01990311
04-26-2000
Charles E. Day, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charles E. Day, Jr. v. United States Postal Service
01990311
April 26, 2000
Charles E. Day, Jr., )
Complainant, )
) Appeal No. 01990311
v. ) Agency No. 4H320015797
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of religion (Seventh Day Adventist), sex (male), and age (Date
of Birth 8/1/53), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
Complainant alleges that the agency discriminated against him when (1)
he was scheduled to work on Saturday, February 22, 1997; and (2) he was
terminated on April 10, 1997. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a transitional employee (TE) at the agency's New Smyrna Beach, Florida
facility. Complainant alleged that on February 20, 1997, he learned
that he was scheduled to work on his Sabbath which was Saturday, February
22, 1997. Complainant told his supervisor that he would not be able to
work on his Sabbath. His supervisor instructed him to report to work
on that day. Complainant did not report to work on February 22, 1997.
When he returned to work on February 23, 1997, agency officials told him
that he would be terminated on April 11, 1997. A few weeks later, the
agency scheduled complainant to work on his Sabbath which was Saturday,
March 15, 1997. Complainant advised his supervisor that he would not
be able to work, and the supervisor allowed the change of schedule.
On April 10, 1997, complainant received the termination letter. Believing
he was a victim of discrimination for voicing his concerns of working on
the Sabbath, complainant sought EEO counseling. Subsequently, he filed
a complaint on May 20, 1997. At the conclusion of the investigation,
complainant requested a hearing before an Administrative Judge (AJ)
with the Equal Employment Opportunity Commission. Before the hearing,
complainant withdrew his request and asked the agency to issue a final
agency decision.
The FAD concluded that complainant failed to establish a prima facie case
of sex, religion, or age discrimination because he presented no evidence
that similarly situated individuals not in his protected classes were
treated differently under similar circumstances. All TEs were replaced
by career employees or converted to PTFs (part time carriers) in the
Daytona Beach Facility. These conversions were based on test scores.
On appeal, complainant does not make any new arguments. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Issue 1, Reasonable Accommodations
Title VII places a duty upon employers to reasonably accommodate religious
beliefs and practices, unless such accommodation would place an undue
hardship upon the employer. In order to establish a prima facie case of
failure by the agency to accommodate complainant's religion, complainant
must show that: (1) he has a bona fide religious belief, the practice of
which conflicted with an employment duty; (2) he 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); Partridge v. United States Postal Service, EEOC
Appeal No. 01943980 (April 11, 1996).
Once the prima facie case is established, the burden shifts to the agency
to demonstrate that it cannot reasonably accommodate complainant without
incurring undue hardship, or that complainant has been accommodated.
Title VII, � 701(j), 42 U.S.C. 2000e(j); 29 C.F.R. � 1605.2(c)(1); Protos
v. Volkswagen of America, Inc., 797 F.2d 129, 133 (3rd Cir. 1986).
The Supreme Court has found that accommodations which create more
than de minimis monetary or efficiency costs cause undue hardship.
TransWorld Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). A showing of
undue hardship cannot be merely hypothetical, but must instead include
evidence of an actual imposition on coworkers or disruption of work
schedules or routines. Tooley v. Martin Marietta, 648 F.2d 519, 521
(4th Cir. 1987).
The Commission has found acceptable several alternatives for accommodating
conflicts between work schedules and religious practices, including
voluntary substitutes and swaps, flexible scheduling, and lateral
transfer. See 29 C.F.R. � 1605.2(d). Flexible scheduling can include
the use of compensatory time to make up time lost due to the observance of
religious practices. See 5 U.S.C. � 5550a. When there is more than one
method of accommodation available which would not cause undue hardship,
the agency must offer the alternative which least disadvantages the
individual with respect to his or her employment opportunities, such
as compensation, terms, conditions or privileges of employment. See 29
C.F.R. � 1605.2(c)(2)(ii).
Applying this analysis to the instant case, we find that complainant
established a prima facie case of religious discrimination. Pursuant to
his bona fide religious belief as a Seventh Day Adventist, complainant
wanted to worship on his Sabbath which he observed on Saturdays.
This observance was in conflict with his work schedule, and complainant
notified the agency of the conflict.
The agency has shown an undue hardship in regards to complainant's
schedule to work Saturday, February 22, 1997. Saturdays are very
productive days for the agency. On this date, the agency needed
complainant to work because of an employee shortage. Specifically, one
employee was using annual leave and two other employees were on their
non-scheduled day off work. There were no other employees available to
substitute for complainant. In the past, the agency accommodated the
complainant whenever possible by scheduling other available employees
to work on Saturdays instead of complainant. On several occasions
the agency offered overtime to other employees in order to accommodate
complainant's requests and to fulfill the need of the agency.
In finding that the agency had an undue hardship on this date,
the Commission notes that the agency offered complainant many TE
appointments throughout his years with the agency. In doing so,
the agency tried to accommodate complainant's religious observances.
The agency entered into an agreement with the complainant to reasonably
accommodate his requests for Sabbath observances; however, this agreement
did not automatically excuse him from working every Saturday appointment.
Only when the agency did not have enough employees to work on Saturday,
the agency scheduled complainant to work.
Issue 2, Termination
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corporation v. Green. 411 U.S. 792 (1973); Loeb v. Textron, Inc., 600
F.2d 1003 (1st Cir. 1979) (applying the McDonnell Douglas three-part
analysis to age discrimination cases). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor
in the adverse employment action. Id. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Also, in ADEA
cases, the complainant must establish that age was a determinative factor
in the sense that "but for" his age, the complainant would not have been
subjected to the action at issue. See Loeb, supra.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for terminating the complainant.
Specifically, the agency stated that complainant was terminated due to
an agency directive. This directive required the agency's units within
the Northern Florida district to reduce the numbers of TE employees and
replace them with career employees before December 1, 1997. The New
Smyrna Beach, Florida unit was in a position to reduce all of its TE
employees well before this date. The agency stated that complainant
was the last TE employee terminated.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
We find that complainant has failed to meet this burden.
The Commission finds that complainant failed to present evidence that,
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination based on his age, sex, or religion.
In addition, the complainant has failed to show that "but for" his
age he would not have been terminated. In reaching this conclusion,
we note that all TEs were terminated or converted. Complainant was not
converted or hired as a career employee because of his 1997 test scores.
According to the comparison employee matrix, complainant scored the lowest
(at 85.70) while ten other TEs scored significantly higher on the test.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (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:
April 26, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.