[Redacted], Shellie T., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 14, 2021Appeal No. 2020000771 (E.E.O.C. Apr. 14, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shellie T.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000771 Hearing No. 480-2016-00776X Agency No. 200P-0691-2015105222 DECISION On October 5, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 26, 2019 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 period at issue, Complainant worked as a Medical Support Assistant at the Agency’s Veterans Affairs Medical Center (VAMC), Greater Los Angeles Health Care System in Los Angeles, California. On September 29, 2015, Complainant filed the instant formal. Complainant claimed that the Agency discriminated against her based on religion (Jehovah's Witness) when, on August 10, 2015, her supervisor changed her tour of duty to 7:30 a.m. - 4:00 p.m., causing her to be unable to attend her weekly religious meetings. Complainant’s previous tour was 7:00 a.m. - 3:30 p.m. After an investigation, Complainant was provided a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). 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 2020000771 Complainant sought to amend her complaint by including disability as a basis (insomnia which caused her to be tired when driving to work). Thereafter, the AJ denied her request because Complainant had not raised the basis during her EEO counseling or during the investigation.2 As Complainant has not challenged this decision on appeal, we decline to address this issue here. The AJ then issue the parties a notice of intent to issue a decision by summary judgment. After giving the parties an opportunity to respond, the AJ issued a decision by summary judgment in favor of the Agency based on the evidence developed during the investigation. The AJ first found that the evidence supported a finding that Complainant had sincerely held beliefs in the religion she practices and had been a member of a congregation for ten years at the time of the investigation. In her sworn statement, Complainant stated that she believed the new tour of duty was religious discrimination because it prevented her from being able to attend weekly religious meetings held at 7:00 p.m.3 Complaint testified that since her tour was changed, she has used 30 minutes of leave each week to attend religious services. According to the Business Manager, also Complainant’s supervisor, all employees’ tours were examined, and changes were made to improve coverage to answer phones, assist providers, and to be available to provide better customer service to veterans. The change of duty tour was done across all sections and other employees were affected as well because it made operational sense to have employees be at work during the core times to meet the veterans’ needs. At the time, Complainant started at 7:00 a.m. and her tour was changed by 30 minutes to 7:30 a.m. - 4:00 p.m. He noted that the office did not open until 7:30 a.m. so there was no need for Complainant to start work before that time. It was undisputed that, after the changes were made, no other employee was allowed to start prior to 7:30 a.m. First, the AJ found that Complainant’s request for accommodation only addressed one day per week as the prayer meetings were held on Thursday evenings. As such, the AJ found that Complainant’s request to change her assigned tour of duty for the whole work week was not needed to accommodate her Thursday religious practices. More importantly, the AJ determined that there was inadequate evidence to support the necessity for Complainant to leave work on Thursdays by 3:30 p.m. rather than 4:00 p.m. in order to reach her congregation by 7:00 p.m. According to Complainant, she had to go home and then go to the meeting. The AJ found, however, that no legitimate reason was provided for why she could not go directly from work if needed. 2 On November 17, 2015, the Agency had sent Complainant a letter memorializing her single accepted claim based on religion and instructed her to notify it within seven calendar days of receipt if she believed the accepted claim was improperly formulated, incorrect or incomplete. Complainant did not respond and during the investigation itself only asserted religion as the basis of the alleged discrimination. 3 We note that the record contains an affidavit from Complainant’s minister indicating that the service began at 7:30 p.m. 3 2020000771 Based on this evidence, the AJ concluded that Complainant failed to establish her claim of discrimination based on religion. The Agency fully implemented the AJ's decision in its final order. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. There are no genuine issues of material fact or any credibility issues which required a hearing and therefore, the AJ’s issuance of summary judgment was appropriate. When a party moves for summary judgment, such as the Agency did here, the non-moving party’s opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. Complainant did not show that there was a genuine issue of material fact in this case, and her arguments on appeal do not undermine the AJ’s determination that, even assuming all facts in her favor, a reasonable fact finder could not find in her favor, as explained below. 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) she has a bona fide religious belief, the practice of which conflicted with employment; (2) she informed the Agency of this belief and conflict; and (2) the Agency nevertheless enforced its requirement against complainant. 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). Once the prima facie case is established, the burden shifts to the agency to demonstrate that it cannot reasonably accommodate complainant without incurring undue hardship, or that complainant has been accommodated. Title VII, 701(j), 42 U.S.C. § 2000e(j); 29 C.F.R. § 1605.2(c)(1); Protos v. Volkswagen of America, Inc. 797 F.2d 129, 133 (3rd Cir. 1986). 4 2020000771 The Supreme Court has found that accommodations which create more than de minimis monetary or efficiency costs cause undue hardship. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). A showing of undue hardship cannot be merely hypothetical, but must instead include evidence of an actual imposition on coworkers or disruption of work schedules or routines. Tooley v. Martin Marietta, 648 F.2d 519, 521 (4th Cir. 1987). Applying this analysis to the instant case, we find that the AJ properly found that Complainant did not establish a prima facie case of religion discrimination. Complainant has not shown that the Agency wrongfully failed to reasonably accommodate her religious beliefs. In so doing, we note the salient undisputed facts addressed by the AJ. To wit, Complainant failed to adequately explain why she had to leave work by 3:30 p.m. to join the congregation three and one-half hours later, at 7:00 p.m. Moreover, we note that Complainant’s minister stated in a statement that, “our meeting[s] are on Thursday at 7:30 p.m.” The AJ was unpersuaded by Complainant’s assertion that she had to go home prior to the religious meeting, instead of going directly to the meeting from the work site. Finally, like the AJ, we note that Complainant conceded that the Agency was approving leave when she requested it to depart one half-hour early to attend her religious meetings, which already constituted an accommodation to her religious practices. After careful consideration of the evidence of record, we concur that Complainant has not established that she was denied religious accommodation in violation of Title VII. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, we AFFIRM the Agency’s final order because the AJ’s issuance of a decision without a hearing was appropriate and a preponderance of the evidence does not establish that discrimination occurred. 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. 5 2020000771 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). 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. 6 2020000771 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 April 14, 2021 Date Copy with citationCopy as parenthetical citation