Eulalia B.,1 Complainant,v.Mark Green, Administrator, Agency for International Development, Agency.

Equal Employment Opportunity Commission

Jul 12, 2018

0120161581 (E.E.O.C. Jul. 12, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Eulalia B.,1
Complainant,

v.

Mark Green,
Administrator,
Agency for International Development,
Agency.

Appeal No. 0120161581

Hearing No. 570-2011-00674X

Agency No. EOP-10-009

DECISION

On April 8, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 1, 2016, final order concerning her 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order finding no discrimination.

BACKGROUND

Complainant worked as a Foreign Services Officer with the Agency since 1980. At the time of
events giving rise to this complaint, Complainant was assigned to serve in the Agency’s Ukraine
office, as the Head of the Program Development Office starting in June 2009. Complainant’s
first level supervisor was Person A, Deputy Mission Director of the Agency Ukraine Post.
Complainant’s second level supervisor was Person B, Regional Mission Director of the Agency
Ukraine Post. Person C served as the Executive Office (EXO) of the Ukraine Post while
Complainant served there. In Ukraine, Complainant resided at housing provided and paid for by
the Agency.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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On June 6, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of religion (Orthodox Judaism) when it failed to provide a reasonable
accommodation for her religion when:

1. The Agency failed to provide Complainant with a mechanical lock for the
entryway to her residence;
2. On March 15 and March 24, 2012, the Agency denied Complainant’s request for
annual leave for travel time to and from her Passover observance site; and
3. Complaint was charged Leave Without Pay (LWOP) for the travel time she
needed to reach the site at which she observed Passover.

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 Administrative Judge (AJ). Complainant requested a hearing and the
AJ held a hearing on August 18 – 19, and September 3, 2015, and issued a decision on December
31, 2015.

In his decision, the AJ found that Complainant established a prima facie case of religious
discrimination regarding her request to have a mechanical lock mechanism installed on the
entrance to her apartment and her request to take leave between March 24 – April 9, 2010, to
observe Passover which resulted in her placement in LWOP.

The AJ further found that the Agency presented sufficient evidence to establish that
accommodating Complainant’s beliefs posed an undue hardship on the Agency. The AJ
determined the Agency made a good faith effort to accommodate Complainant’s religious beliefs
and actually provided an effective accommodation on at least two occasions. First, the AJ noted
it is undisputed that the first apartment the Agency provided Complainant had a “punch key”
locking mechanism and that Complainant resided in the apartment for a short period of time
following her arrival in Kiev. The AJ noted Complainant voluntarily vacated the first apartment
solely on the grounds of aesthetic concerns. The AJ found the evidence demonstrated that the
Agency provided Complainant a reasonable accommodation for her religious beliefs.

The AJ determined the evidence showed that the Agency provided Complainant a second
reasonable accommodation when she was assigned to live in a second apartment containing a
mechanical door lock at the front entryway. The Agency found an alternative apartment for
Complainant to live in and switched her initial housing assignment with another incoming
Agency employee. The second apartment conformed to Complainant’s religious beliefs as she
was not required to activate electricity upon entering or exiting her apartment building during the
Sabbath for the approximate four to five months that she lived there.

The AJ noted that while Complainant was on a six-week vacation, the building owner/landlord
unilaterally decided to change the building door lock mechanism on the second apartment from
mechanical to electrical citing tenant safety and health concerns. As a result of the landlord’s
actions, Complainant was not able to move back into the second apartment. Instead,
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Complainant resided in temporary duty (TDY) apartments for approximately three months while
the second apartment was undergoing repairs. The AJ noted that during this time period, both
Complainant and the Agency engaged in an interactive process to identify appropriate
accommodations that would allow Complainant to enter and exit her residence during the
Sabbath without violating her religious beliefs.

The AJ noted the Agency proposed several solutions but did not provide Complainant with an
effective reasonable accommodation. The AJ noted the burden shifted to the Agency to show
that an accommodation would create more than a de minimis undue hardship to avoid liability.
The AJ noted that Complainant identified at least two accommodations that would have
prevented her from violating her religious beliefs, namely, that the Agency allow her to stay in a
hotel in Kiev during the Sabbath or alternatively provide her with a third apartment containing a
mechanical lock. The AJ determined that these accommodations would have created more than
a de minimis hardship to the Agency.

Specifically, the AJ noted that Complainant asserted the Agency could have allowed her to stay
in a hotel in Kiev during the Sabbath. However, Person C testified that the Regional Security
Officer (RSO) specified that the Agency only utilized five star hotels with the best security level
all of which utilized electronic security systems. He also testified that Complainant would have
been required to use a magnetic card to access the elevator and the entry to her room in the hotel.
The AJ found this would have caused Complainant to violate her religious beliefs.

The AJ stated assuming the proposal was an effective accommodation, the Agency argues it was
untenable due to cost considerations. Person C testified the Agency typically paid $200 per night
for five-star hotel rooms in Kiev. The AJ stated this meant that even if Complainant only stayed
in the hotel one-night per week during the Sabbath, the Agency would need to spend
approximately $200 per week or $800 per month. The AJ found this additional cost was more
than de minimis and that the Agency satisfied its burden of showing that the accommodation
would cause an undue hardship. The AJ noted Complainant did not present specific evidence
which rebutted the Agency’s assertions regarding the RSO’s mandate that the Agency only use
hotels with the best security level (five-star) or that a typical daily rate for rooms at these hotels
was $200 per night.

Additionally, the AJ noted that Person B testified that Complainant was already under lease in
the second apartment and was scheduled to take a mandatory retirement three months later in
July 2010. Person B testified that in order to place Complainant in a third apartment, the Agency
would need to embark on a four to six-month process to locate and secure a vacant apartment.
The AJ noted this process would result in the Agency incurring a loss on the current lease on the
second apartment, additional costs associated with finding the new apartment and taking steps to
convert it to the required security level, and costs incurred to pack and move Complainant.
Thus, the AJ found the additional costs were more than de minimis and that the Agency satisfied
its burden of showing that the accommodation would cause an undue hardship.

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Regarding her leave request and the charge of LWOP, the AJ noted that Person A testified that
Complainant’s absence between March 24 and April 9, 2010, required that people in the
Agency’s Program Office work overtime to meet deadlines. Specifically, the Foreign Service
Nationals, the Ukrainian staff, were put on the teams with the technical offices to develop
concept designs. Those individuals along with a contractor that was hired were required to spend
more time on the concept designs. Person A explained that the problem arose from the fact that
Foreign Service Nations (FSNs) main challenge was the English language as the written products
they were tasked to work on required superb English skills. She also explained that the
contractor had the skill set of a program officer, but did not have the intimate knowledge
required to be able to produce a written product that reflected nuances and complex situations
that developed in Ukraine.

The AJ found Complainant did not provide evidence which rebutted Person A’s testimony
regarding the impact her absence had on the Agency. The AJ also found the need to have
program employees work overtime, the need to have a contractor work outside his/her normal
scope of job duties, and the need to have employees create documents they did not fully
comprehend due to language issues was more than a de minimis cost/impact to the Agency
creating an undue hardship.

The Agency subsequently issued a final order on March 1, 2016. The Agency’s final order fully
implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

On appeal, Complainant appeals the AJ’s determinations on undue hardship. Complainant states
her request for curtailment (reassignment) was a request for religious accommodation directly
resulting from her religious restriction prohibiting activating electricity during certain holy days.
Complainant claims she requested curtailment in January/February 2010, and that the Agency
should have engaged in the interactive process to determine whether curtailment was a
reasonable accommodation. Complainant argues the Agency did not show that curtailment was
an undue hardship for the Agency. Complainant claims the AJ did not address her request for
curtailment.

In addition, Complainant argues the Agency did not meet its burden of demonstrating undue
hardship with respect to the mechanical lock issue. Complainant also claims the Agency did not
show that placement of her in a hotel or a third apartment posed an undue hardship.
Complainant also argues the Agency did not show that it would have been an undue hardship to
return her to her first apartment. Moreover, Complainant states that the Agency did not
demonstrate that providing leave for Passover was an undue hardship.

In response to Complainant’s appeal, the Agency argues Complainant’s claim that she requested
curtailment as a reasonable accommodation for her religion was not an accepted claim in this
case. The Agency states that Complainant failed to assert a curtailment request as a claim and
thus, failed to exhaust her administrative remedies as related to this claim. Further, the Agency
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states that even if the Commission were to consider Complainant’s new claim that she requested
and was denied a reasonable accommodation, she still cannot succeed on this claim.

The Agency argues it provided ample testimonial evidence that it provided a good faith effort to
accommodate Complainant. The Agency notes that Person C, as the EXO at the Ukraine
Mission, was responsible for providing housing for FSOs and TDY employees visiting the
Mission. Thus, the Agency notes he was well acquainted with the housing market in the country
and the cost of hotel accommodations. The Agency noted Person C testified at length about the
several months-long process of obtaining a new apartment. The Agency notes it would have
required significant time and money to conduct the inter-Agency process to find an apartment,
negotiate the lease, invest time and money to “make-ready,” conduct safety checks, upgrade
security to obtain approval from the RSO, and obtain approval from the Inter-Agency Housing
Board. The Agency noted Person C testified the process would take four to six months, and
possibly more because the housing market at the time was very tight even without religious
restrictions. In response to Complainant’s assertion that moving back to the first apartment
would have been a reasonable accommodation, the Agency states it is not required to violate the
rights of one employee to accommodate the religion of another. Furthermore, the Agency notes
that Complainant was retiring the Agency and leaving the post in four months.

Regarding the idea of a hotel, the Agency notes that Person C stated a hotel would not resolve
the issue. First, Person C testified that hotels at which federal employees were allowed to stay
were typically five-star hotels due to security issues, and they also used electronic key cards. In
addition, Person C stated that the hotels typically cost $200 per night. The Agency notes his
statement was supported by State Department per diem rates, which list lodging rates for Kiev,
Ukraine at $240 per night.

Regarding travel leave for Passover and LWOP issues, the Agency notes it was undisputed that it
granted Complainant leave for all the days of Passover. The Agency notes Complainant’s
concern is solely based on the assertion that she was not given several additional days off in
order to travel for Passover. The Agency explains this was the busiest time of the year for the
mission and for the Program Office, for which Complainant was the Director. The Agency notes
Complainant’s office was so busy, the Mission hired a contractor to help her alleviate her
workload.

The Agency notes the record is filled with testimonial evidence detailing the turmoil of the
Mission during Complainant’s unauthorized absence. Person A testified that the Mission FSNs,
not native to the English language, were forced to complete the concept papers with technical
language, the contractor who was hired to assist Complainant was forced to replace her, and staff
had to set aside their own duties to complete fiscal operational plans in order to mediate funding
loss. The Agency states Complainant was the most important employee in the Program Office.
As the Director of the Program Office for the past year, she had intimate knowledge about the
Agency programs. The Agency notes the March-April timeframe was the busiest time for her
office. Finally, the Agency recognizes that all Mission managers were prohibited from taking
leave in April, with the exception of Complainant’s holiday leave. The Agency states it
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attempted to accommodate Complainant’s travel dates; however, she was needed at the Mission.
The Mission states it gave Complainant LWOP as a courtesy and in recognition of her years of
service after she defied the orders of her supervisor by leaving Ukraine.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

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 conflict 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).

Once a complainant establishes prima facie case, the agency must show that it made a good faith
effort to reasonably accommodate complainant’s religious beliefs and, if such proof fails, the
agency must show that the alternative means of accommodation offered by complainant could
not be granted without imposing an undue hardship on the agency’s operation. 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).

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At the outset, we address Complainant’s claim that the AJ improperly failed to address a claim
that she requested curtailment as a reasonable accommodation for her religion. We note that in
her formal complaint, Complainant did not allege that she was denied curtailment as a reasonable
accommodation for her religion. We also note that the Agency’s June 29, 2010 acceptance letter
did not identify a claim that Complainant was denied curtailment as a reasonable accommodation
for her religion. Further, we note Complainant responded, through her attorney to the acceptance
letter, on July 6, 2010, noting several factual inaccuracies regarding Complainant’s complaint.
However, Complainant never raised curtailment as a denial of accommodation claim at the time.
Moreover, we note that at the start of the hearing, the AJ identified the claims accepted for
processing by the Agency (as identified above) and did not identify a claim that Complainant
was denied curtailment as a reasonable accommodation for her religion. We note Complainant’s
attorney concurred on the record at the start of the hearing with the AJ’s definition of the claims.
Thus, we find Complainant did not raise a claim that she requested curtailment as a reasonable
accommodation for her religion and we will not consider such a claim in our decision.

After a careful review of the record, the Commission finds that the AJ's findings of fact are
supported by substantial evidence in the record and that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies, and laws. We discern no
basis to disturb the AJ's decision. Given the testimony and evidence presented at the hearing, we
find the Agency established that providing Complainant the accommodations requested in claims
(1), (2), and (3) constituted an undue hardship.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
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Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

July 12, 2018
Date