01982669
10-05-1999
Sandra D. Green, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Area), Agency.
Sandra D. Green, )
Appellant, )
) Appeal No. 01982669
v. ) Agency No. 4-H-330-1638-94
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Area), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
discrimination based on race (Black), religion (Christian), and sex
(female), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e, et seq., when her light duty request was
denied on June 6, 1994. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
AFFIRMED AS CLARIFIED.
The record reveals that during the relevant time, appellant was employed
as a Letter Carrier at the agency's New River Post Office in Fort
Lauderdale, Florida. Appellant requested light duty on June 6, 1994,
due to an on-the-job injury which caused a recurrence of lower back and
left side pain, which prevented her from heavy lifting. Appellant's light
duty request was denied, and she was placed on leave without pay status
from June 6-29, 1994. On August 2, 1994, appellant became aware that
another Letter Carrier (LC1) (Caucasian, male) had been permitted to case
mail for several days rather than perform his delivery route while he
was recovering from injuries sustained in a car accident. Believing she
was a victim of discrimination as referenced above, appellant sought EEO
counseling and, subsequently, filed a complaint on December 22, 1994.
At the conclusion of the investigation, appellant initially requested a
hearing before an Administrative Judge of the Equal Employment Opportunity
Commission, but subsequently withdrew her request and the agency issued
its FAD.
The FAD concluded that appellant failed to establish a prima facie case
of race or sex discrimination because she presented no evidence that
similarly situated individuals not in her protected classes were treated
differently under similar circumstances. The FAD concluded that LC1
was not a similarly situated employee to whom appellant could compare
herself, because the evidence established that the Delivery Supervisor
(DS) granted LC1's light duty request, whereas it was the Station Manager
(SM) who denied appellant's light duty request two months earlier.<1>
Applying the legal standard for religious accommodation claims rather
than disparate treatment claims, the FAD also found that appellant had
not established a prima facie case of discrimination based on religion.
Additionally, the FAD concluded that even assuming appellant had
established a prima facie case of discrimination, SM had articulated a
legitimate non-discriminatory reason for denying her light duty request
by attesting that he denied appellant's light duty request because of
her doctor's information about the severity of her lifting restrictions.
Record of Investigation (ROI) Affidavit C. The FAD concluded that
appellant failed to demonstrate by a preponderance of the evidence that
this proffered explanation was pretextual and that the real reason for
denial of her light duty request was discrimination.
Appellant has not submitted any contentions on appeal. The agency
requests that we affirm its FAD.
We note at the outset that the agency applied the incorrect standard
for determining whether appellant established a prima facie case of
discrimination based on religion. The FAD stated that in order to
establish a prima facie case of religious discrimination, appellant
was required to demonstrate that she holds a bona fide belief that
compliance with an employment requirement will violate her sincerely held
religious belief, that her employer is aware of this conflict, and that
she was adversely affected for refusing to comply with the employment
requirement. These are the elements of the prima facie case for religious
discrimination based on the denial of a requested religious accommodation.
EEOC v. United Parcel Service, 94 F.3d 314, 317 (7th Cir. 1996); Protos
v. Volkswagen of America, Inc., 797 F.2d 129, 133 (3rd Cir. 1986); see
also 29 C.F.R. �1605.1.<2> This standard is inapplicable where, as here,
the claim is one of disparate treatment based on religion.
In order to establish a prima facie case of disparate treatment based
on religion, a complainant must establish that: (1) she is a member
of a statutorily protected class; (2) she was subjected to an adverse
employment action; and (3) similarly- situated employees outside her
protected class were treated more favorably in like circumstances.
See Behar v. United States Postal Service, EEOC Request No. 05940787
(June 2, 1995). As with claims of discrimination on bases other than
religion, the absence of proof regarding differential treatment of
similarly-situated employees outside complainant's protected class in
some of the elements may be overcome if complainant sets forth some
other evidence of agency actions from which, if they are not otherwise
explained, an inference of discrimination can be drawn. Id. (citing Jatoi
v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d 1214, 1219 (5th Cir. 1987)).
Once the complainant establishes a prima facie case of discrimination, the
burden of production shifts to the employer to articulate a legitimate,
non-discriminatory reason for the challenged action. If the employer
satisfies this burden of production, the complainant, in order to prevail,
must demonstrate by a preponderance of the evidence that the proffered
explanation is a pretext for discrimination. McDonnell Douglas v. Green,
411 U.S. 792 (1973).
Nevertheless, after a careful review of the record, and applying
the proper legal standards, the Commission agrees with the agency's
conclusion that appellant failed to establish a prima facie case of
discrimination based on race, sex, or religion. In reaching this
conclusion, we note that appellant failed to raise an inference of
discrimination, either by comparison to similarly situated employees of
a different race, sex, or religion who were treated differently, or by
other evidence. In addition to the fact that the light duty requests
by LC1 and appellant were handled by two different decisionmakers,
appellant and LC1 are not similarly situated because LC1 was assigned
to a regular route whereas appellant was a relief carrier, and because
LC1 sought light duty for several days whereas appellant sought light
duty for approximately three weeks. See ROI Affidavit A. In order for
comparative employees to be considered similarly situated, all relevant
aspects of appellant's situation must be nearly identical to those
of the comparative employees. Tolar v. United States Postal Service,
EEOC Appeal No. 01965083 (December 16, 1998) (citing O'Neil v. United
States Postal Service, EEOC Request No. 05910490 (July 23, 1991)).
Moreover, even if the same decisionmaker had handled the requests of
LC1 and appellant, the record confirms that SM had granted appellant's
light duty requests on several prior occasions, see ROI Exhibit 3, thus
undermining appellant's contention that the decision to grant LC1's
light duty request on the one occasion at issue constituted disparate
treatment. Inasmuch as appellant failed to establish a prima facie case
of disparate treatment, the remainder of the analysis is not reached.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, the FAD is AFFIRMED AS
CLARIFIED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
October 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1DS attested that while
he relayed to appellant SM's decision to deny
appellant's light duty request, he did not make
the decision. Appellant does not dispute this.
2Once appellant establishes a prima facie case of denial of religious
accommodation, the burden shifts to the agency to produce evidence showing
that it cannot reasonably accommodate appellant without incurring undue
hardship or that appellant has been accommodated. Protos, 797 F.2d
at 134. In TransWorld Airlines, Inc. v. Hardison, 432 U.S. 63 (1977),
the Supreme Court found that accommodations must create more than de
minimis monetary or efficiency costs in order to cause undue hardship.