01a05190
02-13-2002
John E. Terenyi, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
John E. Terenyi v. Department of Transportation
01A05190
2/13/02
.
John E. Terenyi,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A05190
Agency No. 1-97-1098
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 an Air Traffic Control Specialist at the agency's Millville Automated
Flight Service Station, Millville, New Jersey facility. Complainant
sought EEO counseling and subsequently filed a formal complaint on July
25, 1997, alleging that he was discriminated against on the basis of
religion (Baptist) when the agency refused his request for a schedule
change so that he would have Sundays off in order to participate in
religious services.
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. Complainant
failed to respond to the agency's notice, and the agency issued a final
decision.
In its FAD, the agency concluded that complainant established a prima
facie case of failure to accommodate his religious beliefs. In that
regard, the agency found complainant established that his religion, which
celebrates its Holy Day on Sunday, conflicted with his work schedule.
Further, management was aware of this conflict, but did not permit him
to have all Sundays off in order to attend his religious services.
In response, the agency found that it offered complainant several
accommodations. Specifically, the agency offered complainant the ability
to swap shifts with other employees, �shift flex�, split his shifts,
apply for annual leave, and encouraged him to bid on other positions
that would enable him to be off on all Sundays. The agency noted that
complainant acknowledged that he was able to attend virtually all Sunday
services, but was inconvenienced since he would not know until the last
minute whether this schedule change request was approved.
The agency also found that complainant's requested accommodation, which
was to permanently change his work schedule in order to have all Sundays
off from work, would pose an undue hardship on the agency. Specifically,
the agency maintained that it discussed the matter with the Union, but
the Union refused to permit complainant to have all Sundays off because
it would inconvenience other employees.
On appeal, complainant contends that he is now the Assistant Pastor in
his church, and requires all Sundays off so that he can attend services.
He maintains that his request does not present an undue hardship.
The agency requests that we affirm its FAD.
Under Title VII of the Civil Rights Act of 1964, employers may be
liable for failure to accommodate the religious practices of their
employees absent proof that such accommodation could not be made without
imposing an undue hardship on the employer. 42 U.S.C. 2000e(j);
29 C.F.R. Section 1605.2(b)(1). To establish a prima facie case of
discrimination complainant must demonstrate that: (1) he has a bona fide
religious belief, the practice of which conflicted with his employment,
(2) he informed the agency of this belief and conflict, and (3) the
agency nevertheless enforced its requirement against him. Heller v. EBB
Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993). The agency concedes that
complainant established a prima facie case of failure to accommodate.
Once an complainant establishes a prima facie case, the burden
then shifts to the employer to: (1) conclusively rebut one or more
elements of the plaintiff's prima facie case, (2) show that it offered
a reasonable accommodation, or (3) show that it was unable reasonably
to accommodate the employee's religious needs without undue hardship.
Thomas v. National Association of Letter Carriers, 225 F.3d 1149, 1156
(10th Cir. 2000), citing Toledo v. Nobel- Sysco, Inc., 892 F.2d 1481,
1486 (10th Cir.1989). Pursuant to 29 C.F.R. Section 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.
In the instant case, the agency offered numerous reasonable accommodations
for complainant's religious beliefs. Specifically, the agency offered
complainant the ability to split his shifts, take annual leave, bid on
another position, and swap shifts. To that end, the agency solicited
volunteers to take over complainant's shift. However, none of these
accommodations satisfied complainant for a varying reasons. Complainant
asserts that the manner in which the agency required complainant to
request a shift change left him with insufficient notice that his schedule
would be approved in advance. Furthermore, he claimed he did not have
sufficient driving time to get to church services. Complainant contended
that he did not bid on a position which would enable him to have Sundays
off since it would have affected his retirement. Furthermore, complainant
argued that taking annual leave on all Sundays left him with no family
vacation time. Instead, complainant maintains that his schedule should
be permanently changed so that Sunday is his regular day off.
While the accommodation provided by the agency was not the accommodation
specifically requested by complainant, the agency was not required
to provide an accommodation preferred by complainant. Instead, any
effective accommodation by the agency was sufficient to satisfy its
legal obligation. See Ansonia Board of Education v. Philbrook, 479
U.S. 60, 68, 107 S.Ct 367, 372 (1986); Brown v. United States Postal
Service, EEOC Appeal No. 01971481 (July 30, 1999)(agency's denial of
requested disability accommodation not discrimination where the agency's
proposed accommodation was effective). Therefore, although complainant
argues on appeal that his requested accommodation does not present an
undue hardship, the agency was not obligated to demonstrate that the
particular accommodation requested by complainant would result in an undue
hardship when the agency had already offered a reasonable accommodation.
See Ansonia Board of Education v. Philbrook, 479 U.S. 60, 68, 107 S.Ct
367, 372 (1986)
Accordingly, 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
2/13/02
Date