01A00002
03-08-2002
Gerald S. Rondeau, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gerald S. Rondeau v. United States Postal Service
01A00002
March 8, 2002
.
Gerald S. Rondeau,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00002
Agency No. 4-K-210-0085-98
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Letter Carrier at the agency's Walbrook Station facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on June 24, 1998, alleging that he was discriminated against on
the basis of religion (Seventh Day Adventist) when the agency required
him to work on Saturday, the day of the week regarded by members of his
religious denomination to be the Sabbath.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that 1) complainant had failed to
establish a prima facie case of disparate treatment because he failed
to bid on a route (Job #1419182 posted and open from August 17 to
August 27, 1998) with drop days of Saturday/Sunday as the agency had
advised him to do; 2) that the agency had articulated a legitimate,
nondiscriminatory reason for its action in not allowing complainant time
off each and every Saturday, namely that complainant was accommodated on
each occasion that the agency could through such means as annual leave,
leave without pay, temporary changes to complainant's days off day-off,
and voluntary switches with other carriers; and 3) that complainant
could not be accommodated time off each and every Saturday because to
do so would conflict with the collective bargaining agreement because,
as a junior employee, management could not bump other employees or refuse
senior employees their day off in order to accommodate complainant.
On appeal, complainant contends that because Job #1419182 is a
Friday/Sunday drop he did not bid on it. The agency requests that we
affirm its FAD.
In order to establish a prima facie case of failure to provide reasonable
accommodation for an employee's religious belief, complainant must show
that: (1) he has a bona fide religious belief that conflicts with an
employment policy; (2) he informed the employer of this belief; and (3)
he was adversely affected in some way for failure to comply with the
conflicting employment requirement. See Mann v. United States Postal
Service, EEOC Request No. 05900994 (November 20, 1990). In this case
the agency does not dispute that complainant is an observant Seventh
Day Adventist and that his belief is genuine. The agency found,
nonetheless, that complainant failed to establish a prima facie case
because complainant was advised to, but did not, bid on a route which
would not require him to work on Saturday. In this regard, the agency
cites to a specific route, notes that complainant failed to bid on it,
and observes that a less senior employee successfully bid on the job.
The Commission agrees with the agency that, contrary to complainant's
contention, Job #1419182 is, in fact, a Saturday drop day and complainant
could have bid on it but he did not. Nonetheless, to the extent that
complainant seeks a permanent or on-going accommodation, then whether he
failed to bid on this specific job does not address the overall matter
of the agency's position that complainant cannot be accommodated in the
manner requested, namely, that complainant be given time off each and
every Saturday. The fact remains that complainant is adversely affected
for his failure to comply with the conflicting employment requirement
that he work Saturdays.
Where as here, once a prima facie case is established, the burden shifts
to the agency to demonstrate that it cannot reasonably accommodate
complainant's religious beliefs without incurring an undue hardship
upon its operations. See 29 C.F.R. � 1605.2. Undue hardship, as has
been defined by the Supreme Court, may include any accommodation which
would involve more than a de minimis burden, such as where the requested
accommodation would deny another employee his or her job preference
guaranteed by a bona fide seniority system or otherwise conflict with
a collective bargaining agreement. Trans World Airlines v. Hardison,
432 U.S. 135 (1977).
In the case at hand, the agency found, and the record supports,
that complainant cannot be accommodated with time off each and every
Saturday because to do so would conflict with the collective bargaining
agreement between the union and the agency. Since management cannot
bump more senior employees or refuse them their days off, the agency has
accommodated the complainant's religious beliefs by allowing him off
on Saturdays whenever it has been able to do so through such means as
annual leave, leave without pay, temporary changes and voluntary day-off
switches with other carriers.
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 (M0701)
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), 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 8, 2002
__________________
Date