Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Sep 19, 2013

0120120844 (E.E.O.C. Sep. 19, 2013)

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

,
Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120120844

Agency No. P-2008-0192

DECISION

On November 23, 2011, Complainant filed an appeal from the Agency’s October 24, 2011,
final decision concerning her 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
VACATES the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Correctional
Officer, GS-7, with the Agency’s Metropolitan Correctional Center (MCC) located in New
York, New York.

Complainant filed an EEO complaint dated February 13, 2008, alleging that the Agency
discriminated against her on the basis of religion (Seventh Day Adventist) when: Complainant
has not been able to consistently observe her Sabbath Day from Friday night until sundown
Saturday.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). On October 24, 2011, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

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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. (November 9, 1999) (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”).

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) she has a bona fide religious belief, the practice of which conflicted with
employment; (2) 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.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 Agency must show 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 Cirr. 1978); Cardona v. U.S. Postal Service, EEOC Request No. 05890532
(October 25, 1989). Pursuant to 29 C.F.R. § 1605.2(a)-(e) and the Commission’s Guidelines
on Discrimination Because of Religion (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
Educ. 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 minimus
cost. 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 previously held that the following are not undue hardships in the context
of religious accommodation cases:

1. general discontent or grumbling among other employees;
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2. timekeeping or payroll changes not overly expensive or time-consuming;
3. vague, unexplained statements of conflict in seniority rights guaranteed by a collective
bargaining agreement; or
4. where a position requires Saturday work, providing for exchanging days off, where
such exchanges are not an unlikely, remote possibility.

Banks v. Department of Interior, EEOC Request No. 05920680 (March 4, 1994) (citing
Hawkins v. U.S. Postal Service, EEOC Request No. 05890937 (May 18, 1990); Mann v. U.S.
Postal Service, EEOC Request No. 05880166 (July 12, 1988)).

In the present case, Complainant placed the Agency on notice of the conflict between her bona
fide religious belief, and the Agency’s requirement that she work some Friday evenings and
Saturdays. Thus, we find Complainant established a prima facie case of discrimination based
on religious accommodation.

The Agency noted that Complainant’s request to be excused from working from sundown on
Friday night to sundown on Saturday night, was denied. The Agency acknowledged that over
an almost two-year period from March 2007 to January 2009, there were 12 instances where
Complainant worked at least some hours from between sundown on Friday night and sundown
on Saturday night.

In his affidavit, the Warden stated that the Master Agreement precluded removal of a staff
member from a post they had bid on and been approved for by the roster committee. He
explained the Agency “could not simply move another officer from the post they had bid on to
accommodate [Complainant] nor could we change her days off without causing a disruption to
the schedule and possibly causing the expenditure of overtime to fill the post she was
vacating.” The Warden noted there was a post that another officer had vacated for the
remainder of one of the quarters and that Complainant was moved to that position for one
quarter. However, he stated that “after that quarter was over, she would have to use the
negotiated process to request specific days off.”

The Captain at the MCC stated that posts were based on seniority and he told Complainant that
since she was a new employee, she might not have enough seniority to bid on a post with
weekends off. The Captain stated the Administrative Lieutenant was working with
Complainant every week to put her on a post with weekends off.

Person A, the Administrative Lieutenant at the time, explained that he worked with
Complainant in an effort to accommodate her when possible. He stated that during February
or March of 2008, she was able to consistently work posts that enabled her time off to observe
her Sabbath. Person A stated that if he were to move someone off a post to accommodate
Complainant, he would risk having a claim filed by the person he moved. Person A also stated
that if Complainant’s requirement to observe her Sabbath were that important, she could have
transferred to other departments to have weekends off. Person A stated that “every department
was short [staffed]. That could’ve been very easily accommodated.” However, Person A
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stated that he did not suggest a transfer to Complainant because he felt that she appreciated it
when the change could be made and when it could not be made, he said she understood.

Person B, a union official, noted that the union’s concern was that the seniority rotation not be
violated. However, he stated that alternatives to meet Complainant’s concerns included
allowing Complainant to use compensatory time or annual leave and allowing someone to fill
the position if available at the time.

In her affidavit, Complainant states she was not allowed to work compensatory time, not
allowed to take off, and not allowed to have somebody else work the Sabbath for her.

The record contains a list of “Daily Assignments” for Complainant indicating that Complainant
took leave on several occasions which included her Sabbath day. Complainant, however, did
admit that she was accommodated when she was moved to a different position for a quarter.

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 substitutions or swaps, the Commission believes the
obligation to accommodate requires employers to facilitate the securing of a voluntary
substitute. Samuelson v. U.S. Postal Service, EEOC Appeal No. 0120112777 (February 19,
2013). 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. U.S. Postal Service, EEOC Appeal No. 01A01092 (June 29,
2001), request to reconsider denied, EEOC Request No. 05A10911 (November 16, 2001).

In the present case, we find the record is not fully developed to determine whether
Complainant was denied a religious accommodation. Therefore, we shall remand the matter so
that an appropriate investigation may be conducted by the supplementation into the record of
evidence addressing whether Complainant’s religious beliefs were accommodated and, if not
on some occasions, why not. The Agency asserted it would have incurred undue hardship if it
excused Complainant from working Friday evening to Saturday evening because it stated this
would violate its agreement with its union. We recognize there is some evidence in the record
that bid assignments are based on seniority and that allowing Complainant to displace a staff
member from a post they had bid on and that had been approved for by the roster committee
would violate the Master Agreement. However, we note the Commission has recognized that
allowing voluntary substitutes and swaps does not constitute an undue hardship to the extent the
arrangements do not violate a bona fide seniority system or collective bargaining agreement.
See Guidelines. In its final decision, the Agency does not cite any specific provision in its
agreement that would be violated by allowing voluntary substitutions and swaps.

In addition, the Agency has asserted that on several occasions it allowed Complainant to secure
temporary positions which gave her off on her Sabbath until she gained sufficient seniority to
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bid for weekday-only shifts. However, other than one temporary position in the Sanitation
Department, the record does not explain how Complainant obtained those other temporary
positions. For example, it is unclear whether the Agency assisted Complainant in securing a
voluntarily substitute. Nor does the Agency explain the circumstances surrounding the 12
instances in which Complainant was required to work on the Sabbath. For example, it is
unclear whether the Agency attempted to obtain voluntary substitutions or swaps on those
occasions on which Complainant was required to work on the Sabbath. Moreover, although
the Agency cites economic hardship of overtime costs of accommodating Complainant, it does
not state whether it actually incurred overtime costs for the occasions where Complainant
worked other temporary positions. Finally, we note Person A’s statement that every
department was short staffed and that Complainant could “easily” have been transferred to
another department. We find this statement calls into question the Agency’s assertion that it
could not accommodate Complainant. The Commission has recognized there is an affirmative
duty on the employer to facilitate reassignment/transfer possibilities.

CONCLUSION

Accordingly, the Agency’s final decision is VACATED and the complaint is REMANDED to
the Agency for further processing in accordance with the Order herein.

ORDER

Within 60 days from the date this decision becomes final, the Agency shall:

1. Supplement the record by addressing whether it considered all possible methods of
accommodating Complainant’s religious beliefs (allowing her not to work on her
Sabbath), including volunteer substitution or swap, flexible scheduling, lateral transfer,
or change of job assignment or craft. Specifically, the Agency shall provide all
relevant documentation regarding its efforts to accommodate Complainant. The record
should state, in detail, the reasons why any accommodation would create an undue
hardship on the Agency's operations and, if applicable, why Complainant refused to
accept any accommodations offered.

2. Supplement the record with the relevant, identified portions of the collective
bargaining agreement that impact the accommodation of Complainant’s religious beliefs
(allowing her not to work on the Sabbath).

3. Issue a new final decision on Complainant's complaint with appeal rights.

The Agency must send a copy of the new final decision to the Compliance Officer, as
referenced herein.

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IMPLEMENTATION OF THE COMMISSION’S DECISION
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 77960, Washington, DC
20013. 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.
(K0610)
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.
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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

(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

September 19, 2013
Date