01976934
09-27-2000
Melveice Harris and Joshua Armstrong v. Department of Transportation Appeal Nos. 01976745, 01976934 September 27, 2000 . Melveice Harris, Joshua Armstrong, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Melveice Harris and Joshua Armstrong v. Department of Transportation
Appeal Nos. 01976745, 01976934
September 27, 2000
.
Melveice Harris,
Joshua Armstrong,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal Nos. 01976745
01976934
Agency Nos. 1-95-1093
1-95-1021
DECISION
INTRODUCTION
Complainants timely initiated appeals to the Equal Employment Opportunity
Commission (Commission or EEOC) from two final agency decisions (FADs)
concerning their claims that the agency discriminated against them in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainants alleged discrimination on
the basis of religion (Christian), when the agency failed to grant them
a religious accommodation by denying them Sundays as a Regular Day Off
(RDO).<2> In accordance with 29 C.F.R. � 1614.405, the complainants'
appeals from the agency's final decisions in the above-entitled matters
have been accepted by the Commission.
ISSUE PRESENTED
Whether the agency made reasonable efforts to accommodate the
complainants' religious beliefs.
BACKGROUND
During the relevant time frame, complainant 1 (Complainant Harris/Appeal
No. 01976745/Agency No. 1-95-1093) and complainant 2 (Complainant
Armstrong/Appeal No. 01976934/Agency No. 1-95-1021) were employed as
Air Traffic Control Specialists at the agency's Northeast Philadelphia
(PNE) Air Traffic Control Tower.
Believing that they were victims of discrimination, both complainants
sought EEO counseling and, subsequently, filed formal EEO complaints.
Complainant 1 filed his formal complaint on August 3, 1994. Complainant
2 filed his formal complaint on August 9, 1994. At the conclusion of
the investigations, both complainants initially requested hearings
before an EEOC Administrative Judge and then, subsequently withdrew
their requests and asked that the agency issue final decisions on the
merits. Thereafter, the agency issued two separate FADs on August 15,
1997, finding no discrimination in both instances. It is from these
final agency decisions that the complainants now appeal. On appeal,
both complainants contend, inter alia, that the agency never put forth
sufficient efforts to provide an accommodation, such as soliciting
other employees who might have been interested in swapping schedules
or providing complainants the opportunity to work compensatory time in
order to utilize that time in exchange for the requested regular day off.
In its final decisions, the agency concluded that the complainants
had established prima facie cases of discrimination. Nevertheless,
the agency reasoned that the complainants had been offered reasonable
accommodations under the circumstances. The agency stated, in its
final decisions and in response to these appeals, that allowing approved
requests for Sunday leave to be subsequently converted to regular days
off satisfied the reasonable accommodation standard.
The FADs cited Transworld Airlines v. Hardison, 432 U.S. 63 (1977)
for the proposition that an employer is not required to violate a
collective bargaining agreement in its efforts to provide religious
accommodation. The agency further submitted that their obligations under
Title VII did not require them to choose the particular accommodation
requested by the complainants.
The record reveals that in May 1990, complainant 1 requested that he not
be required to work on Sundays. As a bargaining unit employee, his work
schedule request was submitted to the National Air Traffic Controllers
Association (NATCA) for approval. The NATCA union denied the request.
However, through a series of details and assignments between 1991
and 1994 wherein his work schedule was not subject to union approval,
complainant 1 was able to have his Sunday accommodation. In January
1994, when another controller lost his medical certification, thereby
losing his Full Performance Level (FPL), complainant 1 was placed back
on the normal work schedule rotation. With respect to complainant 2,
the record reveals that he was initially granted his June 1993 request
for religious accommodation until November 1993, when agency staffing
fell below an acceptable level and he was returned to the normal work
schedule rotation.
Complainant 1 requested a return to his Sunday accommodation in February
1994 when another controller qualified at the Full Performance Level.
Complainant 2 first inquired about a return to his Sunday accommodation
in March 1994, after the agency arrived at a level of 9 FPL controllers.
He submitted a formal request in August 1994 when the agency reached a
level of 10 FPL controllers. In both instances the agency informed the
complainants that the NATCA representative would have to agree to any
permanent work schedule changes. Subsequently, the union representative
denied both requests based on his belief that an accommodation would
violate the NATCA/agency collective bargaining agreement (agreement).
Under the agreement, the union and the agency negotiate the work schedules
based on seniority. As a solution to the complainants' requests, the
union representative suggested that alternatives to the complainants'
accommodation requests were already provided for in the agreement.
In this regard, it was suggested that the complainants request annual
leave, which, once granted, could be converted to a regular day off.
Additionally, it was suggested that the complainants could swap schedules
with their colleagues.<3> Our guidance suggests that employers and
unions must do more than suggest schedule swaps.
ANALYSIS AND FINDINGS
Where a complainant claims that the agency failed to reasonably
accommodate his religious beliefs, he must prove his claim under a
two-prong test upon which both the Commission and the courts rely.
Complainant must initially establish a prima facie case of discrimination
by demonstrating that (1) he has a bona fide religious belief that
conflicts with an employment requirement, (2) that he informed his
employer of this belief, and (3) that he was disciplined or adversely
affected for failing to comply with the conflicting employment
requirement. Turpen v. Missouri-Kansas-Texas Railroad Co., 736 F.2d
1022, 1026 (5th Cir. 1984). When courts are required to determine
whether a belief is religious in nature for the purposes of Title VII,
they generally avoid examining the tenets of religion. See Edwards
v. School Board of the City of Norton, Virginia, 483 F. Supp. 620, 625
(W.D. Va. 1980), vacated on other grounds, 658 F.2d 951 (4th Cir. 1981)
(Plaintiff, who was a member of the Worldwide Church of God, contended
that her faith required her to attend an eight-day religious convocation
for the Feast of Tabernacles during which she was obliged to abstain
from secular work. The court refused to rule on the particular tenets
of the plaintiff's religion and found that the plaintiff's claim was
religious in nature.)
Once the prima facie case is established, the burden shifts to the
agency to demonstrate that it cannot reasonably accommodate the
complainants' religious beliefs without incurring an undue hardship
upon its operations. Title VII, 701(j), 42 U.S.C. 2000e(j); 29
C.F.R. 1605.2(c)(1); Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th
Cir. 1987). The reasonableness of an employer's attempts at accommodation
must be determined on a case-by-case basis. Redmond v. GAF Corp., 574 F.2d
897, 902-903 (7th Cir. 1978). Accommodations for religious practices
include, but are not limited to voluntary substitutions or swaps,
flexible scheduling, or lateral transfer and change of job assignments. 29
C.F.R. 1605.2(d). Any reasonable accommodation proffered by the employer
is sufficient to meet its accommodation obligation. Ansonia Board of
Education v. Philbrook, 479 U.S. 60, 68 (1986).
The issue of undue hardship comes into play only where the employer
claims that it is unable to offer any reasonable accommodation without
such hardship. Ansonia, 479 U.S. at 69. Undue hardship may be shown where
the costs of the proffered accommodation are more than de minimis or where
such accommodation would deny another employee his job shift preference
or conflict with a valid collective bargaining agreement. Hardison,
432 U.S. at 79-85 (1977); 29 C.F.R. 1605.2(e).
In the instant matter, we find that there is sufficient evidence to
show that the complainants established a prima facie case of religious
discrimination. The agency did not contest the complainants' claims that
they had bona fide religious beliefs that conflicted with the requirement
to work on Sundays. Moreover, there is sufficient evidence in the record
to support the complainants' claims of bona fide religious beliefs.
Additionally, there is no dispute as to whether the agency was informed
by the complainants of their desire to have Sundays as a regular day
off for religious observance. Finally, we find that complainants were
sufficiently adversely affected by the agency's scheduling requirements.
While it might be argued that as long as the complainants were able
to secure Sunday as a day off there was no adverse effect on the
complainants, we disagree. We believe that the more reasonable inference
is that the uncertainty of the availability of the requested off day for
the complainants herein presented a sufficiently adverse situation for
purposes of the prima facie requirement. In any event, the agency did
not contest the establishment of prima facie cases and we will assume
that prima facie cases have been established.
As the complainants established prima facie cases of failure to
accommodate religious beliefs, the burden shifts to the agency to
demonstrate that it cannot reasonably accommodate the complainants'
religious beliefs without incurring an undue hardship upon its operations.
We find that the agency failed to meet this burden. In this regard, we
are not persuaded that the agency made a reasonable effort to accommodate
the complainants' religious beliefs, or that to do so would have imposed
an undue hardship upon the agency's operations. The agency submits
that its and the union's suggestion that approved leave requests could
be converted to regular days off solves its accommodation obligation.
We disagree. This accommodation suggestion represents a patchwork
approach which makes no attempt to permanently resolve the underlying
scheduling conflict. While a permanent solution is not a requirement
of the agency's accommodation obligations, reasonable efforts might
have afforded a more desirable and lasting solution for all parties.
We note that the agency stated that the complainants could have done a
schedule swap. Yet, the agency made no showing that it made inquiries
into which of the complainants' colleagues might have been interested
in a swap.
Furthermore, we note the complainants' contentions on appeal that
the collective bargaining agreement provided that compensatory time
was a relevant consideration when exploring accommodation options.
We find no evidence that the opportunity to work compensatory time as a
flexible scheduling alternative was even presented to the complainants.
See 5 U.S.C. � 5550a. While the agency might argue that its offers to
permit the complainants to use annual leave, which could be converted to
a regular day off, satisfies its accommodation obligation, we disagree.
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. See 29 C.F.R. � 1605.2(c)(2)(ii). In the
instant matter, flexible scheduling through the use of compensatory time
would have disadvantaged the complainants less than forcing them to use
annual leave. Moreover, nothing in the agency's suggestion concerning
the conversion of annual leave guaranteed that the annual leave would in
fact be converted to a regular day off. Finally, we note that the agency
made no showing that the least effort to explore these alternatives
would have presented an undue hardship.
While, as the agency argues, granting all of the requests for Sundays as
a regular day off may have left the facility short staffed and therefore
the agency would have incurred an undue hardship, the agency failed
to show that it would have to bear this undue hardship, or any other,
in resolving the complainants' scheduling conflicts.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, we
find that the complainants were discriminated against when the agency
failed to grant them a religious accommodation by denying them Sundays
as a Regular Day Off. It is the decision of the Commission to REVERSE
the final agency decisions finding no discrimination. To remedy its
past discrimination against the complainants, the agency shall comply
with the directions of the following Order.
ORDER
(1) The agency shall immediately restore any annual leave that
the complainants have been forced to use to satisfy their religious
obligations. The agency shall determine the appropriate amount of annual
leave benefits due the complainants, pursuant to 29 C.F.R. � 1614.501,
no later than sixty days after the date this decision becomes final.
The complainants shall cooperate in the agency's efforts to compute
the amount of benefits due, and shall provide all relevant information
requested by the agency. If there is a dispute regarding the exact
amount of leave to restore, the agency shall restore to the complainants
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainants
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
�Implementation of the Commission's Decision.�
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation of the
agency's calculation of benefits due the complainants, including evidence
that all corrective action has been implemented.
(2) The agency shall make an effort to reasonably accommodate, on short
and long term bases, the complainants' religious beliefs in accordance
with EEOC guidelines at 29 C.F.R � 1605.2., including, but not limited
to, exploration of the use of compensatory time as a flexible scheduling
alternative.
(3) The agency shall provide training to the responsible management and
union officials, and all other supervisors at the Northeast Philadelphia
Air Traffic Control Tower facility, as to the current state of the
law on employment discrimination, and particularly the �Guidelines on
Discrimination Because of Religion� contained at EEOC Regulation 29
C.F.R � 1605.2.
POSTING ORDER (G0900)
The agency is ordered to post at its Northeast Philadelphia Air Traffic
Control Tower facility copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
September 27, 2000
Date
Carlton
M.
Hadden,
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
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United
States Equal Employment Opportunity Commission dated
which found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Department of Transportation, Federal Aviation Administration,
Northeast Philadelphia Air Traffic Control Tower (PNE), supports and
will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The PNE, has been found to have discriminated on the basis of religion
(Christian) when the agency failed to reasonably accommodate two
complainants that had requested Sundays as a regular day off. The PNE
has been ordered to take corrective action in the form of restoration
of any annual leave that the complainants have been forced to used to
satisfy their religious obligations, making an effort to continue to
provide a reasonable accommodation to the individuals discriminated
against on short and long term bases and training for the responsible
officials. The PNE will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all Federal equal employment opportunity laws and will
not retaliate against employees who file EEO complaints.
The PNE will not in any manner restrain, interfere, coerce, or retaliate
against any individual who exercises his or her right to oppose practices
made unlawful by, or who participates in proceedings pursuant to,
Federal equal employment opportunity law.
Date Posted: _____________________ _______________________
Posting Expires: _________________
29 C.F.R. � 1614
1On 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.
2The Commission notes that the agency filed a Motion To Consolidate
the above appeals, dated, October 15, 1997. We agree with the agency
that the claims herein are substantially the same and arise from the
same relevant set of facts. Accordingly, the Commission exercises its
discretion to consolidate the appeals. See 29 C.F.R. � 1614.606.
3We note that a third Air Traffic Control Specialist requested Sundays
as a regular day off as a religious accommodation. However, this employee
did not pursue the EEO complaint process.