John E. Terenyi, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionFeb 13, 2002
01a05190 (E.E.O.C. Feb. 13, 2002)

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