01A50280
12-28-2005
Derrick Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Derrick Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50280
Hearing No. 330-2003-08062x
Agency No. 4G-770-0361-02
DECISION
On October 9, 2004, the complainant filed a timely appeal from the agency's
September 22, 2004 final order concerning 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. The appeal is timely and is accepted pursuant to 29 C.F.R.
� 1614.405(a).
ISSUE PRESENTED
Whether the complainant was discriminated against based on his religion
(Muslim) when on April 23, 2002 he was ordered to remove his kufi, a prayer
cap used in the practice of the Muslim faith, and on May 3, 2002 he was
ordered off Postal property when he refused to remove his kufi.
BACKGROUND
The complainant filed an EEO claim with the above claim. Following an
investigation and hearing, an Equal Employment Opportunity Commission
Administrative Judge (AJ) issued a decision finding no discrimination. The
agency's final action affirmed.
At the time this matter arose, the complainant was a letter carrier with
the Houston Post Office, North Shepard Station, in Texas. For about 1�
years prior to the April 2002 incident, the complainant was wearing a kufi
in the station. A new postmaster took over, and about a week or two before
the incident he implemented a new policy that postal employees were to stay
in postal uniform. Headwear such as caps, "do-rags" and the complainant's
kufi were considered non-uniform.
On April 23, 2002, the area manager of customer service operations (area
manager) (Baptist) visited the station and saw the complainant wearing a
kufi. As employees clocked in, the manager, enforcing the new policy,
advised them of proper uniform and told them to comply. The manager
instructed two employees wearing do-rags and the complainant to remove
their headwear. The first two employees complied, but the complainant told
the manager he was wearing the kufi for religious purposes. The manager
again instructed the complainant to remove his headwear. The complainant
communicated his reluctance by asking to see something in writing about
this, but complied. The complainant stated his supervisor and the station
customer services manager (station manager) (Baptist/Catholic) witnessed
the entire exchange.
The complainant testified that he did not feel the same without his kufi.
On May 3, 2003, he decided to wear a kufi and went to work. After
respectfully refusing his supervisor's instruction to take it off, the
supervisor sent the complainant to the station manager. The station
manager told the complainant that he had to take off his headwear. The
complainant replied that he would not do so. The station manager testified
that she knew the complainant had been wearing the headwear because of his
religious belief, but that he did not request special permission to do so
in writing. She stated that if he had, she would have accommodated his
request. The area manager also testified that had the complainant made a
special request in writing, it would have been approved. The station
manager conceded that during the May 3 incident the complainant may have
told her that that he was wearing the headwear for religious reasons, but
she needed to get permission from the postmaster to allow it, and he was
out of town.
The complainant filed a grievance concerning being placed off the clock for
refusing to remove his non-postal headwear. While the grievance was
denied, the grievance decision indicated the complainant was paid
administrative leave for the day he was sent home. The complainant
testified that he was off the clock one day and was compensated for that
day. The area manager testified that some months after the April 2002
incident, the postmaster rescinded the policy change and employees could
wear any type of headwear they wished in the office. The complainant
testified that after the May 3, 2002 incident, he was accommodated with his
headwear.
The AJ found that when confronted by the area manager on April 23, 2002,
the complainant mentioned that he was wearing his kufi for religious
purposes, but did not make a request for religious accommodation. In
finding no discrimination, the AJ found that the complainant never informed
management that it was his religious practice to wear a kufi, nor requested
that he be allowed to do so because of his religious belief. The AJ found
that it was only after the agency attempted to enforce its uniform policy
that the complainant attempted to seek an accommodation.
Further, the AJ found that the agency need only accommodate the fundamental
tenets of the religion, not the complainant's optional wearing of the kufi.
The complainant testified that the kufi was religious headwear worn by
Muslims, and his doing so followed the prophet Mohammed's ways. He
testified that he was not religiously obligated to wear the kufi.
On appeal, the complainant argues, through his representative, that his
wish to wear a kufi was a sincere religious belief, that he made requests
to management to wear his kufi, and that this conflicted with the agency's
uniform policy.
STANDARD OF REVIEW
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).
ANALYSIS AND FINDINGS
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 the 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).
Here, the complainant, a Muslim, had a bona fide religious belief, i.e.,
wearing a kufi was religious wear and followed the ways of the prophet
Mohammad. While the complainant testified that he was not obligated to
wear the kufi, he did so as part of his bona fide religious belief. The AJ
cited Nesbitt v. United States Postal Service, EEOC Appeal No. 01996248
(September 19, 2000), to support the conclusion that the agency need only
accommodate the fundamental tenets of the religion, not the complainant's
optional wearing of the kufi. However, Nesbitt sought only to distinguish
religious activity from other types of activity and did not rule that only
the fundamental tenets of a religion need be accommodated. The wearing of
a kufi conflicted with the agency's employment uniform policy, and the
agency enforced this policy against the complainant. The complainant
established a prima facie case of religious accommodation discrimination.
After an employee notifies the employer of his need for a religious
accommodation, the employer has an obligation to reasonably accommodate the
individual's religious practices. A refusal to accommodate is justified
only when the employer can demonstrate that an undue hardship would result
from accommodating the religious practice. 29 C.F.R. � 1605.2(c)(1).
Undue hardship may be shown where the costs of the proffered accommodation
are more than de minimis or where such accommodation would deny another
employee his job shift preference or conflict with a valid collective
bargaining agreement (CBA). Trans World Airlines, Inc. v. Hardison, 432
U.S. 63, 79-85 (1977).
The AJ's decision found that the complainant did not attempt to seek a
religious accommodation until after the agency attempted to enforce its
uniform policy. We find that the complainant attempted and in fact
requested a religious accommodation when the area and station managers
sought to enforce the uniform policy. The area manager indicated that
when, on April 23, 2002, he instructed the complainant to take off his
kufi, the complainant said that he was wearing it for religious purposes.
Despite this, the area manager instructed the complainant again to remove
his kufi. The complainant reluctantly complied. We find that the
complainant's action of informing the area manager that he was wearing the
kufi for religious purposes combined with his reluctance under direction to
do so constituted a request for religious accommodation, i.e., that he be
allowed to wear it. Similarly, the station manager testified that she knew
the complainant wore his headwear for religious purposes, and that he
probably communicated this to her when she instructed him on May 3, 2002 to
remove it. We find that given this and the station manager witnessing the
April 23, 2002 incident, the complainant's refusal to remove his kufi
constituted a request for religious accommodation, i.e., that he be allowed
to wear it.
Both the area and station managers testified that had the complainant
requested in writing special consideration to wear his kufi for religious
purposes, it would have been granted. Given the circumstances of this
case, we find that Title VII did not require the request to be in writing.
The agency was in a position to immediately grant the requests without
incurring an undue hardship on its operations, and no planning was
required. There are no statements or testimony in the record averring that
allowing the complainant to wear a kufi would create an undue hardship in
any way.
For the reasons set forth above, the AJ's decision finding of no
discrimination is not supported by substantial evidence, and the agency's
final action implementing the AJ's decision is reversed. The complainant
did not request compensatory damages, and accordingly is not entitled to
any. Further, the complainant testified that he was compensated for the
day he was put off work, which is consistent with a grievance decision
indicating he got administrative leave for that day. Accordingly, we will
not award the payment of back pay.
CONCLUSION
Based upon a review of the record, the agency's final action implementing
the AJ's decision finding no religious accommodation discrimination is
reversed. The agency shall take the actions below.
ORDER
The agency is ordered to take the following remedial action:
1. Within 120 calendar days after this decision becomes final, require the
responsible management officials cited in this decision to attend training
on how to identify and prevent religious accommodation discrimination.
2. Consider taking disciplinary action against those responsible for the
discrimination against the complainant. The agency shall report its
decision. If the agency decides to take disciplinary action, it shall
identify the action taken. If the agency decides not to take disciplinary
action, it shall set forth the reason(s) for its decision not to impose
discipline. Complete these actions within 90 calendar days after this
decision becomes final.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of
compliance. The agency shall provide the complainant a copy of the
compliance report.
POSTING ORDER (G0900)
The agency is ordered to post at its Houston Post Office, North Shepard
Station, in Texas copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall be
posted by the agency within thirty (30) calendar days of the date this
decision becomes final, and shall remain posted for sixty (60) consecutive
days, in conspicuous places, including all places where notices to
employees are customarily posted. The agency shall take reasonable steps
to ensure that said notices are not altered, defaced, or covered by any
other material. The original signed notice is to be submitted to the
Compliance Officer at the address cited in the paragraph entitled
"Implementation of the Commission's Decision," within ten (10) calendar
days of the expiration of the posting period.
ATTORNEY'S FEES
If complainant has been represented by an attorney (as defined by 29 C.F.R.
� 1614.501(e)(1)(iii)), he may be entitled
to an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). Such an award of attorney's fees
shall be paid by the agency. The attorney shall submit a verified
statement of fees to the agency -- not to the Equal Employment Opportunity
Commission, Office of Federal Operations -- within thirty (30) calendar
days of this decision becoming final. The agency shall then process the
claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar days
of the completion of all ordered corrective action. The report shall be
submitted to the Compliance Officer, Office of Federal Operations, Equal
Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036.
The agency's report must contain supporting documentation, and the agency
must send a copy of all submissions to the complainant. If the agency does
not comply with the Commission's order, the complainant may petition the
Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The
complainant also has the right to file a civil action to enforce compliance
with the Commission's order prior to or following an administrative
petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29
C.F.R. � 1614.503(g). Alternatively, the complainant has the right to file
a civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and
1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. � 2000e-
16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
December 28, 2005
__________________
Date