Marcos S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionJun 22, 20180120161510 (E.E.O.C. Jun. 22, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marcos S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120161510 Agency No. 4E-800-0098-15 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated March 9, 2016, finding no discrimination concerning his complaint alleging 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a City Carrier, Q1, at Cheyenne Mountain Station, Colorado Springs, Colorado. On September 3, 2015, Complainant filed his complaint alleging discrimination based on religion (Jewish) when on May 28, 2015, and ongoing, he became aware management denied his request for a permanent change of schedule to practice his religion. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency thus issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant appealed. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120161510 2 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. § 2000e(j); 29 C.F.R. § 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires complainant to demonstrate that: (1) he or she has a bona fide religious belief, the practice of which conflict with their employment, (2) he or she 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); Turpen v Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984). Once a complainant establishes prima facie case, the agency must show that it made a good faith effort to reasonably accommodate complainant’s religious beliefs and, if such proof fails, the agency must show that the alternative means of accommodation offered by complainant could not be granted without imposing an undue hardship on the agency’s operation. See Tiano v. Dillard Dept. Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corporation, 574 F.2d 897, 902 (7th Cir. 1978); Complainant v. United States Postal Service, EEOC Request No. 05890532 (October 25, 1989). Pursuant to 29 C.F.R. § 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. Undue hardship does not become a defense until the employer claims it as a defense to its duty to accommodate. Ansonia Board of Education v. Philbrook, 479 U.S. 60, 68-69 (1986). In order to show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977). The record indicates that at the relevant time, Complainant was a full-time City Carrier with nonscheduled days of Sundays and one other rotating day of the week. Complainant indicated that he had been employed by the Agency since 1994, and since 2014, he began observing (as part of his religion) the Sabbath which began at sundown on Friday and continued until sundown on Saturday. At the relevant time, Complainant requested to have a permanent schedule change to work Monday-Friday with Saturday/Sunday scheduled day off but was denied. 0120161510 3 The Agency indicated, and Complainant admitted, that he never worked on the Sabbath days. Specifically, the Agency stated that Complainant voluntarily bid on the job he held which had nonscheduled days of Sundays and one other rotating day of the week. Due to contractual bid obligations, Complainant’s Postmaster (P1) indicated that the Agency was unable to grant Complainant a permanent change of schedule. However, stated P1, Complainant was granted a temporary change of schedule to accommodate his Sabbath days. Complainant admitted receiving the temporary change to accommodate his religion. P1 stated that Complainant’s request was denied due to hardship to the unit to which he was assigned in the form of overtime desired list equitability and contractual violations for out of schedule work. P1 noted that management had to consider, on a weekly basis, the employees’ seniority, out of schedule time, overtime, and leave quotas. The Agency stated that Complainant was informed that he might want to bid on a job which had a permanent Monday – Friday schedule, with Saturday/Sunday day off as he sought. We note that there is no evidence and Complainant does not indicate that he did in fact bid on the job suggested by management. We further note that the Agency accommodated Complainant by allowing him to leave early on Fridays and by allowing him to take no lunch to properly observe the Sabbath. Complainant acknowledged this. After a review of the record, we find that Complainant failed to show that the Agency denied Complainant’s request for a religious accommodation. We find that Complainant’s religious practices were effectively accommodated and Complainant failed to avail himself of the opportunity for another accommodation by failing to bid on the position with the schedule he preferred. To the extent this is considered a claim of disparate treatment, after a review of the record, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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: 0120161510 4 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 0120161510 5 The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 22, 2018 Date Copy with citationCopy as parenthetical citation