05980433
12-08-2000
Glen D. Harmon, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Glen D. Harmon v. Department of Transportation
05980433
December 8, 2000
.
Glen D. Harmon,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Request No. 05980433
Appeal No. 01950755
Agency No. 930235
Hearing No. 250-94-8042X
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Glen
D. Harmon v. Department of Transportation, EEOC Appeal No. 01950755
(February 3, 1998).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)).
The pertinent facts that led to this complaint are as follows: in February
1992, complainant, an Air Traffic Control Specialist, voluntarily entered
a substance abuse program after realizing he had become addicted to
a prescription drug. He informed the agency of his self-referral and
was thereafter placed into an administrative position. In March 1992,
complainant was presented with a letter which required, among other
things, complainant to attend Narcotics Anonymous (NA) 12 Step program
for one year. The letter also informed complainant that his failure to
attend the program would result in the termination of his employment.
The gravamen of the instant complaint centered around complainant's
contention that the NA program was religious based, and promoted praying
and other religious activity. Complainant, an Agnostic, does not share
these tenets, and thus, objected to the program. Complainant also
requested alternative programs, but was denied such. The instant
complaint followed.
Following an investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). Prior to the hearing, the agency admitted
that complainant's rights under Title VII were violated. Finding that
the agency admitted to liability, the AJ proceeded to hold a hearing on
the issue of damages only.
In her decision, the AJ found complainant was not entitled to compensatory
damages since he failed to offer sufficient proof of an actual injury.
As relief, the AJ recommended that the complainant be given reasonable
attorney's fees and costs. The AJ also recommended that the agency
�cease the practice of requiring employees to participate in religious
based programs such as the 12-Step program.� AJ RD at 10.
On August 29, 1994, the agency issued a final decision that concurred
with the findings and conclusions of those recommended by the AJ. As for
corrective action, the agency only agreed with the AJ's recommendation
that it award complainant attorney's fees and costs. The agency rejected
the AJ's recommendation that the agency cease the practice of requiring
employees to participate in the 12-Step program. Instead, the decision
directed the agency to find suitable alternatives for employees who
object to participating in 12 Step programs for religious reasons,
unless doing so would cause undue hardship.
Complainant appealed the agency's final decision. See Glen D. Harmon
v. Rodney E. Slater, EEOC Appeal No. 01950755 (February 3, 1998).
Therein, we affirmed the agency's final determination that complainant was
not entitled to compensatory damages. As for the agency's requirement
that employees participate in the NA program, the prior decision found
that a reasonable accommodation would be provided to complainant, and
others who similarly held religious objections, if the agency offered
alternative substance abuse programs, unless doing so caused an undue
hardship.
Therefore, the prior decision ordered the agency to �advise, in writing,
all potential participants in the 12-step drug/alcohol rehabilitation
program of the religious nature of the program.� Harmon v. Slater, EEOC
Appeal No. 01950755 at p. 7-8. Furthermore, the agency was ordered to
offer a suitable alternative for complainant and other employees who
object to participating in religious based programs, unless doing so
would cause an undue hardship. Finally, the agency was ordered to cease
the practice of requiring employees with such religious objections to
participate in religious based 12 step rehabilitation programs.
In response to our order, the agency filed the instant request for
reconsideration. Therein, it argues that we erred when we referred to
the 12 step program as �religious in nature.� Specifically, the agency
argues that it only admitted that it erroneously required complainant
to attend a 12-step program; not that the program was religious based.
The agency maintains that it cannot be forced to characterize its NA
program as religious if it does not believe it is religious in nature.
They maintain the program is not based on religion, but rather, centers
around the belief in a �Power greater than ourselves who can restore us
to sanity.� Agency Brief at 4-5.
Attached to the agency's Brief is a Declaration of the agency's then
attorney who appeared before the AJ in the instant case. She declared
that prior to the start of the hearing, the agency admitted that it
failed to accommodate complainant's religious beliefs when it required
him attend the NA program, �which he believed to be religious based.�
Id. at ex. 2 She went on to add that, �the admission went to the agency's
actions regarding [complainant] only. At no time was it the intention of
the Agency to characterize the NA/AA programs as religious based.� Id.
In response to the agency's argument, complainant argues that the
program's materials establish that the 12-step program is religious based.
He supplies statements from his progress reports taken during the program
wherein the counselor reported complainant had difficulty accepting the
concept of a Higher Power. Complainant requests that other employees
be told of the religious nature of the program so that they may make
educated decisions about their treatment.
ANALYSIS AND FINDINGS
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. Trans World
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).
In its request for reconsideration, the agency argues that the prior
decision erroneously characterized the NA program as �religious in
nature.� Since, they argue, this characterization was erroneous,
the remedies ordered were likewise erroneous and should therefore be
waived. Specifically, the agency argues that it should not be required
to inform prospective program participants of the �religious nature� of
the NA program. They argue that informing participants of this may �have
the effect of driving needy alcohol and narcotics abusers away from the
most well known program to other programs for mistaken reasons.� Agency
Brief on Reconsideration at p. 7.
To the extent that the agency is now, on Reconsideration, arguing
that offering alternative programs would not constitute effective
rehabilitation and thus cause an undue hardship on the agency, we remind
the agency that their opportunity to argue such was at the hearing. In
the instant case, the agency admitted prior to the onset of the hearing,
that it violated complainant's rights when it failed to accommodate his
religious practices. Specifically, the agency admitted it was liable
because it forced an employment duty on complainant despite its awareness
that the employment duty conflicted with complainant's religious practice.
There is no record of the agency's dispute as to this issue.
The fact that the agency, or other employees for that matter, do not
find the program religious in nature is not determinative. Here, the
prima facie case and liability were already admitted to at the hearing.
All that is necessary at this stage is to order relief that will remedy
the discrimination. The relief that should be considered at this
stage includes the provision of alternatives for those who do not wish
to participate because of their religious beliefs; the discontinuance
of the agency's practice of requiring individuals to participate should
their religious beliefs conflict with the programs, and finally, ensuring
that future violations do not recur.
To prevent future violations of this sort from recurring, the prior
decision determined that the agency should inform prospective program
participants of the religious nature of the program. Our regulations
provide for such relief. See 29 C.F.R. � 1614.501(a)(1) and (2).
This will provide the prospective participant with the knowledge that the
NA program contains references to religion. Some participants may object,
some may not. Those who hold religious beliefs that conflict with this
program will be offered alternative programs. In order that the relief
ordered will have the greatest effect on all potential participants, we
have modified the prior decision to clarify the order contained therein.
We believe the following course of action will provide prospective
program participants with valuable information so that they may make an
informed decision as to whether they hold religious objections to agency
sponsored rehabilitation programs. By complying with this decision,
the agency will also benefit by providing participants with information,
because it will reduce the likelihood that future similar violations
will not recur. Therefore, the agency shall advise, in writing, all
potential participants of any rehabilitation program, the attendance of
which is a term, condition or privilege of agency employment, of the
specific nature, philosophy or mission of the rehabilitation program.
Included in this notification should be informative brochures or other
documentation produced for the rehabilitation program, which are intended
to provide specific information about the program, and answer questions
about the rehabilitation program. The documentation produced by the
agency pursuant to this decision should have the purpose or effect of
educating prospective participants of the nature of the rehabilitation
program, so that the individual can make an informed choice regarding
his or her participation in that program, or whether to elect alternative
programs.
We do note for the agency that the prior decision's characterization of
the program as �religious in nature� is consistent with cases dealing
with drug and alcohol rehabilitative programs within the prison context.
Courts have found that requiring prisoners to attend religious based
rehabilitation programs, such as NA, violated the Establishment Clause
of the First Amendment. See, Kerr v. Farrey, 95 F.3d 472, 479-480 (7th
Cir. 1996); Griffin v. Coughlin, 88 N.Y.2d 674, 649 (N.Y. App.Ct. June
11, 1996). In so holding, courts held that the NA program, despite
utilizing language such as �G-d as we understand Him� in its materials,
was in fact, based upon a belief in a �Supreme Being,� and therefore,
based upon a religious concept of a Higher Power. See Kerr v. Ferry,
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01950755 remains the Commission's final decision. The agency
will comply with the Order stated in the previous decision.<2> There
is no further right of administrative appeal on the decision of the
Commission on this request for reconsideration.
ORDER
The agency shall advise, in writing, all potential participants in the
12-step drug/alcohol rehabilitation program of the religious nature of
the program.
The agency shall offer a suitable alternative for complainant and
other employees who object to participating in religious-based 12-Step
drug/alcohol rehabilitation programs, or other rehabilitation programs
offered by the agency, unless doing so would place an undue hardship on
the agency.
The agency shall immediately shall cease the practice of requiring
employees with such religious objections to participate in religious-based
12-step rehabilitation programs.
The agency shall pay complainant's reasonable attorney's fees and costs
in accordance with the paragraph below.
The agency shall post a notice in accordance with the paragraph below.
The agency is further 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 verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (H0900)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
December 8, 2000
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Department of Transportation, Federal Aviation Administration, Air
Route Traffic Control Center, Memphis Tennessee facility, (hereinafter
referred to as �facility�) supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The facility has been found to have discriminated against an employee
based on his religion (Agnostic) and violated Title VII, when it
required him to attend a religious-based 12 Step Narcotics Anonymous
program. The agency was ordered to advise, in writing, all potential
participants in the 12-step drug/alcohol rehabilitation program of the
nature of the program and offer a suitable alternatives for complainant
and other employees who object to participating in rehabilitation
programs, unless doing so would place an undue hardship on the agency.
The agency was also ordered to cease the practice of requiring employees
with such religious objections to participate in religious-based 12-step
rehabilitation programs, pay complainant's reasonable attorney's fees,
and post this notice.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 16141On 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.
2The format of the previous decision's Order has been modified and
sections explicitly ordering the payment of attorney's fees and the
posting of a notice have been added to clarify the relief ordered.