0120070386
03-31-2009
Richard Thompson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Richard Thompson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070386
Hearing No. 240200600034X
Agency No. 200L05962005102588
DECISION
On October 25, 2006, complainant filed an appeal from the agency's
September 26, 2006 final order concerning his equal employment opportunity
(EEO) complaint. Complainant alleged 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether the Administrative Judge properly found that complainant failed to
establish his claim of religious discrimination (failure to accommodate).
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Utility Systems Operator within the Engineering Department
(Plant Operations) at the agency's Lexington, Kentucky Medical
Center. This facility is an acute-care facility. The record shows that
complainant's duties include the operation, maintenance, and repair of
the chillers and boilers for the facility and repairs to the plumbing,
heating, and air-conditioning systems. Complainant's position involves
working a rotating shift to ensure around-the-clock coverage for the
facility. All Utility Systems Operators are expected to work rotating
shifts providing coverage 24 hours a day, seven days per week, 365
days per year. This rotating arrangement is governed by a collective
bargaining agreement. Under the rotation, workers work a limited number
of shifts, with six workers on call.
The record established that complainant's religious beliefs conflicted
with his work schedule because his beliefs necessitated his attending
church services during the week and on Sundays. He notified the agency
that there was a conflict and requested accommodation to attend religious
services and activities to teach and preach the gospel on Wednesday and
Thursday evenings and Sundays. Ideally, complainant sought reassignment
or a lateral transfer to a position within the Engineering Department.
There were no vacant, funded positions within the Engineering Department.
The agency did not grant complainant's request for a lateral reassignment
to another position, but permitted complainant to work fewer shifts and
offered complainant an alternative position, at a lower salary, as a Bus
Driver. The record shows that the agency granted complainant's annual
leave requests and authorized him additional leave, which required a
schedule change for another employee to work as a replacement; and that
his supervisor sent an e-mail to all employees seeking substitutes so
that complainant could be off if any employee were willing to swap shifts
with him.
Complainant declined the offer to switch to a Bus Driver position
and requested that the agency "open up" a position for him within the
Engineering Department. The alleged responsible management official
(RMO), who was complainant's supervisor, told complainant that he could
not create a position for complainant. The agency presented testimony at
the hearing that the Bus Driver position was the only available position
that was vacant and funded, and for which complainant was qualified. The
Bus Driver position eliminated the conflict because it would permit
complainant to work the day shift, Monday through Friday. Complainant
declined the position because he was not willing to accept the drop
in salary and grade. Complainant believed that he had been promised
a position by another official, who died before the position was
created. The record further shows that complainant was not qualified at
the journeyman level in any other trade within the Engineering Department.
The positions are covered by a collective bargaining agreement.
The RMO testified that he needed to staff the medical center with a
sufficient number of Utility System Operators and that it would be a
hardship to remove complainant from shift work. The record shows that
the agency did grant complainant's requests for leave and canvassed
employees for substitutes.
On June 13, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of religion (non-denominational)
when the agency failed to accommodate his religious beliefs:
1. commencing on or about February 13, 2004, and continuing, when the
agency did not grant complainant's request to work day shifts on Wednesday
with Sundays off; and
2. on or about April 29, 2005, when the agency denied complainant's
request for reassignment within the Engineering Department or to the
Leestown Division.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on April 18, 2006 and
issued a decision on September 7, 2006.
In her decision, the AJ found that the agency presented sufficient
evidence to establish that it had offered complainant reasonable
accommodation for his religious beliefs. Specifically, the AJ found
that the offer of reassignment to a Bus Driver position was a reasonable
accommodation because it completely eliminated the religious conflict and
was the only vacant, funded position available for which complainant
was qualified. The AJ further found that the agency accommodated
complainant's choice of shifts at the beginning of the leave year,
granted his annual leave requests, and authorized additional leave which
required a schedule change for another employee to work as a replacement,
where feasible; and that his supervisor sent an e-mail to all employees
seeking substitutes so that complainant could be off if any employee
were willing to swap shifts.
The AJ found that the agency presented persuasive evidence that it
could not simply remove complainant from shift work, and further found
that granting complainant's preferred accommodation would have created
an undue hardship. Allowing the accommodation would negatively impact
the agency's operations which required coverage with a Utility Systems
Operator 24 hours a day. The Utility Systems Operator answered critical
alarms such as the fire alarm and plumbing needs. Moreover, granting
complainant a permanent exception would violate collective bargaining
agreement provisions based on seniority which required that employees
be treated fairly and equitably, and that Utility Systems Operators
work a rotating schedule with no double shifts. The AJ found that the
testimony supported the agency's contention that reassignment was not
an option because, although there was a vacant Machinist position,
the position was not a funded vacancy authorized to be filled, and
complainant was not qualified at the journeyman level in any other trade
within the Engineering Department other than Utility Systems Operator.
Accordingly, the AJ found no discrimination. The agency subsequently
issued a final order adopting the AJ's finding.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ and agency ignored complainant's
testimony that he had been promised a lateral reassignment, and that
reassignment to the Bus Driver position but would require complainant
to lose over $6,000 per year.
The agency maintains there was no agreement to laterally reassign
complainant, and that it offered complainant a reasonable accommodation,
which he declined.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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 conflicted with his or
her 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 complainant 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 complainant could not be granted without imposing an undue hardship
on the agency's operations. 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); Cardona 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" provide that 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).
In the instant case, we find that the substantial evidence of record
supports the AJ's decision. See Al-Hilal v. United States Postal Service,
EEOC Appeal No. 0120083944 (February 4, 2009) (granting judgment to
agency where agency showed that request for leave could not be granted
without imposing undue hardship on its operations). Specifically, we
note that the record shows that the agency accommodated complainant's
requests for shifts off to the extent that it could, despite the need
to provide around-the-clock coverage for its acute care medical facility.
As noted above, the agency canvassed for substitutes, granted
complainant's request for leave, offered an alternative position that
would have permitted complainant more time, adjusted the schedules and
offered a transfer to a another position. The agency permitted voluntary
substitutes and changes in complainant's work schedule. The agency
presented evidence of the hardship of granting the accommodation preferred
by complainant. The record shows that there was no vacant, authorized
position available. The record also includes testimony referencing the
conflicts in seniority rights guaranteed by the collective bargaining
agreement, and evidence of an actual imposition on coworkers and the
disruption of other employees' work schedules or routines. Consequently,
the record supports the AJ's finding that the agency demonstrated a good
faith effort to accommodate complainant, that complainant's request
for a permanent change in shifts or reassignment could not be granted
without imposing an undue hardship on the agency's operations.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions
on appeal, including those not specifically addressed herein, it is the
decision of the Commission to AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 tends 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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 31, 2009
Date
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0120070386
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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