0120140671
04-01-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120140671
Hearing No. 520-2013-00089X
Agency No. 1B-072-0020-12
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 31, 2013 final action concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as an Electronic Technician at the Agency's Dominick V. Daniels Processing and Distribution Center in Kearny, New Jersey.
On June 8, 2012, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the basis of religion (Roman Catholic) when:
1. on January 26, 2012, his request for religious accommodation was denied; and
2. on February 16, 2012, he was issued a Notice of Removal for "Failure to Meet the Requirement of Your Position."
After the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On September 9, 2013, the AJ issued notice of her intent to issue a decision without a hearing. The AJ determined that the record reveals the following undisputed facts.
On January 20, 2012, Complainant was informed by the Supervisor Maintenance Operations (supervisor) that he would be required to attend resident training at the National Employee Development Center (NCED) in Norman, Oklahoma starting February 2, 2012 through March 10, 2012. After being informed of his requirement to attend the scheduled training, Complainant informed the supervisor he could not attend because of obligations on his rest days. Complainant was then informed that he must provide documentation justifying his reasons for not being able to attend the required training.
The record reflects that on January 25, 2012, Complainant sent an e-mail to his supervisors and sent copies to both managers stating that he would not be available to attend training from February 2, 2012 through March 10, 2012. However, Complainant did not provide documentation to support his availability. Complainant was again informed that he would need to provide acceptable documentation excusing him from his obligation to attend training.
On January 26, 2012, Complainant submitted a Form 3971 by e-mail as supporting documentation for his unavailability to attend the required training. Specifically, Complainant requested eight hours of annual leave for February 22, 2012 for religious observances which he described as "Liturgical Imposition of Ashes" (Ash Wednesday). Complainant was informed that the submitted documentation was not accepted to excuse him from his obligations to attend the month long required training and was advised that he would be able to submit the request to the instructor at NCED for leave on February 22, 2012, for his religious observance.
On January 28, 2012, Complainant sent an-email to management stating he would be seeking medical treatment on February 16, 2012 after work hours and would not be available for the required training. Complainant submitted an appointment slip showing an appointment for "[Complainant's first name]" on Thursday, February 16, 2012 at 3:50 p.m. The slip contained no information as to the care giver or the nature of the appointment, and Complainant's request was denied on those grounds.
On January 31, 2012, Complainant resubmitted the appointment slip directly to the supervisor. On this occasion, the slip included the name of the care giver and indicated it was for a dentist appointment. Complainant's request was again denied as management stated that he could reschedule the dentist appointment, which did not appear to be an emergency matter, rather than miss the mandatory month-long training.
Complainant did not attend the residential training in Oklahoma because he had failed the qualifying test several times, and he requested 80 hours of sick leave covering the dates on which he was to have taken the test again. On February 9, 2012, Complainant was given a Pre-Disciplinary Interview regarding his failure to pass a prerequisite training test three times.
The record reflects that on February 26, 2012, Complainant was issued a Notice of Removal for the following reasons: "'Failure to Meet the Requirement of Your Position.' Specifically, you were chosen for official training and refused to accept training five (5) different times during the two weeks prior to your training start date and failing to satisfactory complete the required prerequisite."
Based on these facts, on October 22, 2013, the AJ issued a decision by summary judgment in favor of the Agency. In her decision, the AJ found no discrimination. Specifically, the AJ found that Complainant did not establish a prima facie case of religion discrimination. The AJ nevertheless found that the Agency articulated, legitimate, nondiscrimination reasons for its actions which Complainant failed to show were a pretext.
Regarding claim 1, the AJ noted that the record reflects that Complainant was not denied the opportunity to take 8 hours of leave to observe Ash Wednesday. Complainant was instead denied his request to be excused from 148 days of mandatory training because he had to observe Ash Wednesday on one date during the month-long training. The AJ noted that Complainant could have been allowed to have February 22, 2012 off for religious observance as requested in Oklahoma where he would have been on Ash Wednesday for his training.
The Manager, Maintenance Operations (manager) stated that Complainant submitted a request "to me for Religious Observation as documentation to be excused from attending a one hundred and forty eight hour (148) training course at Norman, Oklahoma facility in an email on January 26, 2012 at approximately 3:15 PM." The Manager stated that he disapproved Complainant's documentation "as acceptable to be excused from attending the required one hundred and forty eight hour training. It was explained to the complainant by his supervisor that once at the training facility he would be afforded the opportunity to submit his request to the instructor for approval of eight hours annual leave for his religious beliefs."
Further, the manager stated "the reason for my decision was based on the Postal Service needs to have the proper number of maintenance employees trained on newly installed equipment and that eight hours of annual leave was not acceptable as a reason for an employee to miss 148 hours of training and that the complainant would be offered the opportunity to submit his request to the instructor at the training facility." Moreover, the manager stated that Agency management checked the previous three years to see if Complainant "ever requested leave for Ash Wednesday before and he did not."
Complainant's supervisor stated that at that time Complainant "was scheduled for training and stated he could not go for training due to religious observances (Ash Wednesday). It was explained to him that there were churches. The supervisor further stated that Complainant "was scheduled for training and all fees were paid for. He was looking to simply not go and we felt he was using any excuse he could come up with to get out of going."
Regarding claim 2, the supervisor stated that he was the deciding official to issue Complainant the Notice of Removal. In the Notice, the supervisor placed Complainant on notice that "it is a condition of employment as a level 10 Electronics Technician to attend updated training in order to keep up with the new technologies leading to improvements in mail processing equipment." The supervisor stated that in addition to not attending training in Oklahoma because Complainant failed the test for the prerequisite course, "Introduction to Mail Processing" three times. Complainant had taken the test for the third time on January 31, 2012, but he failed it and was locked out of the system which automatically occurs after three failed attempts to pass the test.
The manager stated that he was the concurring official concerning Complainant's removal. The manager stated the basis for concurring in the decision was Complainant's refusal to attend required and updated training which is a condition of his employment as an Electronic Technician
The Agency fully implemented the AJ's decision in its final action. The instant appeal followed.
ANALYSIS AND FINDINGS
AJ's Issuance of Summary Judgment
The Commission must first determine whether it was appropriate for the AJ to have granted summary judgment. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
There are no genuine issues of material fact or any credibility issues which required a hearing and therefore, the AJ's issuance of summary judgment was appropriate. When a party moves for summary judgment, such as the Agency did here, the non-moving party's opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. Complainant did not show that there was a genuine issue of material fact in this case, and his arguments on appeal do not undermine the AJ's determination that, even assuming all facts in his favor, a reasonable fact finder could not find in his favor, as explained below. Thus, we find that the AJ's grant of summary judgment was appropriate.
Denial of Religion Accommodation
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 has a bona fide religious belief, the practice of which conflicted with employment; (2) he informed the Agency of this belief and conflict; and (2) the Agency nevertheless enforced its requirement against complainant. Heller v. EBB Auto Co., 8 F.3rd 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).
Once the prima facie case is established, the burden shifts to the agency to demonstrate that it cannot reasonably accommodate complainant without incurring undue hardship, or that complainant has been accommodated. Title VII, 701(j), 42 U.S.C. � 2000e(j); 29 C.F.R. � 1605.2(c)(1); Protos v. Volkswagon of America, Inc. 797 F.2d 129, 133 (3rd Cir. 1986). The Supreme Court has found that accommodations which create more than de minimis monetary or efficiency costs cause undue hardship. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). A showing of undue hardship cannot be merely hypothetical, but must instead include evidence of an actual imposition on coworkers or disruption of work schedules or routines. Tooley v. Martin Marietta, 648 F.2d 519, 521 (4th Cir. 1987).
The Commission has found acceptable several alternatives for accommodating conflicts between work schedules and religious practices, including voluntary substitutes and swaps, flexible scheduling or lateral transfer and change of job assignments. See 29 C.F.R. � 1605.2(d). With regard to voluntary substitution or swaps, the Commission believes the obligation to accommodate requires employers to facilitate the securing of a voluntary substitute. Some ways of doing this are publicizing policies regarding accommodation and voluntary substitution, promoting an atmosphere in which substitutions are favorably regarded, or providing a central file, bulletin board, or other means for making voluntary substitutes available. See Hoffman v. USPS, EEOC Appeal No. 01A01092 (June 29, 2001); request for reconsider denied, Request No. 05A10911 (November 16, 2001).
Applying this analysis to the instant case, we find that the AJ properly found that Complainant did not establish a prima facie case of religion discrimination. Complainant has not shown that the Agency wrongfully failed to reasonably accommodate his religious beliefs. Specifically, we find that because Complainant did not provide sufficient documentation to support his request to be excused from 148 days of mandatory training because he had to observe Ash Wednesday on one date during the training. The AJ noted that Complainant would have been allowed to have February 22, 2012 off for religious observance as requested in Oklahoma where he would have been for Ash Wednesday for his training.
Accordingly, we find that Complainant has not established that he was denied religious accommodation in violation of Title VII.
Disparate Treatment
Finally, to the extent that Complainant is alleging disparate treatment (apart from accommodation), we find that as discussed above, the Agency has articulated legitimate, nondiscriminatory reasons for its action. Further, we find the record is devoid of any evidence that Complainant's protected basis was a factor in the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate that the Agency's reason were not the real reasons, and that the Agency acted on the basis of discriminatory animus. Complainant has failed to carry this burden. Accordingly, we find that Complainant has failed to show that he was discriminated against as well.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, we AFFIRM the Agency's final order because the AJ's issuance of a decision without a hearing was appropriate and a preponderance of the evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
April 1, 2014
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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