01996248
09-19-2000
Hallie Nesbitt, Complainant, v. William J. Henderson, Postmaster General, Capital Metro Region United States Postal Service, Agency.
Hallie Nesbitt v. United States Postal Service
01996248
September 19, 2000
.
Hallie Nesbitt,
Complainant,
v.
William J. Henderson,
Postmaster General,
Capital Metro Region
United States Postal Service,
Agency.
Appeal No. 01996248
Agency No. 1K-221-0108-98
Hearing No. 100-99-7515X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) 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.<1> The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges
he was discriminated against on the basis of religion (Pentecostal)
when the agency denied his request for religious accommodation. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that complainant, a Part-Time Flexible Motor Vehicle
Operator at an agency facility in Merrifield, Virginia, filed a formal EEO
complaint with the agency on October 17, 1998, alleging that the agency
had discriminated against him as referenced above. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ found that complainant requested: (1) to have Sundays off for
participation in church services; (2) no shifts commencing before 6:00
a.m. on Mondays; and (3) shifts ending by 5:00 p.m. on Wednesdays and
Thursdays to attend a teaching service and choir practice, respectively.
The AJ found that the agency accommodated complainant's request to have
Sundays off but declined to ensure that he not work before 6:00 a.m. on
Mondays or after 5:00 p.m. on Wednesdays and Thursdays. The AJ further
found that complainant had provided no explanation for why he could not
commence work before 6:00 a.m. on Mondays and determined that choir
practice and teaching services were more akin to "extra-curricular"
activities than fundamental tenets or obligations of faith. The AJ
concluded that because of the number of routes which would be disrupted
by his request; complainant's relative lack of seniority among the corps
of like employees; and the nature of the additional activities for which
complainant sought accommodation, it would be an undue hardship for the
agency to accommodate complainant's teaching service and choir practice.
The agency's final decision implemented the AJ's decision.
On appeal, complainant contends that summary judgment was improper
because material facts remained in dispute. Specifically, he submitted
a letter from a church elder stating that his religion requires him to
be an "active" member and thus to participate in church activities that
are held outside the Sabbath. He further contends that he could not
work before 6:00 a.m. on Mondays because it would not be safe for him
to drive following a full day of church activities with no sleep.
When the AJ has issued a decision without a hearing, the Commission
applies a de novo standard of review to the findings of fact and
conclusions of law. Initially, we agree with the AJ that complainant
established a prima facie case of religious accommodation discrimination
because complainant who has a bona fide religious belief, the practice
of which conflicted with his work schedule, informed the agency of
his belief and this conflict, and with regard to the Monday, Wednesday
and Thursday request, the agency nevertheless enforced its requirement
against complainant. 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). 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. 29 C.F.R. � 1605.2(d).
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. 29 C.F.R. � 1605.2(c)(2)(ii).
Upon review, we agree with the AJ that the agency satisfied its burden
to demonstrate that complainant had been accommodated in so far as he
was granted Sundays off for observation of the Sabbath ever since he
requested it. We also agree with the AJ that the agency was not under
an obligation to provide complainant with a religious accommodation
to ensure his ability to attend teaching services and choir practice.
In Berling v. United States Postal Service, EEOC Appeal No. 01903096
(February 6, 1991), the Commission found that participation in such
activities as religious study and choir practice occurs as a desire of
the participant and must be distinguished from a church member's belief in
the tenets of the religion. Regarding the request not to be assigned to
a shift before 6:00 a.m. on Mondays, we are unpersuaded that complainant
required a religious accommodation to guarantee sufficient sleep.
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies, and
laws, and we discern no basis to disturb the AJ's decision. Therefore,
after a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 19, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.