U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dino V.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020003735 Hearing No. 480-2017-00474X Agency No. HS-TSA-26163-2016 DECISION On June 11, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 15, 2020 final order concerning an equal employment opportunity (EEO) 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. BACKGROUND During the relevant period, Complainant worked as a Lead Transportation Security Officer (LTSO) assigned at Honolulu International Airport in Honolulu, Hawaii.2 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. 2 The record reflects that on July 7, 2018, Complainant resigned from Agency employment. 2020003735 2 On July 19, 2016, Complainant filed a formal complaint. Complainant claimed that the Agency subjected him to discriminatory harassment based on religion (Seventh Day Adventist) and in reprisal for prior EEO activity (opposition to discrimination) when: 1. On March 11, 2016, Complainant received a letter from management that stated his request for a religion accommodation was denied; 2. On August 7, 2016, Complainant was issued a no-contact notice by management; 3. On August 9, 2016, Complainant received a suspension from management; and 4. On August 24, 2016, Complainant received a Proposal of Removal from management. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. Complainant responded to the Motion. On April 10, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. In its May 15, 2020 final order, the Agency adopted the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a 2020003735 3 dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Denial of Religious Accommodation Regarding claim 1, Complainant asserted that on March 11, 2016, he received a letter from management that denied his request for a religion accommodation not to work his Sabbath (sunset Friday to sunset Saturday). According to management witnesses, under the Agency’s collective bargaining agreement (CBA) bidding for schedule was based on as seniority system. Because of Complainant’s seniority level (he was close to the bottom of the list), he was unable to obtain a schedule where he did not work Saturdays. As a result, Complainant submitted a request for religious accommodation in November 2015, and again in January 2016 to the Federal Security Director (FSD). On January 16, 2016, the FSD issued an Agency-wide memorandum informing employees that the Agency was unable to provide scheduling-related religious accommodation in contradiction to the Agency’s CBA, Article 4, Section D, requiring that the shift and annual leave bid process be based on seniority. The January 21 memorandum instead offered the following possible accommodations: (1) a voluntary schedule/shift swap, either long-term or on a particular occasion, or (2) annual leave on a first come, first serve basis. On March 10, 2016, Complainant met with the FSD regarding his request and on March 11, 2016, his request was denied via a letter. The March 11, 2016 letter informed Complainant that the Agency could not accommodate his scheduling request, but that he could pursue a shift swap or that he could request annual leave on a first come, first serve basis. The FSD also granted Complainant a temporary adjustment for the pay period to give him time to shift swap, seek leave or make other arrangements as necessary. 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 failure to provide a religious accommodation requires an employee to demonstrate that: (1) he has a bona fide religious belief, the practice of which conflicted with their employment; (2) he informed the agency of this belief and conflict; and (3) the agency nevertheless enforced its requirement against the employee. Heller v. EBB Auto Co., 8 F.3rd 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984). Here, we find that Complainant has established a prima facie case of denial of religious accommodation. Complainant is a Seventh Day Adventist who observes the Sabbath which he defined as from sunset on Friday until sunset on Saturday. Complainant sought a religious accommodation beginning in November 2015. His request was denied 2020003735 4 because, under the terms of the Agency’s collective bargaining agreement, he did not have sufficient seniority to have a shift with the requested time off. Once an employee establishes a 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 proffered by the employee could not be granted without imposing an undue hardship on the Agency's operations. See Tiano v. Dillard Dept. Stores, Inc., 139 F.3rd 679, 681 (9th Cir. 1998); Redmond v. GAF Corp., 574 F.2d 897, 902(7th Cir. 1978); Complainant v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989). Pursuant to 29 C.F.R § 1605.2, 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. The Commission has long held that where, as here, religious accommodation would violate the terms of a collective bargaining agreement, the agency must still make a good faith effort to determine whether permissible alternatives for accommodation exist. See Hudson v. Department of Transportation, Appeal No. 01860309, (August 10, 1987); Colgan v. United States Postal Service, EEOC Appeal No. 01965264 (June 9, 1998). In this case, we conclude that the Agency has made a good faith effort to provide Complainant with reasonable alternatives for accommodating his religious observance of the Sabbath. Agency management specifically offered Complainant the ability to swap shifts with other employees on either a long-term or case-by-case basis. He also was offered the ability to take approved annual leave in order not to work on his Sabbath. The FSD granted Complainant a temporary adjustment to give him time to shift swap, seek leave or make other arrangements as necessary. In sum, we affirm the AJ’s conclusion that the Agency made a good faith effort to provide Complainant with reasonable alternatives to accommodating his religious beliefs when granting his request to permanently change his shift would have violated the seniority terms of the collective bargaining agreement. Disparate Treatment A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The undisputed facts fully support the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. 2020003735 5 The AJ noted that claims 2 - 4 arise from an on-duty, August 3, 2016 incident between Complainant and a porter who was an independent contractor of an airline. On that day, Complainant and the porter were involved in a heated exchange regarding a machine. On August 7, 2016, management issued a No-Contact Order to Complainant, ordering him to have no contact with the porter. On August 9, 2016, the Assistant Federal Security Director (AFSD) placed Complainant on indefinite supervision for physically threatening the porter, and to allow the Agency to investigate the August 3, 2016 incident. The record contains a copy of the Notice of Indefinite Suspension dated August 9, 2016, in which the AFSD notified Complainant that he has decided to suspend him from duty, and without pay for an indefinite period. He explained that management is conducting an investigation concerning the August 3, 2016 incident in which Complainant engaged in a threatening conduct towards a porter by communicating a direct threat of physical harm. In addition, Complainant used profanity towards to the porter and that he would take him outside and beat him up. AFSD stated that if this proves to be true, under the TSA Table of Penalties, removal would be the likely outcome. On August 24, 2016, Complainant received a Proposal of Removal from management. Specifically, the Transportation Security Manager proposed that Complainant be removed from Agency employment for threatening conduct, failure to color directions, lack of candor, and failure to report. On October 16, 2016, the AFSD issued a Notice of Decision in which he sustained the charges of threatening conduct, failure to follow instructions, lack of candor, and failure to report, and sustained the removal action.3 In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that discriminatory animus because of his religion and prior EEO activity played any role whatsoever in these matters. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment finding no discrimination. 3 The record reflects that on January 23, 2017, the TSA Office of Professional Responsibility Appellate Board mitigated Complainant’s removal to a 5-Calendar Day Suspension. 2020003735 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020003735 7 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. 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 October 18, 2021 Date
