Opinion
98 Civ. 2754 (VM).
November 9, 2000.
OPINION and ORDER
This Court conducted a bench trial in the above-captioned matter on July 10, 2000. After plaintiff Louis Cosme ("Cosme"), appearing pro se, rested his case, defendant (hereinafter the "Postal Service") moved for judgment as a matter of law under Fed R. Civ. P. Rule 50. The Court reserved judgment on the motion. After the Postal Service presented its case, the Court allowed Cosme to reopen his case-in-chief for the limited purpose of examining an additional witness whom Cosme had understood would be called as a defense witness he could cross-examine. The Court hereby denies the Postal Service's Rule 50 motion because of the factual issues raised by Cosme with regard to whether or not he was offered alternative assignments by his supervisor, Michele McNeill, and as to why he was not recommended for the Postal Inspector job he applied for in 1994. However, after weighing the facts in evidence and the relevant law, the Court hereby renders judgment in favor of the Postal Service.
FINDINGS OF FACT
Cosme, a longtime employee of the United States Postal Service in Manhattan, brought this claim against William J. Henderson, in his capacity as United States Postmaster General, for discrimination on the basis of religion. At all times relevant to this litigation, Cosme was a member of the Worldwide Church of God, a faith that requires its members to observe a day of rest on its Sabbath, which occurs from sundown Friday to sundown Saturday. Cosme asserts that his employer, despite knowing that Cosme's religion demanded that he not work on his Sabbath, refused to accommodate him with an assignment that had a fixed day off on Saturdays. Instead, according to Cosme, the Postal Service not only disciplined him for failing to work on his Sabbath but also refused to promote him on the basis both of his religion and of these allegedly discriminatory disciplinary actions.
Beginning in the mid-1980s, Cosme was assigned to the Postal Service's Lincolnton Station in upper Manhattan as one of a number of letter carriers who drove a postal truck to deliver parcel post in areas of upper Manhattan served by Lincolnton and several neighboring postal stations. In the time immediately prior to the onset of the alleged discrimination Cosme was a "parcel post floater," working a regular Monday-Friday schedule that did not conflict with his religious observance. In the middle of 1992, two events occurred that affected Mr. Cosme's assignment at Lincolnton. One was the Postal Service's decision to eliminate the parcel post operation based at Lincolnton and to relocate those routes elsewhere to a central facility, the East Side Parcel Post Annex. As part of this process, the parcel post carrier jobs at Lincolnton, including Cosme's, were abolished, with the exception of one truck serving the immediate area. The other important event, which happened at about the same time, was the announcement by Stanley Becton ("Becton"), the driver of the truck serving the Lincolnton route, that he was resigning, thus vacating what would remain the sole Lincolnton mail truck assignment after the reorganization.
When Becton resigned, his position was opened for bidding by other employees at Lincolnton, most of whom would otherwise be assigned to different stations. Under Postal Service practices, Cosme, who had the most seniority at Lincolnton, was essentially guaranteed the position if he bid on it. However, although Becton had worked a schedule with fixed days off on Saturday and Sunday, when the bidding was announced, the job was posted by Lincolnton Station Manager Michele McNeill ("McNeill") as carrying a fixed rest day only on Sunday, with the other rest day rotating weekly. The resulting schedule would require, more often than not, that the employee in the position would be assigned to work on Saturdays. McNeill testified that the change was required because under the reorganization overtime hours would be required to cover Lincolnton's parcel delivery demand, and other drivers would lose the opportunity to have a rotating Saturday rest day. Cosme contends that McNeill had no legitimate reason to post the job with rotating work days and that she was aware that Cosme was next in line for the job and that for religious reasons he did not work Saturdays. When Cosme informed McNeill that he intended to bid for the assignment, McNeill advised him that if he did so and was selected he would be required to work those Saturdays on which he was scheduled.
Before Cosme bid on the Lincolnton route, McNeill encouraged him not to do so and, instead, urged him to remain a parcel post floater at Lincolnton. McNeill's suggestion in effect would have made Cosme an "unassigned regular" carrier at Lincolnton, with no fixed duties, but available to be called on to fill whatever need existed within the station each day or week. The work Cosme could be assigned, however, would be limited to tasks appropriate for a letter carrier. Although typically an unassigned regular could be required to work on any open letter carrier position on any day, McNeill assured Cosme, prior to his bidding on the Lincolnton parcel truck route, that if he were to become an unassigned regular at Lincolnton, she would not require him to work Saturdays, and that from such a position he could bid on other vacancies at other postal stations in Manhattan that did not require Saturday work.
By becoming an unassigned regular, Cosme would suffer no loss in pay or seniority. Cosme contends, however, that this assurance was inadequate because the only assigned letter carrier position at that station for him to bid on was the very assignment for which he applied and was accepted. Absent a transfer to another station, Cosme would remain an unassigned regular indefinitely because his Sabbath observance would conflict with the one assigned position available at his station. However, Cosme did not establish that the accommodation McNeill offered would not reasonably meet both his religious observance and work requirements, even if he deemed it personally undesirable.
Moreover, McNeill testified that she made Cosme three different verbal offers of transfers to other stations within Manhattan that agreed to accommodate his need to have Saturdays off. Pursuant to these reported agreements and to Postal Service policies, upon accepting such a transfer, Cosme would have become an unassigned regular at his new station and would have lost his seniority for a 90-day period after his transfer. After the 90 days, however, Cosme would have regained his seniority and been able to bid on any open position for letter carriers that might open at his new station.
Cosme refused all alternatives offered by McNeill, which were neither written down as offers nor, he felt, sufficient to guarantee his ability to observe the Sabbath. Although Cosme suggests not only that he did not trust the offers that were made, but also that in fact not all the offers were made, the Court finds that the preponderance of the evidence favors the Postal Service on this point. In addition to McNeill's testimony that she made several such offers to Cosme, John Frink, the Area Manager for postal stations located in upper Manhattan, including Lincolnton, also described his conversations with McNeill and another station manager in attempts to accommodate Cosme with an appropriate position at another station. McNeill's testimony is supported also by that of Ronald Jackson, Cosme's union shop steward at the time, who recalled being present as McNeill stated that Cosme would have Saturdays off as an unassigned regular at Lincolnton. Although Cosme may not have given credence to McNeill's representations, the preponderance of the evidence suggests that the offers were made to him. Moreover, although the fact that these offers were not written might support some inference in favor of Cosme, the Court finds credible the testimony of Stephen Yamond, Manager of Labor Relations in the New York District of the Postal Service, that transfers of this nature were routinely agreed upon by mere phone calls between station managers.
On October 21, 1992, Cosme formally bid on the parcel post truck route for Lincolnton. McNeill told Cosme to acknowledge directly on the bid form that the position had Sundays and another rotating rest day off, and that the, truck would be parked at the Manhattanville station rather than at Lincolnton. Cosme complied and wrote this information on the bid form, thus acknowledging his understanding that the job was posted for days that would conflict with his religious observance.
As the senior bidder, Cosme was awarded the Lincolnton route beginning in late November 1992, with working days scheduled for Saturdays. Cosme then failed to report for duty on any Saturday he was assigned to work. Cosme was listed as being "AWOL" (absent without leave) on each such Saturday he failed to report to work. In the spring of 1993, Cosme was subject to progressive disciplinary measures for his failure to report to work on Saturdays as scheduled. Initially, he received a "letter of warning." On this basis, the Postal Service ultimately sent Cosme a "Notice of Removal."
After receiving that notice, Cosme accepted an arrangement with the Postal Service whereby he would have Saturdays as a rest day, work four days out of Lincolnton station and work Sundays at Manhattanville station. At that point the removal proceedings against him were terminated.
In 1994, Cosme applied for a job as a Postal Inspector, a law enforcement position of the Postal Service. Selection for such positions is highly competitive and requires applicants for the office to pass a variety of tests, background checks, and evaluations. According to David Rivera, a Postal Inspector who at the relevant times evaluated applications for the office, including Cosme's, only approximately five percent of applicants are accepted.
Rivera's evaluation included a review of each applicant's qualifications, reliability, and suitability for the job. As part of this review, Rivera routinely checked sick leave usage as an indicator of the applicant's attendance habits because reliability and willingness to work long hours on demand are considered essential. When an employee has used 60 percent or more of accrued sick leave, Rivera considers it an indication of a possible pattern of abusing sick leave to secure extra personal days.
In this case, by Rivera's calculations, Cosme's total available sick leave was just below 60 percent of the total amount he had accrued since he began working at the Postal Service. This level caused concern for Rivera. In an interview with Cosme, Rivera asked him whether he had had any significant illnesses or other issues with attendance. Cosme attributed his sick leave usage to a sprained ankle that kept him out roughly one to two weeks and an occasional cold or flu. Rivera testified that he believed that these maladies could not explain the number of sick leave hours that Cosme had used, but that he did not consider this alone to preclude his application, and he continued the evaluation of Cosme's application.
After interviewing Cosme, Rivera visited Lincolnton to speak with McNeill, to review additional employment records housed at the station, and to speak with others about Cosme. From his review of Cosme's records, Rivera found reports indicating that Cosme had been censured for violating postal driving policies on two occasions. One of them cited Cosme for leaving the scene of an accident, failing to report the accident, and failing to follow instructions with respect to the accident. According to the report, Cosme's actions violated Postal Service policies requiring that whenever a postal truck is involved in any kind of accident, its driver must immediately report the accident to management for investigation. Rivera further discovered that on another occasion Cosme had been censured for making an illegal u-turn in a postal vehicle. According to Rivera, this type of infraction, itself serious, when combined with Cosme's censure for leaving the scene of and failing to report an accident, would have precluded Rivera from recommending Cosme for a Postal Inspector position.
Rivera indicated that, because Postal Inspectors drive vehicles as part of their duties, and because they are charged with enforcing criminal laws and Postal Service regulations, an applicant's disregard for Postal Service policies or regulations would cause Rivera to recommend that such a candidate not be selected, regardless of other qualifications. Cosme countered that the file also contained other information indicating that he had reported the incident, termed an "accident" in the report Rivera saw, which involved a truck window being broken while parked, and that it also contained numerous reports commending Cosme as a driver. Rivera did not recall seeing such other documentation, and acknowledged that he did not conduct additional investigation into the files before relying on the reports he did see, but indicated that his reliance on documents he found in a file was a matter of course for him.
Rivera also spoke to McNeill about Cosme at the same time that he reviewed the records relating to the two driving incidents described above. During these discussions, McNeill informed Rivera that Cosme was a solid worker who did what he was asked, but not more. She also informed Rivera about Cosme's failure to report on various Saturdays after he bid on the new position that required Saturday work. Until then, Rivera was unaware of Cosme's Sabbath requirements.
According to Rivera, he would have recommended, solely on the basis of Cosme's sick leave and accident record, that Cosme not be offered a position as a Postal Inspector even in the absence of the AWOL reports connected with Cosme's Sabbath observance. Cosme, however, brought out that Rivera did recommend at least one other employee who had comparable sick leave and accident records. Rivera distinguished the driving records based on the conduct of the respective employees after the incidents, having relied on the documentation that Cosme failed to report the accident in which his truck was involved. Rivera indicates that this alone was sufficient to preclude him from recommending Cosme for the position.
Rivera also attempted to distinguish Cosme from the other applicant in question, who had a slightly worse sick leave record, by citing the extent to which he felt they were forthcoming about the reasons behind sick leave taken. However, Rivera also indicated clearly that he looked not only at sick leave but also at other attendance records, including Cosme's disciplinary reports of having been AWOL on various Saturdays, in determining whether Cosme's attendance at work was out of acceptable range. The Court does not need to resolve this factual dispute. As explained below, it is not material to the decision at hand, both because other adequate reasons support Rivera's determination and because the Court finds that the disciplinary actions taken with respect to Cosme were permissible.
CONCLUSIONS OF LAW
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of religion. 42 U.S.C. § 2000e-2(a)(1) and (2). Specifically, Title VII provides that 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. § 16052(b)(1.) In order to establish a prima facie case of discrimination under this provision, a plaintiff bears the burden of demonstrating that: "(1) he has a bona fide religious belief or practice that conflicts with an employment requirement; 2) he informed the employer of this belief or practice; and 3) he was disciplined for failing to comply with the conflicting employment requirement." Equal Employment Opportunity Comm'n v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir. 1997); Turpen v. Missouri-Kansas-Texas R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984)
Once a plaintiff establishes a prima facie case, the burden shifts to the employer to demonstrate that a reasonable accommodation was offered or that any accommodation would cause undue hardship to the employer. A reasonable accommodation of an employee's religion is one that "eliminates the conflict between employment requirements and religious practices." Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986). The process of finding a reasonable accommodation is intended to be an interactive process in which both the employer and employee participate. See Thomas v. National Assoc. of Letter Carriers, 225 F.3d 1149, 1154. While the employer bears the burden of making a reasonable accommodation for the religious beliefs of an employee, the employee, too, "must make some effort to cooperate with an employer's attempt at accommodation." Id., 225 F.3d at 1155, citing Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987). Thus, if the employer shows that it made a good faith effort to accommodate the employee's religious beliefs, it has satisfied its obligations under Title VII, and "the statutory inquiry is at an end." Ansonia, 479 U.S. at 68.
In Ansonia, the Court ruled that "any reasonable accommodation by the employer is sufficient to meet its accommodation obligation." Id. Although Cosme has attempted to demonstrate that offering him the accommodation he requested, which was that the position to which he applied have Saturday as a fixed day off, would not have posed an undue hardship to the Postal Service, this argument is not relevant where the employer has offered other reasonable accommodations. The Supreme Court specifically found in Ansonia that where an employer has already attempted to offer reasonable accommodations "[t]he employer need not further show that each of the employee's alternative accommodations would result in undue hardship." Id., 479 U.S. at 68. It is clear that the employee is not entitled to the accomodation of his or her choice; rather, the employer simply must make a reasonable accommodation. See Wright v. Runyon, 2 F.3d 214, 217 (7th Cir. 1993) ("[B]y providing at least one reasonable accommodation, the U.S.P.S. discharged its obligation"), cert. denied, 510 U.S. 1121 (1994) (citing Ansonia, 479 U.S. at 69)
Here, as discussed above, the Postal Service has demonstrated by a preponderance of the evidence that it made good faith efforts to accommodate Cosme reasonably. Cosme appears to challenge McNeill's testimony that she offered him three transfers in addition to her proposal that he become an unassigned regular at the Lincolnton Station., Cosme emphasized particularly two problems with her testimony: (1) that she placed Ronald Jackson at a meeting where the accommodations at other stations were discussed, but that Jackson did not recall being at such a meeting and (2) that none of McNeill's offers were put into writing. However, both Frink and Jackson recall discussions about positions in other stations and their attempting to assist with such negotiations. Also, Yamond independently testified that transfers were regularly authorized between station managers by means of phone conversations.
Cosme also implies that the initial decision to post the job may have been discriminatory. However, Cosme has not pointed to facts that suggest that the motivation behind that change was religious animus. For instance, he has presented no evidence of actions or remarks by decision-makers at the Postal Service suggesting religious animus, nor any pattern with respect to the Postal Service's treatment of Cosme himself. See, e.g., Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996) (providing examples of some types of evidence that may support an inference of discriminatory animus as motivating an employment decision).
Cosme further argues that a transfer to another station would not have accommodated his religious believe because under the Collective Bargaining Agreement ("CBA") between the Postal Service and the National Association of Letter Carriers that governed the terms of his employment, the station managers where he would be assigned would not be obligated to give him Saturdays off. However, the CBA neither determines the employer's obligations under Title VII nor prevents accommodations by the employer for religious reasons. Its provisions are immaterial to the employer's continuing obligation under Title VII to offer reasonable accommodations for an employee's religious beliefs or practices. Thus, particularly in light of McNeill's representation that the other station managers agreed to accommodate his need for Saturdays off, Cosme's assertion that the Postal Service had no obligation under the CBA to give him that day off does not bear on whether the offered accommodations were reasonable.
In sum, the Court finds that the Postal Service offered Cosme a number of alternative arrangements that would have permitted him not to work on Saturdays. Despite some constraint on Cosme in having to transfer and lose his seniority for 90 days, the Court finds that the transfer offers, in particular those to stations that agreed to accommodate his religion, were made as good-faith attempts to accommodate Cosme, thus discharging the Postal Service's obligations to eliminate the conflict between Cosme's religious practices and the requirements of his employment. Each one of these offers, by itself, was sufficient to satisfy the Postal Service's statutory obligation. As such, Mr. Cosme was not entitled simply to fail to report for work on days when his work requirements conflicted with his religious observance. Had such discipline occurred after he accepted an accommodation offer, it may well have served as a basis for Cosme's claim of discrimination. But under these circumstances, the disciplinary action was not discriminatory.
Similarly, Cosme has not proved his claim that he was impermissibly denied a promotion to Postal Inspector for reasons relating to his religious beliefs or practices. Essentially, this allegation arises out of his claim of having been improperly disciplined. In this regard, Cosme claims that Inspector Rivera's decision not to recommend him for the position was part of an adverse employment action resulting from the AWOL reports he contends were improper. Having determined that the disciplinary measures taken prior to Cosme's agreeing to an alternate accommodation in 1994 were not improper in light of the prior attempts by the Postal Service to accommodate him, however, the Court considers that reliance by Rivera on those actions would not have been improper.
ORDER
Accordingly, the Court having found that Cosme has failed to prove his Title VII case of discrimination against him by the Postal Service on the basis of religion, it is hereby
ORDERED that the Clerk of Court enter judgment in favor of the defendant and close the case.
SO ORDERED: