyeh depicting a Palestinian flag over the shape of the map of Israel and a red hand that has become symbolically associated with gruesome acts of violence and bloodshed.” The letter went on to acknowledge that CMS policy “is broader than the legal definition of harassment” and prohibits “any comment or conduct that disparages, denigrates, or demonstrates hostility or aversion towards any person (including applicants for employment) that could reasonably be interpreted as harassing, offensive, or inappropriate in the workplace,” including through “dissemination of offensive written or pictorial material.”

Plaintiffs described Ms. Othman’s “choice of attire” as “deeply disturbing, offensive, and appalling” particularly because she was appearing in an official CMS video “while serving in her official capacity as the Director of the EEO Compliance Group.” They also stated that they considered her “choice of attire” as “deter[ring] those who are offended by her actions from safely seeking EEO guidance and counseling.”

In that letter, Plaintiffs acknowledged, “We have recently been informed that the video has been removed, and we appreciate leadership’s prompt action.” They stated, however, that they “strongly feel that accountability requires that additional action be taken,” to “ensure that CMS continues to be a place where all employees feel safe and respected, especially by those whose job it is precisely to do so in the first place.” …

“[T]he existence of unwelcome conduct, based on an employee’s race or sex [or religion or national origin], that is severe or pervasive enough to create a hostile work environment, is not on its own enough to hold an employer liable.” To sue an employer for a hostile work environment, an indispensable element is that the conduct at issue is “imputable to the employer.” The specific standards for that element depend in part on “the status of the alleged harasser,” i.e., whether or not the alleged harasser was a “supervisor” for imputation purposes, a term that has been defined narrowly in the caselaw. Where an alleged harasser was a “supervisor,” the employer “may be vicariously liable for its employees’ creation of a hostile work environment.” Where the harasser was not a supervisor, a different standard applies, and focuses instead on whether the employer had “actual or constructive knowledge of the allegedly harassing conduct,” and took “‘no prompt and adequate remedial action to correct it.'” …

“In Vance [v. Ball State Univ. (2013)], the Supreme Court resolved a circuit split and defined ‘supervisor’ for purposes of imputed liability under Title VII.” It held that a supervisor is an individual who has been empowered “to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'” In adopting that standard, the Supreme Court expressly rejected a competing theory, which had been adopted by some circuits, that “tie[d] supervisor status to the ability to exercise significant direction over another’s daily work.”

Plaintiffs do not allege that Ms. Othman had any authority “to take tangible employment actions against [them],” as required by Vance. Plaintiffs themselves allege that Ms. Othman was an official in the Office of Equal Opportunity and Civil Rights, and none of them allege that they worked in that office or otherwise reported to Ms. Othman….

[I]t does appear reasonable to infer that a person in a position of authority within an agency-wide EEO office, like Ms. Othman, can exercise some authority over the terms of employment of individuals outside her specific office, including, as Plaintiffs articulate, by “investigating and making determinations about violations of the Defendant’s EEO policies” and making “recommendations about potential disciplinary action to resolve potential violations.” And for that reason it may be reasonable for Plaintiffs to expect that a person in Ms. Othman’s position would err on the side of caution in avoiding statements or conduct within the workplace that risk offending others, whether intended as such or not. But even considering those facts and inferences …, none of them render her Plaintiffs’ “supervisor” under the narrow standard set forth in Vance. In Vance, the Supreme Court took pains to emphasize “a clear distinction between supervisors and co-workers,” one that “can usually be readily determined, generally by written documentation.” The Vance Court expressly rejected a standard that “would make the determination of supervisor status depend on highly case-specific evaluation of numerous factors.” Here, Plaintiffs’ acknowledgement that “Ms. Othman could not directly fire, hire, or otherwise take discipline against them,” is dispositive under Vance…

Because Ms. Othman was not Plaintiffs’ “supervisor” within the meaning of Vance, to state a hostile work environment against HHS Plaintiffs must allege that the agency (1) “knew or should have known about the harassment” and (2) upon such notice failed to take “remedial action reasonably calculated to end the harassment.” … Plaintiffs acknowledged that the video was removed within days of being posted …. Plaintiffs do not contend that anything like Ms. Othman’s display of the complained-of image happened again; there is no allegation that the alleged harassment recurred. The absence of any recurrence, combined with the fact that the employer immediately (within a day or two) removed the allegedly offending video, further confirm that Plaintiffs have not alleged facts that would establish that HHS, once it knew or should have known about the harassment, failed to take remedial action reasonably calculated to end the harassment.

Plaintiffs contend that the agency’s response fell short because “no recourse was taken by the Defendant against Ms. Othman” and the agency “refused to apologize” and instead “continued” (at least for an unspecified period of time) “to defend the actions of Ms. Othman.” But “an employer is not required to terminate a [particular] perpetrator except where termination is the only response that would be reasonably calculated to end the harassment.” Here, Plaintiffs have not alleged facts that would establish that taking “recourse” against Ms. Othman personally was the “only response that would be reasonably calculated to end the harassment.” …