0120070328
03-06-2009
Tony N. Taylor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tony N. Taylor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070328
Hearing No. 210-2005-00266X
Agency No. 4J-604-0139-04
DECISION
Complainant filed an appeal regarding his 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. For the following reasons, the Commission AFFIRMS the
agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a City Mail Carrier at the agency's Tri-City Annex facility in Glenwood,
Illinois. On November 12, 2004, complainant filed an EEO complaint
alleging that he was discriminated against on the basis of religion
(Sabbath Observance) when:
1. From at least January 10, 2004, to the present, the agency
failed to accord religious accommodation so that complainant would not
be required to work on the Sabbath (Friday sunset until Saturday sunset);
and
2. From on or about April, 2004, the agency subjected him to a
hostile work environment in the form of coworker harassment because of
his religion.1
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 requested
a hearing and the AJ held a hearing on February 27, and 28; April 5,
and June 7, and 8, 2005. The AJ issued a decision on September 19, 2006.2
When the agency failed to issue a final order within forty days of receipt
of the AJ's decision, the AJ's decision finding that complainant failed
to prove that he was subjected to discrimination as alleged became the
agency's final action pursuant to 29 C.F.R. � 1614.109(i).
In her decision, the AJ found that complainant had established a prima
facie case of religious discrimination when he was denied a permanent
change of schedule that would permit him to have every Saturday off
(his non-scheduled day) for the purpose of observing the Sabbath from
Friday evening until Saturday evening, in accordance with his religious
beliefs.
The AJ further found that the agency presented sufficient evidence
to establish that accommodating complainant's beliefs posed an undue
burden to the agency. Specifically, the AJ found the agency showed
that allowing complainant to have a permanent non-scheduled day off
was in violation of the applicable collective bargaining agreement.
The AJ further found that the agency considered whether any accommodation
existed that would allow complainant to have every Saturday off without
causing an undue burden to the agency. The AJ found that the agency
explored each available alternative and showed that no accommodation
without undue hardship could be provided. The AJ noted that the
agency sought volunteers from among complainant's co-workers to swap
non-scheduled days off. Additionally, the AJ observed that in leave
year 2004 (54 Saturdays), complainant was accommodated by various
means, on ten Saturdays (eight by scheduled day off and two by annual
leave). Complainant took "sick leave/dependent care" on two Saturdays.
Complainant also had eight regular Saturdays off, three holidays, and
one sick leave. 3 The AJ found that the problems caused (overtime costs
as well as grievances following violations of the collective bargaining
agreement regarding cross craft assignments) created an undue hardship
for the agency that was more than minimal. Accordingly, the AJ found
that the agency met its burden to show that it was unable to accommodate
complainant's religious belief in the form of a permanent change of
schedule to allow him to have Saturdays as his non-scheduled day, without
either violating the collective bargaining agreement or incurring an
undue burden. The AJ therefore found that the agency properly denied
complainant's request for a religious accommodation.
With respect to complainant's harassment claim, the AJ found that the
incidents described by complainant wherein his co-workers questioned his
faith or complained that complainant was being unfairly given Saturdays
off, when their requests for leave were denied, were neither so frequent
nor so egregious to alter the terms and conditions of complainant's
position. The AJ found that while other employees were unhappy with
complainant's decision not to work on Saturdays, confrontations between
complainant and other employees were limited and occurred over a two to
three year period and that none of the comments were so severe that they
rose to the level of harassment.
The AJ therefore found that complainant did not show that discrimination
occurred as alleged.
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 their 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 a 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"
(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).
In the instant case, we find that substantial evidence supports the AJ's
decision regarding both claims. Specifically, we note that the record
shows that the agency accommodated complainant's request for Saturdays off
to the extent that it could, despite Saturday being the most requested day
off by all employees and the day of the week on which the most call-ins
(requests for sick leave and other leave) occurred. We note, as did the
AJ, that even those co-workers who were willing to trade non-scheduled
days with complainant, were often earning overtime because of the trade
or would have violated their medical restrictions in order to provide
complainant with a non-scheduled Saturday. We find that witnesses
confirmed that the terms of the local union agreement provided for a
rotating day off, an exception to which could not be made to accommodate
complainant's religious beliefs without violating that agreement.
We AFFIRM the agency's final decision finding no discrimination.
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 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 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 6, 2009
__________________
Date
1 Complainant sought leave from the EEOC Administrative Judge (AJ) to
amend his complaint to add a claim regarding a denial of his request
for reassignment to a position in Arizona. The AJ denied complainant's
request. Complainant does not challenge the AJ's ruling on appeal, and
we do not consider complainant's transfer (reassignment) request herein.
2 Complainant filed his appeal on October 20, 2006, before the expiration
of 40 days from the date of the AJ's decision. We now consider the
matter ripe for adjudication.
3 Complaint recorded 28 absences without official leave (AWOL) in the
Leave Year 2004.
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0120070328
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120070328