EEOC Appeal No. 0120150382
05-01-2015
Complainant v. Dep't of Def.
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120150382
Hearing No. 420-2013-00197-X
Agency No. DECA-00237-2012
DECISION
Complainant filed an appeal from an Agency final order, dated November 25, 2014, regarding an equal employment opportunity (EEO) complaint claiming 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). 1
BACKGROUND
During the relevant time, Complainant worked as a Commissary Contractor Monitor, GS-1101-06, assigned to the Quality Assurance Evaluators (QAE) department at the Agency's Redstone Arsenal Commissary in Huntsville, Alabama. Believing that she was denied a religious accommodation, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On December 18, 2012, Complainant filed a complaint based on religion, race (Caucasian) and color (white), claiming that she was improperly denied the opportunity to observe her Sabbath.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ). Complainant timely requested a hearing. On August 26, 2014, the AJ assigned to the case issued an order dismissing the hearing request and complaint with prejudice.
The hearing was scheduled to be held in Huntsville, Alabama on August 19, 2014. According to the AJ's order, on the morning of the hearing neither Complainant nor her representative was present. At approximately 8:50 a.m., the court reporter was advised that the case had been settled. Minutes later, the AJ received a phone call from the Agency's representative confirming that a settlement had been reached. The AJ noted that he did not receive any communication from Complainant on that day.
It was not until August 25, 2014, in response to the AJ's email and letter notifying the parties that no further action would be taken on Complainant's hearing request, that Complainant's representative informed the AJ that settlement efforts had failed. The representative requested a new hearing date. The same day, the AJ issued an order dismissing the hearing request and complaint with prejudice based upon Complainant's failure to appear and the expenses incurred by the Commission in traveling to the hearing location.2
Following the AJ's dismissal, Complainant filed the instant appeal. The Agency response included a final decision addressing the merits of her claim of discrimination.
On November 25, 2014, the Agency issued the instant final decision. Therein, the Agency framed the claim as follows:
Complainant was discriminated against when she was denied the opportunity to observe her Sabbath (Saturday).
The Agency found no discrimination. Believing that from sunrise on Saturday until sunrise on Sunday is a holy time, in 2008. Complainant verbally requested every Saturday off for religious reasons from her supervisor. Supervisor C denied Complainant's request because "having every Saturday off would not be fair to the other QAEs who work the full schedule. . . ." Supervisor C noted that the monthly rotation in place allowed Complainant several Saturdays off. Management also suggested to Complainant that she ask her co-workers to voluntarily swap schedules. According to the Agency, its actions met its obligation to accommodate Complainant's request and therefore did not support a finding of discrimination.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the 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").
AJ's Decision to Dismiss Hearing and Complaint
In the instant case, the AJ dismissed the request for a hearing and the formal complaint with prejudice when the parties did not appear at the hearing and Complainant failed to contact the AJ until approximately a week later. On appeal, Complainant's attorney contends that a tentative settlement agreement had been reached the day before the hearing, and that "attempts to leave messages for [the AJ] were fruitless" as he had already "left his home office in Birmingham and travelled to the hearing site. . . ." Further, Complainant's attorney reiterates his argument that Complainant should not be "punished" and sanctioned for failing to reach a settlement agreement. The parties had verbally agreed to a settlement (later found to have been purportedly based on a mutual mistake), "made every effort to contact the AJ", and "obviously did not report the next day at the hearing under the impression that the matter ha[d] been settled." Complainant notes that the Agency also failed to appear at the hearing. Finally, with respect to the AJ's reference to the costs incurred by the Commission in traveling to the hearing, the Complainant argues "this is an utterly irrelevant and inappropriate consideration." Instead, contends Complainant, it would be more costly to revisit the matter in the future if Complainant continues to be denied a religious accommodation and files a new complaint.
An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3). The sanctions available to an AJ for failure to provide requested relevant information include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. See Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). These sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would serve this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the complainant has engaged in contumacious conduct, not simple negligence. See Thomas v. Dep't of Transportation, EEOC Appeal No. 01870232 (Mar. 4, 1988).
In this case, Complainant does not dispute that she was aware of the day, time, and location of the hearing. Further, there is no indication in the record that the parties were unaware that the failure to follow the AJ's orders could result in sanctions pursuant to 29 C.F.R. 1614.109(f)(3). Complainant and her attorney acknowledge that they intentionally did not appear at the hearing, based on their belief that a settlement had been reached, and had not informed the AJ. Moreover, Complainant does not dispute the AJ's assertion that Complainant did not communicate with the AJ until after his dismissal of the matter.
Therefore, we find that Complainant did not offer sufficient justification for failing to appear at the hearing and the AJ's determination that she should be sanctioned for her non-compliance was appropriate.3 However, we also find that Complainant's conduct did not rise to the level of contumacious conduct. In light of the circumstances of this case, we find that the appropriate sanction for Complainant's failure to appear for the hearing would have been for the AJ to deny Complainant's hearing request and remand the case to the agency for issuance of a decision on the merits of the case. The Commission has held that absent clear evidence of contumacious conduct, an agency should not dismiss a complaint when it has sufficient information on which to base an adjudication. See Ross v. United States Postal Service, EEOC Request No. 05900693 (August 17, 1990).
As noted above, following Complainant's appeal of the AJ's decision, the Agency nevertheless issued the instant final decision finding no discrimination. We shall now review the Agency's determination.
Religious Accommodation
Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. � 2000e(j); 29 C.F.R. � 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires complainant to demonstrate that: (1) he or she has a bona fide religious belief, the practice of which conflicted with their employment, (2) he or she 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); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).
In this case, the Agency determined that Complainant established a prima facie case. Due to her religious beliefs, Complainant needed every Saturday off from work. Complainant requested Saturdays off from Supervisor C. The supervisor's response was that to permit Complainant to have every Saturday off would be unfair to the other QAEs and the existing rotation allowed her to have some Saturdays off. We agree that Complainant has presented a prima facie case.
Once a complainant establishes a prima facie case, the agency must show that it made a good faith effort to reasonably accommodate the complainant's religious beliefs and, if such proof fails, the agency must show that the alternative means of accommodation proffered by complainant could not be granted without imposing an undue hardship on the agency's operations. See Tiano v. Dillard Dept. Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corporation, 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. United States Postal Service, EEOC Request No. 05890532 (October 25, 1989). Pursuant to 29 C.F.R. � 1605.2(a)-(e), the Commission's "Guidelines on Discrimination Because of Religion" (the Guidelines), alternatives for accommodating an employee's religious practices include, but are not limited to, voluntary substitutes and swaps, flexible scheduling, and lateral transfers and job changes. Undue hardship does not become a defense until the employer claims it as a defense to its duty to accommodate. Ansonia Board of Education v. Philbrook, 479 U.S. 60, 68-69 (1986). In order to show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).
Here, management explained that the existing rotation allowed Complainant to have some Saturdays off. Without stating explicitly, the Agency indicated that to require the other QAEs to always cover Saturdays would be an undue hardship. Both Supervisor C and the Store Director attested that granting Complainant's request for every Saturday off "would not be fair" to the other three QAEs. The Commission does not agree that the perception of "unfairness," without more, constitutes an undue hardship.
In response to Complainant's assertion that there were five individuals that could serve as QAEs, management countered that the supervisor could not be in the rotation and the other individual cited by Complainant was not a QAE. Nonetheless, Complainant attested that Supervisor C's predecessor granted her request for every Saturday off, even with only three QAEs. The record reflects that the Store Director suggested to Complainant that she ask co-workers to swap. The Director also noted that she was unaware of whether or not Complainant took such action.
The Commission has found acceptable several alternatives for accommodating conflicts between work schedules and religious practices, including voluntary substitutes and swaps, flexible scheduling, or lateral transfer and change of job assignments. See 29 C.F.R. � 1605.2(d). With regard to voluntary substitutions or swaps, the Commission believes the obligation to accommodate requires employers to facilitate the securing of a voluntary substitute. Samuelson v. U.S. Postal Service, EEOC Appeal No. 0120112777 (February 19, 2013). Some ways of doing this are publicizing policies regarding accommodation and voluntary substitution, promoting an atmosphere in which substitutions are favorably regarded, or providing a central file, bulletin board, or other means for making voluntary substitutes available. See Hoffman v. U.S. Postal Service, EEOC Appeal No. 01A01092 (June 29, 2001), request to reconsider denied, EEOC Request No. 05A10911 (November 16, 2001).
The record does not show that the Agency took any action to facilitate voluntary swaps. Instead, management placed the burden solely on Complainant. Consequently, we do not find that the Agency's actions (i.e. permitting Complainant some Saturdays off and suggesting that Complainant ask colleagues to swap schedules) constituted a good faith effort to reasonably accommodate Complainant's religious beliefs. Further, management's belief, that requiring Complainant's colleagues to work on her Saturdays would be unfair, does not in itself comprise an undue hardship especially in light of the evidence that Supervisor C's predecessor was able to grant Complainant's request for every Saturday off.
Our review of the evidence of record shows that Complainant has established that she was discriminated against when the Agency failed to reasonably accommodate her religious beliefs.
Race/Color Discrimination
Finally, we note that Complainant also raised the bases of race (Caucasian) and color (white) in her complaint. Based on our review of the record, we find no evidence to support a finding of discrimination due to race or color.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby REVERSE the Agency's final decision and REMAND the matter for further action in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following action:
1. The Agency shall immediately provide Complainant with a reasonable accommodation of her religious beliefs. This shall be accomplished by having the Agency seek the voluntary swap of Complainant's Saturday work obligations with a substitute who has substantially similarly qualifications. At a minimum, the Agency shall disseminate information to all individuals who share substantially similar qualifications of the opportunity to swap Saturday work obligations with Complainant by posting the information on a bulletin board, or other means regularly used by the Agency to advertise such opportunities. The Agency shall ensure that Complainant is not placed in the position of having to seek volunteers herself.
2. Agency shall provide training to the management officials responsible for the failure to accommodate as to the current state of the law on employment discrimination, particularly the "Guidelines on Discrimination Because of Religion" contained at EEOC Regulations 29 C.F.R. � 1605.
3. The Agency shall conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages incurred as a result of the Agency's discriminatory actions in this matter. The Agency shall issue a final decision determining Complainant's entitlement to compensatory damages within 60 calendar days after this decision becomes final.
4. The Agency shall post a notice in accordance with the paragraph below
The Agency is 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 reflecting that the corrective action addressed above has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Redstone Arsenal Commissary in Huntsville, Alabama, 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 (K0610)
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 77960, Washington, DC 20013. 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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 1, 2015
__________________
Date
1 The record reflects that Complainant filed her appeal following the AJ's decision, but prior to the Agency's delayed decision. In the interest of judicial economy, and under the specific circumstances before us, the Commission shall accept the appeal as a review of the Agency's decision.
2 The following day, August 26, 2014, the AJ issued a modified order addressing Complainant's belief, set forth in her motion to reconsider the dismissal, that the order was based on her failure to agree to settle. The AJ reiterated that the dismissal was due to Complainant's failure to appear at the hearing on August 19, 2014, request a continuance or propose an alternative date, or communicate with the AJ until after the dismissal was ordered.
3 The Commission reiterates the reasoning set forth in the AJ's order, that the sanction was not imposed due to the parties' failure to reach an agreement, but rather for Complainant's violation of an order to appear at the hearing.
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0120150382
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120150382