U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kenneth M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020001885 Hearing No. 410-2017-00448X Agency No. HS-TSA-27098-2016 DECISION On January 7, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 3, 2019, final decision concerning his 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. At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer, SV-1802-E Band, at the Hartsfield-Jackson Atlanta International Airport, (ATL) located in Atlanta, Georgia. Complainant’s religion is Seventh-day Adventist and he observes Sabbath from sundown Friday until sundown Saturday. Complainant transferred to ATL from John F. Kennedy International Airport in Queens, New York in December 2015. Complainant was assigned to a shift with Wednesdays and Thursdays as regular days off. In March 2016, Complainant requested a religious accommodation of a schedule with Saturdays off. On April 4, 2016, the Assistant Federal Security Director for Screening (International) (AFSD-1) informed Complainant that he 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. 2020001885 2 could seek a voluntary schedule or shift trade or request annual leave, compensatory time, or leave without pay. The Agency conducts shift bids twice a year. Bids with Fridays, Saturdays, and Sundays as regular days off were often first claimed by employees with higher seniority. During the August 2016 bidding process, Complainant did not obtain a shift with Saturdays off. Complainant again requested a schedule change with Saturdays off as a religious accommodation. The Assistant Federal Security Director for Screening (Domestic) (AFSD-2) provided Complainant the same options as previously offered. Complainant requested religious accommodation again in February 2017, and AFSD-2 reiterated the options that he and AFSD-1 had previously offered. Complainant used LWOP, annual leave, and shift-trades for his religious observation needs. On September 19, 2016, Complainant’s supervisor (STSO-1) issued Complainant a leave restriction letter based on a leave audit and due to what she believed was a pattern of continuing attendance and leave issues, including excessive call-outs and a near zero leave balance. The leave restriction letter informed Complainant of the procedures for requesting leave for medical appointments or for unscheduled absences. From January 1, 2017 - March 13, 2017, Complainant called out from his scheduled shift 15 times. As a result, on March 28, 2017, the Transportation Security Manager (TSM) issued Complainant a letter of counseling. Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of religion (Seventh-day Adventist) and reprisal (prior EEO activity) when: (1) on or about March 18, 2016, and August 12, 2016, management denied Complainant’s request for a religious accommodation; (2) in September 2016, management placed Complainant on leave restriction for maintaining a zero balance of leave; (3) on March 27, 2017, management denied Complainant’s request for a religious accommodation; (4) on March 28, 2017, management issued Complainant a letter of counseling for taking unauthorized absences from January 1-March 13, 2017. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that management subjected him to discrimination or reprisal as alleged. The instant appeal followed. 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, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review 2020001885 3 “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”). Denial of Religious Accommodation Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create 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. Melania U. v. U.S. Postal Serv., EEOC Appeal No. 0120180092 (May 15, 2019); 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). Assuming that Complainant established a prima facie case, the Agency must show that it made a good faith effort to reasonably accommodate the employee'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. Melania U., supra citing Tiano v. Dillard Dept. Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corp., 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989). 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). Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer's business. EEOC Compliance Manual, Section 12: Religious Discrimination, EEOC No. 915.003 (July 22, 2008). An agency is not required to provide an employee's preferred accommodation if there is more than one effective alternative to choose from. Complainant v. Dep't of the Interior, EEOC Appeal No. 0120113027 (April 1, 2015) citing Hyde v. Dep't of Homeland Sec., EEOC Appeal No. 0720110003 n.1 (Jan. 6, 2012). 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. Melania U., supra. Undue hardship does not become a defense until the employer claims it as a defense to its duty to accommodate. Ansonia Bd. of Education v. Philbrook, 479 U.S. 60, 68-69 (1986). After reviewing the evidentiary record as a whole, and for the reasons set forth above, we find that the Agency satisfied its obligation under Title VII to provide Complainant with an accommodation for his religious practices. Here, the record reveals that after Complainant 2020001885 4 requested religious accommodation of a schedule change with Saturdays off, Agency management informed Complainant that he could seek a voluntary schedule trade or shift trade or he could request annual leave, leave without pay, or compensatory time. Management could not provide Complainant with a permanent shift change with Saturdays off due to the collective bargaining agreement. Agency management informed Complainant of the Agency’s electronic system to seek schedule and shift changes; however, there is no evidence indicating that Complainant pursued a schedule change. In the alternative, Agency management granted Complainant’s leave and leave without pay requests for religious observances. We therefore find that the Agency did not deny Complainant religious accommodation in violation of Title VII. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Here, we agree that the record does not support the finding that the legitimate, non- discriminatory explanations offered by management for its actions were pretextual or otherwise motivated by discriminatory or retaliatory animus. With regard to Complainant’s schedule change requests for religious observances, as discussed above, management denied his requests because granting the requests would have violated the collective bargaining agreement. The Agency provided Complainant alternative accommodations in the form of voluntary shift/schedule swaps and approved leave. As to claim (2), management placed Complainant on sick leave restriction because Complainant consistently arrived at work late and took unscheduled absences. Complainant’s supervisor (STSO-2) affirmed that Complainant offered various reasons for his absences, including being sick, invoking Family and Medical Leave Act (FMLA) leave, and Office of Workers’ Compensation (OWCP) leave. STSO-2 stated that she checked and Complainant had nothing on file with respect to OWCP and his FMLA had not yet been approved. Finally, TSM issued Complainant a letter of counseling regarding excessive absences after Complainant called out from his scheduled shift 15 times between January and March 2017. TSM added that she would approve any leave Complainant needed; however, the issue was Complainant’s pattern of not showing up for work on Fridays and Sundays in conjunction with his Saturdays off. The letter of counseling was not a disciplinary action. We note that Complainant chose to withdraw his request for a hearing; therefore, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing and can only evaluate the facts based on the weight of the evidence presented. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the 2020001885 5 basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination or reprisal as alleged. Hostile Work Environment Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment with respect to the matters herein, the Commission finds that a finding of a hostile work environment is precluded by the Commission's determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, the Commission finds that Complainant has not established that he was subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the EEOC to AFFIRM the Agency’s final decision because the preponderance of the evidence does not establish unlawful discrimination/retaliation or harassment as alleged by Complainant. 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 2020001885 6 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). 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. 2020001885 7 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 August 31, 2021 Date
