Karl A. Wooten, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E/S.W. Region), Agency.

Equal Employment Opportunity CommissionFeb 11, 2000
01980848 (E.E.O.C. Feb. 11, 2000)

01980848

02-11-2000

Karl A. Wooten, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E/S.W. Region), Agency.


Karl A. Wooten v. United States Postal Service

01980848

February 11, 2000

Karl A. Wooten, )

Complainant, )

) Appeal No. 01980848

v. ) Agency No. 4G730118395

)

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(S.E/S.W. Region), )

Agency. )

)

DECISION

Karl A. Wooten (complainant) timely initiated an appeal of a final

agency decision (FAD) concerning his complaint of unlawful employment

discrimination on the basis of religion (Seventh-Day Adventist), in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. � 2000e et seq.<1> The appeal is accepted in accordance with EEOC

Order No. 960.001. For the following reasons, the Commission AFFIRMS

the FAD.

Issue Presented

The issue on appeal is whether complainant has established by a

preponderance of the evidence that he was subjected to unlawful

employment discrimination on the above-cited basis when he received a

14-day suspension on July 6, 1995.

Background

The record reveals that during the relevant time, complainant was employed

as a PS-05 Distribution Clerk, at the agency's Bethany, Oklahoma facility.

Complainant alleged that he was denied a religious accommodation and

treated differently than similarly situated individuals when he was

issued a 14-day suspension for being Absent Without Official Leave

(AWOL). The record establishes that complainant failed to report for

duty as scheduled on June 10, 1995 and on June 17, 1995, both Saturdays.

The agency noted, and complainant did not dispute, that complainant

did not request any type of leave or notify his immediate supervisor of

these absences, except to send a Routing Slip on June 16, 1995 noting

that he was exercising his First Amendment right to freedom of religion.

Because complainant had been disciplined in the past for being AWOL,

management issued a 14-day suspension for the June 10 and June 17 AWOLs.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on August 25, 1995. At

the conclusion of the investigation, complainant initially requested an

administrative hearing, but later rescinded that request and asked that

the agency issue a final decision.

The FAD concluded that complainant established a prima facie case of

religious discrimination when he demonstrated that he held a bona fide

religious belief, that compliance with an employment requirement would

violate this belief, that his employer was aware of this conflict,

and that he was adversely affected for refusing to comply with the

employment requirement. The FAD went on to conclude, however, that

the agency proved by a preponderance of the evidence that the action

at issue was not motivated by discriminatory animus and that management

provided a legitimate non-discriminatory reason for the action.

Complainant raises no contentions on appeal.

FINDINGS AND ANALYSIS

In this case, complainant claimed discrimination due to a failure

to accommodate his religious beliefs/practices and due to disparate

treatment based on his religion.

To establish a prima facie case of discrimination based on a failure to

accommodate religious practices or beliefs, complainant must demonstrate

by a preponderance of the evidence that: (1) he has a bona fide religious

belief that conflicts with an employment requirement; (2) he informed his

employer of this belief; and (3) he was disciplined for failing to comply

with the conflicting employment requirement. See Bishop v. Department

of the Air Force, EEOC Petition No. 03970085 (September 16, 1997).

Once complainant establishes a prima facie case, the burden shifts to the

agency to demonstrate that it cannot reasonably accommodate complainant's

religious beliefs without incurring an undue hardship upon its operation.

Undue hardship, as defined by the Supreme Court, is any accommodation

that would involve more than de minimis cost. See Trans World Airlines

v. Hardison, 432 U.S. 135 (1977). The reasonableness of an employer's

attempts at accommodation must be determined on a case-by-case basis.

Accommodation for religious practices includes, but is not limited

to, voluntary substitutions or swaps, flexible scheduling and lateral

transfers and job changes. See 29 C.F.R. � 1605.2(d). With regard to

voluntary substitutions or swaps, the Commission believes the obligation

to accommodate requires employers to facilitate the securing of a

voluntary substitution. Id. Any reasonable accommodation proffered

by the employer is sufficient to meet its accommodation obligation.

See Bishop v. Department of the Air Force, EEOC Petition No. 03970085

(September 16, 1997).

In regard to a claim of religious discrimination due to disparate

treatment, the allocation of burdens and order of presentation of proof

in a Title VII case is a three-step process. McDonnell-Douglas Corp

v. Green, 411 U.S. 792 (1973).

Complainant has the initial burden of establishing a prima facie case of

discrimination. A prima facie case of discrimination based on religion

is established where complainant has produced sufficient evidence to show

that (1) he is a member of a protected class; (2) he was subjected to an

adverse employment action; and (3) similarly situated employees outside

his protected class were treated more favorably in like circumstances.

Complainant may also meet this burden by presenting other evidence which

raises an inference of discrimination. Potter v. Goodwill Industries

of Cleveland, 518 F. 2d 864 (6th Cir. 1975); Furnco Construction

Corp. v. Waters, 438 U.S. 567, 576 (1978).

If complainant has established a prima facie case, the burden

of production shifts to the agency to articulate a legitimate

non-discriminatory reason for the adverse employment action. Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981).

If the agency articulates a reason for its actions, the burden of

production then shifts back to complainant to establish that the

agency's proffered explanation is pretextual, and that the real reason is

discrimination or retaliation. Throughout, complainant retains the burden

of proof to establish discrimination by a preponderance of the evidence.

It is not sufficient "to disbelieve the employer; the fact finder must

believe the plaintiff's explanation of intentional discrimination."

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis

in original).

Here, the agency found that complainant had established a prima facie

case of discrimination based on failure to accommodate. It is clear

that complainant is a Seventh Day Adventist and that his church's

policy against work on the Sabbath (Saturday) constitutes a firmly

held religious belief. The agency was aware of these beliefs, as

evidenced by the accommodations management provided complainant in

the past. The 14-day suspension was issued when complainant failed on

two occasions to report for duty according to his normal schedule, which

required him to work on Saturdays. We note, however, that complainant

did not attempt to receive an accommodation for the days in question.

He did not ask management for leave of any type, but merely neglected to

come to work with no explanation on one occasion, and with a note citing

the First Amendment on the next. We fail to see how the agency could

have accommodated complainant on these occasions when he requested no

accommodation. We also note that the record establishes that the agency

did accommodate complainant when he requested accommodation. For example,

he was allowed temporary schedule changes from June 1994 through April

21, 1995 when a coworker was on extended leave. Moreover, the agency

repeatedly advised complainant, who had a great deal of seniority,

to bid on one of the numerous positions that did not include Saturday

as a regular workday.<2> But rather than request an accommodation on

June 10 and June 17, 1995, complainant simply failed to report for work.

Accordingly, we find that complainant failed to establish a prima facie

case of discrimination based on failure to accommodate.<3>

Complainant also appears to have claimed that he was treated less

favorably than similarly situated coworkers due to his religion.

We find, however, that complainant has not established a prima

facie case. He has failed to establish that any similarly situated

employees of a different religion were treated more favorably. In fact,

he noted that other Seventh-Day Adventists were accommodated, casting

doubt on his own assertion that his religion motivated discrimination.

Moreover, he offered no other evidence raising an inference of religious

discrimination.

Even assuming complainant did establish a prima facie case, management

articulated a legitimate non-discriminatory reason for its action.

Specifically, the official who requested the 14-day suspension (RO:

Baptist) testified that he did so because complainant was AWOL and had

been previously disciplined for the same behavior. The record supports

this testimony. Furthermore, the investigative report establishes

that RO had requested similar discipline for non-Seventh Day Adventist

employees who were AWOL. Complainant offered no evidence of pretext

and no evidence that religious discrimination motivated his suspension.

Therefore, after a careful review of the record, including arguments and

evidence not specifically addressed in this decision, we affirm the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

2/11/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________

Date

__________________________

Equal Employment Assistant

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 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.

2 The record establishes that complainant felt he was unfairly denied

a bid job which included Saturday as a normally scheduled off day.

This perceived unfair loss appears to have led to complainant's decision

to stop reporting for duty on Saturdays without requesting leave or other

accommodation. We note, however, that complainant does not allege that

his failed attempt to receive the bid job was due to discrimination.

Rather, he claims that the coworker who received the job had a break in

seniority which should have made complainant the eligible bidder, but for

a mistake on the agency's part. Allegations of unfair treatment that do

not involve discrimination are not within the Commission's jurisdiction.

Nor does complainant's failure to successfully bid on one job with

Saturday off explain his failure to bid on the numerous other such jobs,

especially given his high seniority.

3 We note that the agency went on to conclude that management had

articulated a legitimate nondiscriminatory reason for its actions. The

law is clear, however, that once a prima facie case of failure to

accommodate is found, the agency must demonstrate that it cannot

reasonably accommodate the religious beliefs at issue without incurring

an undue hardship. The articulation of a legitimate nondiscriminatory

reason has no place in a religious accommodation case.