0320170048
11-16-2017
Shad R.,1 Petitioner, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shad R.,1
Petitioner,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Petition No. 0320170048
MSPB No. DC0752160785I2
DECISION
On June 15, 2017, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the reasons that follow, we CONCUR with the MSPB's final decision.
BACKGROUND
Petitioner worked as a Civil Service Mariner (CIVMAR) sailing aboard an Agency ship in a temporary assignment as a Refrigeration Engineer. Petitioner alleged that the Agency discriminated against him based on religion (Muslim) when, on August 2, 2016, he was issued a decision of removal. The decision letter provided Petitioner with the opportunity to correct the behavior which formed the basis of his removal. Petitioner declined, and was removed effective August 3, 2016.
The record reveals that Petitioner is an observant Muslim who wears a beard as part of his religious practice. At all times relevant to this appeal, Petitioner maintained a full, wide beard that extended more than 2 inches from his chin. All CIVMARs must be able to wear face-fitting personal protective equipment (PPE). For firefighting, CIVMARs wear an apparatus called a Self-Contained Breathing Apparatus (SCBA), which includes a mask that must be secured around the face. It is the Agency's policy that, for safety reasons, there can be "no facial hair crossing the sealing periphery of the mask." In other words, to properly wear the SCBA and other respirators onboard, a CIVMAR must have a clean shave in the area of the chin and sideburns.
The Agency has an accommodation policy for religious practices which states that religious accommodation cannot be guaranteed, but the Agency will accommodate religious practices "when these ... observances will not have an adverse impact on military readiness, unit cohesion, health, safety, discipline, or mission accomplishment." While the policy does not specifically address facial hair, it states under the "Uniform" section that religious "apparel" may be worn unless the item poses a safety hazard, or interferes with the wearing or proper functioning of protective equipment.
On October 13, 2015, the Afloat Training Team (ATT) issued a letter informing the ship's Master that it would be conducting training onboard Petitioner's ship from October 26-30, 2015. The Letter of Intent stated that the ATT would be strictly enforcing the Agency's Policy concerning beards. Additionally, the letter stated that the ship would not be permitted to sail unless the training was graded as successful. In response to the ATT letter, the ship's Master ordered all CIVMARs aboard the ship to shave their facial hair in preparation of the ATT exercise. There were at least ten CIVMARs working with beards at that time, including Petitioner. Several were hesitant to shave, but after a meeting with the ship's Master wherein he told them that if they could not shave clean, he would allow them to trim the beard down short, all the CIVMARs except Petitioner complied.
Following Petitioner's refusal to comply, he was again ordered to shave his beard and report for a fitness-for-duty test. Petitioner reported as ordered, but with his facial hair untrimmed and uncut. He presented a medical note which stated that he was not fit for duty.2 He was placed in a non-fit for duty status. On February 2, 2016, his removal was proposed for (1) failure to obey instructions, and (2) inability to don required correct PPE during a fire or emergency. In response to the proposed removal on oral arguments, Petitioner stated that his religion did not allow him to be clean-shaven, and he also stated that he could not be clean-shaven because of a medical condition. Initially, Petitioner stated that he would trim his beard to perform the fit test, but then changed his mind and declined to trim his beard, or to perform a fit test.
Petitioner subsequently was offered the opportunity to identify NIOSH-approved3 PPE masks that he would wear aboard ship. In response, he provided the Agency with information about two masks. However, each mask was either not NIOSH-approved, or was not suitable for the purposes of his position's function (i.e., firefighting).
On August 2, 2016, the deciding official issued a letter sustaining both charges and imposing the penalty of removal. Petitioner was given a final opportunity to report for duty demonstrating a satisfactory mask fit to avoid removal. Petitioner failed to do so, and was removed effective August 3, 2016.
A hearing was held and, thereafter, an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency successfully had established that: (1) Petitioner had failed to obey instructions; (2) Petitioner was unable to properly wear the approved PPE without shaving his beard; (3) the penalty of removal was reasonable for the misconduct proved, and the Agency would have taken the same personnel action regardless of Petitioner's religion; and (4) the Agency was able to establish undue hardship in honoring Petitioner's request for religious accommodation. Petitioner subsequently filed the instant petition.
In the instant petition, Petitioner, through his representative, argues that the Agency inconsistently applies their rule of no facial hair, and refuses to consider accommodations. Petitioner contends that the Agency can reasonably accommodate his religious beliefs by allowing him not to serve on the emergency response team, and/or by giving him a time to shave if a life-threatening situation should exist.
STANDARD OF REVIEW
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
ANALYSIS AND FINDINGS
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. 29 C.F.R. � 1605.2(b). To establish undue hardship, the employer must demonstrate that the accommodation would impose "more than de minimis cost" on the operation of the employer's business. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (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). Upon review, we determine that the MSPB's decision with respect to Petitioner's allegation of denial of religious accommodation constitutes a correct interpretation of the applicable laws, rules, regulations, and policy directives, and is supported by the evidence in the record as a whole.
We concur with the MSPB's finding that Petitioner's suggested accommodations would have constituted an undue hardship on the Agency. Petitioner's suggestion that he could tie and tuck his beard into the mask would still allow some amount of potentially toxic air to seep in through the sides of the mask, rendering the proposed accommodation ineffective. The suggestion that he could excuse himself in the event of an emergency to shave is patently unreasonable. If there is a need for CIVMARs to respond to an emergent situation, it is extremely unlikely that there would be time for Petitioner to leave the scene to shave. Additionally, the Agency is not required to permit Petitioner to willingly expose himself to the risks associated with not wearing PPE that meets the fit requirements. The record also reflects that the deciding official testified that reassignment was considered, but there was no onboard ship position for which Petitioner was qualified that did not require him to wear PPE. Additionally, he was unable to find an excepted-service CIVMAR position for which Petitioner was qualified for on shore.
One of Petitioner's proposed alternatives would be ineffective, and the other posed an undue hardship, to the Agency's operations. Petitioner therefore was unable to prove his affirmative defense that the Agency discriminated against him on the basis of religion due to its failure to accommodate his religious beliefs.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
_11/16/17_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 The note did not specify why Petitioner was unfit for duty. However, during his testimony before the MSPB AJ, Petitioner stated that he could not be clean-shaven due to a medical condition.
3 NIOSH stands for National Institute for Occupational Safety and Health.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0320170048
2
0320170048