Stanton S.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

Feb 5, 2019

EEOC Appeal No. 0120172696 (E.E.O.C. Feb. 5, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Stanton S.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120172696

Agency No. 4F-945-0049-16

DECISION

On August 1, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
July 6, 2017, final decision 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a PSE Sales and
Services/Distribution Associate at the Agency’s Seven Trees Station in San Jose, California.

During this time period, the Agency was awarded a contract with Amazon to deliver packages,
including on Sundays. The Agency indicated that all PSEs had to be trained and available for
scheduling for Amazon deliveries. On August 14, 2014, Complainant submitted a written request
to his Manager for a religious accommodation, stating that due to his religious beliefs he is not
permitted to work on Sunday. He asked that he not be assigned to work, including making
Amazon deliveries, on Sundays. The Manager responded to Complainant’s religious
accommodation request in writing, notifying him that another employee had volunteered to work
on Sundays so he would not need to be routinely assigned to work on that day.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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However, she indicated that Complainant needed to complete the scheduled training on
processing Amazon packages so that he could be used as a back-up if the other employee was
stuck or unable to report to work. Complainant was scheduled to work from 6:00 a.m. to 8:00
a.m. on Sunday, September 7, 2014, in order be trained on the processing of Amazon packages.
Complainant did not report to work on Sunday, September 7, 2014.

The Manager then assigned Complainant to training sessions scheduled for Sunday, September
14, 2014, and Sunday, September 21, 2014. Again, Complainant did not attend either session.
Complainant was marked as absent without official leave (AWOL) on September 7, 14, and 21,
2014, for a total of 12 hours.

The Agency issued Complainant a Notice of Removal on October 3, 2014, for failing to report to
work on three consecutive Sundays, as well as failure to report to work on September 11 and 12,
2014 (Thursday and Friday), on which he used approved sick leave and/or annual leave.
Subsequently, on October 30, 2014, Complainant was issued another Notice of Removal for
failure to follow instructions and unacceptable conduct when he was questioned by management.

On July 9, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), religion (Methodist), and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. On September 3, 2014, his request for religious accommodation was denied.
2. On October 3, 2014, he was issued a Notice of Removal (“Removal 1”) to be
effective November 7, 2014.
3. On October 30, 2014, Complainant was issued a second Notice of Removal
(“Removal 2”) to be effective on November 30, 2014.

At the conclusion of the investigation into his claims, the Agency provided Complainant with a
copy of the report of investigation and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). In accordance with
Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency’s decision concluded that Complainant failed to prove that the Agency subjected
him to discrimination or unlawful retaliation as alleged. The Agency found that Complainant
failed to show that the Agency denied him a religious accommodation. The Agency held that
Complainant was terminated for being absent for three Sundays along with two days when
Complainant took sick and/or annual leave. Subsequently, Complainant was removed for failing
to follow orders and using profanity in Removal 2. The Agency concluded that it attempted to
accommodate Complainant’s religious beliefs by using another employee to work most Sundays,
but, due to the requirements of his position, Complainant needed to be available as a Sunday
back-up and needed relevant training. The Agency noted that Complainant refused to participate
in the required Sunday training sessions, resulting in the AWOL charges.

This appeal followed.
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ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Religious Accommodation Claim

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 conflict 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 Complainant establishes a prima facie case, the Agency must show that it either
accommodated complainant's religious beliefs or that the request could not be granted without
imposing an undue hardship on the Agency's operation. See Tiano v. Dillard Dept. Stores, Inc.,
139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corp., 574 F.2d 897, 902 (7th Cir. 1978);
Complainant v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 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 Bd. of Ed. 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 Air., Inc. v. Hardison, 432 U.S. 63, 74 (1977).

Upon review of the record, we find that Complainant has established a prima facie case of denial
of religious accommodation. The record establishes that Complainant has a bona fide religious
belief that he must not work on Sundays. The Agency sought to assign him to work on Sundays
as a backup to another PSE in order to complete the Amazon package deliveries. In addition, the
Agency instructed Complainant to attend training on September 7, 14, and 21, 2014, which were
Sundays.
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Complainant clearly provided the Agency with a letter indicating his belief and that he could not
be tasked with the Sunday work assignment. In response, the Agency indicated that they found
another employee to take on the regular Sunday assignment. However, the Agency still required
Complainant to come to work on three consecutive Sundays to attend training, as well as indicate
that he would be expected to work some Sundays as a backup to the other PSE. Accordingly,
Complainant has shown that the Agency essentially denied his religious accommodation.

The burden shifts to the Agency to prove it made a good faith effort to reasonably accommodate
Complainant's religious beliefs or that the accommodation could not be granted without
imposing an undue hardship on the Agency's operation. In the case at hand, the Agency
indicated that it had a volunteer to perform the Sunday Amazon deliveries. However, the Agency
still insisted that Complainant would be required to work on Sundays when needed as backup
and required him to attend training on three consecutive Sundays. The Agency provided no
reason for why the training could only occur on Sunday. In addition, the Agency did not provide
any evidence regarding the availability of other employees rather than Complainant who could
be used as a Sunday backup for the Amazon deliveries. As such, we conclude that the Agency
failed to meet its burden of proving undue hardship in granting Complainant’s religious
accommodation. Therefore, we conclude the Agency violated its obligations under Title VII.

Further, based on Complainant’s failure to attend the training, Complainant was issued Removal
1. Specifically, the Agency indicated that Complainant was “irregular in his attendance,” citing
to Complainant’s three AWOL Sunday assignments for 12 hours.2 Management witnesses
indicated that the reasons for Removal 1 were failure to follow instructions, irregular attendance,
and AWOL. We find that these reasons were directly related to the Agency’s order to
Complainant to attend training on three consecutive Sundays. The Customer Service Supervisor,
who issued Removal 1, specifically stated that the reason for the Agency’s action was that,
“[Complainant] was on the schedule to work [attend the training] on Sundays, when he did not
show up for work as scheduled he was charged AWOL.” As such, we find that Removal 1 was
inextricably intertwined with the Agency’s unlawful denial of religious accommodation.
Therefore, we find that the issuance of Removal 1 also constitutes a violation of Title VII.

Retaliation for Accommodation Requests Claim

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).

2 Although the removal notice additionally referenced Complainant’s leave use on September 11
and 12, 2014, when addressing his attendance issues, there is no evidence that his absence on
these two dates alone would have resulted in the decision to remove him.
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The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the
burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976), and Coffman v.
Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may
establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity;
(2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse
treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The burden of production then shifts to the Agency to articulate a legitimate, non-discriminatory
reason for the adverse employment action. In order to satisfy his burden of proof, Complainant
must then demonstrate by a preponderance of the evidence that the agency’s proffered reason is a
pretext for disability discrimination

In claim (3), Complainant established the elements of a prima facie case of unlawful retaliation.
The record indicated that Complainant engaged in protected activity when he requested the
religious accommodation. EEOC Compliance Manual Section 12: Religious Discrimination §
12-V.B (2008), see also Ollis v. HearthStone Homes, Inc., 495 F.3d 570 (8th Cir. 2007)
(upholding jury verdict finding that an employee's complaints about required participation in
activities violate his religious beliefs constituted protected activity under Title VII);
Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 190 (3d Cir. 2003). The Manager and the
Supervisor were clearly aware of the Complainant’s protected activity. He was issued Removal
2 within a month of the Agency’s denial of Complainant’s religious accommodation. As such,
we find that there was a nexus between Removal 2 and Complainant’s protected activity.

The October 30, 2014 notice of removal indicated that Complainant was being removed for
“Unacceptable Conduct/Failure to Follow Instructions”. The Manager, who concurred in the
removal action, stated in her affidavit that Complainant exhibited inappropriate behavior during
his “Just Cause Interview” conducted on October 21, 2014, with the Supervisor3 when he
became “angry, disrespectful” and used “profanity”. It appears that the “Just Cause Interview”
was being held with Complainant to discuss his refusal to come into the office on October 17,
2014, to sign paperwork concerning the AWOL charges he received for not coming to work on
the three Sundays for Amazon training, as well as his refusal to stay late on October 14 and 15.

3 The Supervisor did not provide an affidavit for the investigation.

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According to the notice of removal, when the Supervisor tried to discuss Complainant’s behavior
during the interview, Complainant responded “I don’t care! I don’t care about the post office!
You’re going to fire me in 2 weeks anyway [referring to the effective date of Removal 1].” The
Supervisor and Complainant continued the discussion regarding Removal 1 and Complainant
responded, “Fuck them! Fuck all them crackers!” Complainant then collected his belongings,
clocked out and left the facility without obtaining permission to do so. When viewed in isolation,
the Agency articulated legitimate, non-discriminatory reasons for issuing Removal 2 – indicating
it was provoked by Complainant’s misconduct.

Complainant must now prove that the Agency’s proffered reason was a pretext for unlawful
retaliation. As noted above, the Agency failed to obtain an affidavit from the supervisor who
issued Removal 2. The Manager, as the concurring official, focused on the supervisor’s
interaction with Complainant regarding the “Just Cause Interview,” which was directly
connected to Complainant’s charges of AWOL based on the Agency’s failure to provide him
with a religious accommodation. While Complainant’s conduct during the October 21, 2014
interview was inappropriate considering he used profanity and walked out of the meeting, the
evidence of record does not support a finding that this conduct would have resulted in a removal
action had it not been for the conflict over Complainant’s requests for religious accommodation
and the imposition of Removal 1, which we have already found was unlawful. We note that the
October 30, 2014 notice of removal explicitly states that the pending Removal 1 was considered
in reaching the decision to issue Removal 2. Accordingly, we find that, more likely than not,
Complainant’s engagement in protected activity played a significant role in the decision to issue
Removal 2. As such, we conclude that the Agency’s issuance of Removal 2 was, at least in part,
in retaliation for Complainant’s protected activity.4

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we REVERSE the Agency’s final decision and REMAND the
matter in accordance with the ORDER below.

4 Given our conclusion that Complainant established that he was subjected to discrimination
based on denial of religious accommodation and unlawful retaliation, we need not address the
other alleged bases, as under the circumstances of this case, a finding on the additional bases
would not entitle him to any greater relief.
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ORDER
The Agency is ordered to take the following remedial action:
I. Within 60 days of the date this decision is issued, the Agency shall retroactively
reinstate Complainant to the position he would have held absent the unlawful
discrimination/retaliation. Further, the Agency shall remove and expunge all
documents and records relating to Removal 1 and Removal 2 from all Agency
official personnel files.
II. The Agency shall determine the appropriate amount of back pay, with interest,
and other benefits due the Complainant, pursuant to 29 C.F.R. § 1614.501, no
later than sixty (60) calendar days after the date this decision was issued. The
Complainant shall cooperate in the Agency's efforts to compute the amount of
back pay and benefits due, and shall provide all relevant information requested by
the Agency. If there is a dispute regarding the exact amount of back pay and/or
benefits, the Agency shall issue a check to the Complainant for the undisputed
amount within sixty (60) calendar days of the date the Agency determines the
amount it believes to be due. The Complainant may petition for enforcement or
clarification of the amount in dispute. The petition for clarification or
enforcement must be filed with the Compliance Officer, at the address referenced
in the statement entitled "Implementation of the Commission's Decision."
III. Within 90 days of the date this decision is issued, the Agency shall conduct a
supplemental investigation to determine whether Complainant is entitled to
compensatory damages incurred as a result of the Agency's discriminatory
actions. Within fifteen (15) calendar days of the date this decision is issued, the
Agency shall give Complainant notice of his right to submit objective evidence
(pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No.
01922369 (Jan. 5, 1993)) in support of his claims for compensatory damages
within forty-five (45) calendar days of the date the Complainant receive the
Agency's notice. The Agency shall complete the investigations on the claim for
compensatory damages within forty-five (45) calendar days of the date the
Agency receives Complainant's claim for compensatory damages. Thereafter, the
Agency shall process the claim in accordance with 29 C.F.R. § 1614.110.
IV. The Agency is directed to provide at least eight (8) hours of in-person training for
the Manager and the supervisors responsible for issuing both removal notices,
particularly focusing on providing religious accommodations and eliminating
retaliation in the workplace.
V. The Agency shall consider issuing disciplinary action against the Manager and the
supervisors who were found to have subjected Complainant to a denial of
religious accommodation and unlawful retaliation.
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VI. The Agency shall report its decision in its compliance report discussed below. If
the Agency decides not to issue any disciplinary action, it shall set forth the
reason(s) for its decision.
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of back pay and
other benefits due Complainant, including evidence that the corrective action has been
implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Seven Trees Station facility copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall be
posted both in hard copy and electronic format by the Agency within 30 calendar days of the
date this decision was issued, and shall remain posted for 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 as
directed in the paragraph entitled "Implementation of the Commission's Decision," within 10
calendar days of the expiration of the posting period. The report must be in digital format, and
must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The 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 (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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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 (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. Filing a civil action will terminate the
administrative processing of your complaint.
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

February 5, 2019
Date