01A03799
06-28-2001
Stanley P. Laber, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Stanley P. Laber v. Department of Defense
01A03799
June 28, 2001
.
Stanley P. Laber,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A03799
Agency No. EU-95-19
Hearing No. 100-97-7738X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
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. Complainant alleges he
and his minor dependents were discriminated against on the basis of
religion (Orthodox Jew) when his September 1994, requests for approval
of non-Department of Defense schools in Israel were not approved by the
Department of Defense Dependents Schools in Europe, as indicated by a
letter dated November 9, 1994. For the following reasons, the Commission
affirms the agency's final decision.
Complainant was employed by the Defense Logistics Agency (DLA), and was
stationed in Israel during the relevant time period. He filed a formal
EEO complaint with the agency on June 6, 1995, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
BACKGROUND
Complainant, with his wife and four minor children, was reassigned to
Israel in October 1993. As part of his relocation, schooling for the
children was to be provided by the Department of Defense (DOD) through
its subagency, DOD Dependent Schools (DODDS). Complainant and his family
are Orthodox Jews. His religion requires that his children attend
sex segregated schools. DODDS certifies non-DOD schools pursuant to
standards that enable children to move in and out of schools overseas
and in the United States, depending on their parents' assignments,
while maintaining an education comparable to that of public school
in the United States (U.S.- type). Specifically, DODDS requires that
non-DOD schools provide a U.S.- type curriculum that is taught in the
English language. In October 1993, by letter, complainant was told that
DODDS did not operate a school in Israel, but had certified a school
in Tel Aviv, the Walworth Barbour American International School (AIS).
Complainant was also notified that there were no other DODDS certified,
non-DOD schools available and that enrollment in a non-DOD school had
to be approved prior to enrollment.
The record reveals that in July 1994, complainant enrolled his children in
four different Israeli public schools which were not approved by DODDS.
The children were enrolled in these schools instead of AIS because
complainant's religion required that his children attend sex-segregated
schools and because these schools were operated by the religious
movement of Judaism to which complainant belonged. The classes were
taught in Hebrew.
In September 1994, complainant submitted an application for enrollment
of his children in non-DOD schools. In the application, complainant
explained that the schools were sex-segregated in accordance with his
religion, the school would provide a well rounded religious and secular
education and the instructors had been screened in accordance to his
religious standards. Complainant requested that DODDS provide additional
tutoring in Hebrew for the children and sought reimbursement for
educational expenses and payment for travel expenses incurred in sending
the children to school. Complainant's request was denied by DODDS.
He was told that government funds could only be paid for DOD dependents
attending certified schools and certified schools that provided a U.S.-
type curriculum in English. Complainant was also told that government
funds could not be used to send his children to the religious schools of
his choice. Additionally, complainant was told that his applications
had been rejected because they were filed after he had enrolled his
children in the Israeli schools and agency regulations required approval
prior to enrollment. During the hearing, agency officials testified
that some DOD employees enrolled their children in local schools for
the experience and other religious employees enrolled their children
in religious schools but these employees were not reimbursed for their
costs and incurred these expenses on their own.
The AJ concluded that this case raised issues of both disparate treatment
and religious accommodation. Regarding disparate treatment, the AJ found
that complainant failed to establish a prima facie case of discrimination
because complainant had not shown that he was treated any differently than
similarly situated individuals outside his protected class. Specifically,
the AJ found that other DOD employees that sent their children to schools
other than AIS, did so at their own expense. In addition, other Jewish
employees who enrolled their children in Israeli schools because of their
religious beliefs were not reimbursed for tuition or transportation
costs. Moreover, the AJ found that the only employees reimbursed for
school were those where no DOD or non-DOD approved school was available.
With respect to the issue of religious accommodation, the AJ found that
complainant did not establish a prima facie case because he did not
give the agency advance notice that his children could not attend AIS
because of his religious beliefs and enrolled his children in the Israeli
schools prior to seeking any approval. The AJ found that in effect,
complainant sought to dictate the accommodation without permitting the
agency to explore any options. The agency's final decision implemented
the AJ's decision.
On appeal, complainant restates arguments previously made at the
hearing and contends that the AJ erred when she found that his claim was
barred because he had enrolled his children prior to seeking approval.
He disputes the AJ's finding that the only instance where the agency
approved waivers was in the situation where an employee had no other
school (DOD or non-DOD) available. In response, the agency restates
the position it took in its FAD, and requests that we affirm its final
decision.
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).
Under Title VII, employers may be liable for failure to accommodate
the religious practices of their employees absent proof that such
accommodation could not be made without imposing an undue hardship
on the employer. 42 U.S.C. � 2000e(j); 29 C.F.R. � 1605.2(b)(1).
To establish a prima facie case of discrimination, complainant must
demonstrate that: (1) he has a bona fide religious belief, the practice
of which conflicted with his employment, (2) he informed the agency
of this belief and conflict, and (3) the agency nevertheless enforced
its requirement against him. 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). In the present case, the Commission finds
that the AJ erred when she found that complainant did not establish a
prima facie case of religious accommodation. We find that complainant
has established a prima facie case of discrimination based on religious
accommodation. Specifically, complainant averred that he is an Orthodox
Jew, and the tenets of his religion require that his children attend
sex- segregated schools. Education for dependent children is a benefit
of complainant's employment. Complainant has identified a practice of
his religion which conflicts with the type of schooling available at the
DOD approved school and despite the agency's knowledge of complainant's
religious beliefs, the agency denied his request. As such, we find that
complainant has established a prima facie case of discrimination based
on a failure to accommodate his religion.
Once a complainant establishes a prima facie case, the agency must
show that it made a good faith effort to reasonably accommodate his
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. USPS, EEOC Request No. 05890532 (October 25, 1989). Pursuant to
29 C.F.R. Section 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. 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).
As an initial matter, we note that we are not persuaded by the agency's
argument that complainant's failure to alert the agency of his need
for religious accommodation prior to enrolling his children in school
renders his claim unsuccessful. Such logic would render any individual
who entered into a religion subsequent to the date he was hired for a
position unprotected by Title VII. Notwithstanding, we find that there is
sufficient evidence in the record for a finding that the agency engaged in
an effort to find complainant a reasonable accommodation for his religious
requirements, including offering correspondence courses for the children,
which was rejected by complainant. Complainant's only acceptable
accommodation appeared to be the approval of the non-DOD schools by
the agency. As such, the Commission finds that complainant did not prove
his claim of discrimination based on religious accommodation. We find
the schools chosen by complainant did not comply with the requirements
of DODDS, namely, schools that provided a curriculum in English that
would allow dependent children to move in and out of public schools
overseas and in the United States. We also find that complainant refused
the agency's good faith efforts to reasonably accommodate his religious
beliefs and the acceptance of the accommodation proffered by complainant
(tuition and other payments for his children to attend religious school)
would impose an undue hardship on the agency's operations. As such,
the agency satisfied its burden.
After a careful review of the record, the Commission finds that the AJ's
decision as modified above properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's religion.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 28, 2001
_______________________
Date