Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jul 24, 2015

01-2013-3188-0500 (E.E.O.C. Jul. 24, 2015)

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

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120133188

Agency No. 4G-320-0002-13

DECISION
Complainant filed an appeal from the Agency’s final decision concerning her equal
employment opportunity (EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq

. Our review
is de novo. For the following reasons, the Commission REVERSES the Agency’s final
decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant was working as a Relief
Postmaster at the Agency’s Post Office in Stockton, Georgia. Complainant began her
employment with the Agency in March 2011. Complainant was employed in a non-career
position, and she did not accrue annual or sick leave. For absences of less than 40 hours, a
Relief Postmaster can approve her own leave as long as she has coverage for the facility. For
absences of more than 40 hours, a leave request is required and must contain information as to
who will be covering the office in the Relief Postmaster’s absence.

On May 14, 2012, Complainant, who is a Jehovah's Witness, requested leave to attend a
religious convention. Complainant claimed that her Supervisor approved her leave request.
Her Supervisor took leave the week prior to when Complainant planned to attend the religious
convention. The Postmaster of the Destin, Florida facility (hereinafter referred to as the
Postmaster) was filling in for Complainant’s Supervisor during his absence.

The Postmaster of the Lakeland, Georgia facility (hereinafter referred to as the Officer-in-
Charge) stated that she was contacted by Complainant on June 29, 2012, and asked who was
going to cover the Stockton facility the following week while she was away. The Officer-in-
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Charge responded that she was unaware that the facility needed coverage. According to the
Officer-in-Charge, Complainant had not provided an approved leave slip from her Supervisor.
The Officer-in-Charge claimed that she informed Complainant that she could not assist her
because she had two clerks at Lakeland and one of them had approved leave for the week of
July 4th. Complainant stated that the Officer-in-Charge told her she could attend the
convention if she could find coverage for the facility.

Complainant responded on July 6, 2012, that she had been unsuccessful in obtaining coverage
and she decided to postpone attending her convention until July 12-16, the last possible week.
The Postmaster sent an email on July 6, 2012, to try to get coverage for Complainant. The
Postmaster asserted that she told Complainant she could not approve any leave without
knowing who was going to cover the facility.

The Officer-in-Charge asserted that she was contacted by the Postmaster concerning providing
assistance for covering the Stockton facility from July 12-16, 2012. The Officer-in-Charge
claimed that she was scheduled to be away from the office on official business July 12-14,
2012, that she needed both clerks to work July 14, 2012, and that she was scheduled for annual
leave for the entire week of July 16, 2012.

Complainant stated that after she postponed her original leave, she contacted a clerk at the
Lakeland facility and asked her to fill in for her. According to the window clerk, she asked
the Officer-in-Charge whether she could substitute for Complainant, and the Officer-in-Charge
told her that she knew Complainant wanted the time off, that it was being taken care of, and
that she could not fill in because it would mean that the window clerk would be incurring
overtime.

Complainant chose to attend her convention. On July 12, 2012, a rural carrier who delivered
the Stockton route called in and stated there was no employee at the Stockton facility.
Management decided not to open the facility that day. According to the Officer-in-Charge, for
the remainder of Complainant’s absence, the Agency incurred overtime in order to keep the
Stockton Post Office open. Upon her return to the office on July 17, 2012, Complainant
received an investigative interview and was placed off the clock.

On August 1, 2012, Complainant’s Supervisor issued her a Notice of Proposed Removal
charging her with being AWOL. The Acting Manager for the North Florida District issued a
Letter of Decision on September 4, 2012, wherein he determined that the charge of AWOL
was supported by the evidence and warranted Complainant’s removal from her position.

On January 17, 2013, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the basis of her religion when she was terminated. 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 Equal Employment
Opportunity Commission Administrative Judge. When Complainant did not request a hearing
within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision
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pursuant to 29 C.F.R. § 1614.110(b). The Agency found no discrimination, and this appeal
followed.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that if the Officer-in-Charge was able to secure coverage by
calling offices after she did not appear for work on July 12, then the Officer-in-Charge should
have made the same effort to obtain coverage prior to July 12. Complainant maintains that she
postponed attending the convention, searched diligently for someone to cover for her and
requested the Postmaster, who was acting as her Supervisor, to intervene. Complainant
contends that after she was informed that she was responsible for securing coverage for her
absence, she was denied coverage that was willing and available. Complainant further
maintains that she e-mailed her Supervisor prior to attending the convention that she would not
be abandoning her job.

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 an employee 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 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).
We find that Complainant has established a prima facie case of religious discrimination.
Complainant is a Jehovah’s Witness who wished to attend her religion’s convention in July
2012. Complainant submitted a leave request to her Supervisor on May 14, 2012, for the
period of July 5-10, 2012, wherein she referenced her desire to attend a religious convention.
We note that the Agency did not consider this to be a request for a religious accommodation
since Complainant did not explicitly request an accommodation. We find that the Agency’s
approach placed form over substance and failed to accurately characterize Complainant’s
request. Complainant maintains that her Supervisor approved her request for leave, but the
Supervisor asserted that he rejected the request.

In her Supervisor’s absence, Complainant subsequently sought information from the Officer-in-
Charge concerning who would be covering during her absence. Complainant was informed
that she needed to secure coverage for her facility before her leave request would be approved.
Complainant was unable to secure coverage, and she postponed her plans and stated that she
wished to take leave to attend the convention during the period of July 12-16, 2012.
Complainant contacted a window clerk at the Lakeland facility where the Officer-in-Charge
was the Postmaster, and the window clerk expressed a willingness to cover for Complainant.
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However, the window clerk maintains that the Officer-in-Charge informed her that she would
not be allowed to substitute for Complainant because the Agency would have to pay her
overtime. Complainant was again informed that she needed to obtain coverage for her facility
but was unable to do so. Subsequent to Complainant attending her religious convention
without Agency approval, the Agency issued Complainant a Notice of Proposed Removal and a
Letter of Decision which effected the removal.

Once Complainant establishes a prima facie case, the Agency must show that 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.
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. Antonia Board of Education 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
Airlines, Inc. v. Hardison

, 432 U.S. 63, 74 (1977).
After a thorough review of the record, we find that the Agency failed to meet its burden to
demonstrate that it made a good faith effort to reasonably accommodate Complainant’s
religious beliefs, or that to do so would have imposed an undue hardship upon the Agency’s
operations. Complainant was instructed that she needed to secure coverage for the Stockton
facility and she in fact obtained a potential replacement, but the Officer-in-Charge prevented
this voluntary substitution from occurring. Although the Officer-in-Charge indicated that she
could not spare any personnel to provide coverage, this explanation is contradicted by the
window clerk who stated the Officer-in-Charge told her that incurring overtime costs was the
reason she could not substitute for Complainant. We are not persuaded that these overtime
costs would have been more than de minimis. Moreover, we note that the Supervisor asserted
that he rejected in May 2012, Complainant’s request for leave to attend her religion’s
convention. Therefore, the Agency was on notice more than a month before the convention
that Complainant was seeking a religious accommodation yet the request was denied without
the Agency making a good faith effort to reasonably accommodate Complainant’s religious
beliefs. As such, we find that the Agency was in violation of Title VII when it failed to
provide Complainant with a religious accommodation when she was not approved to take
leave, and was issued a Letter of Decision removing her from her employment with the
Agency.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we REVERSE the
Agency’s final decision and REMAND the matter for further action in accordance with the
ORDER below.
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ORDER

Within 120 days of this decision becoming final:

I. The Agency shall reinstate Complainant to her employment status at the
Stockton, Georgia facility as of the date she was placed off the clock and rescind
and permanently remove from Complainant’s record the Proposed Notice of
Removal issued on August 1, 2012, and the Letter of Decision issued on
September 4, 2012.

II. The Agency shall issue Complainant a check for backpay with interest for the
period of time that Complainant has not been performing the position she held at
the time of the discrimination. The Agency shall determine the appropriate
amount of backpay (with interest, if applicable) and other benefits due
Complainant pursuant to 29 C.F.R. § 1614.501, no later than sixty (60)
calendar days after the date this decision becomes final. Complainant shall
cooperate in the Agency’s efforts to compute the amount of backpay and
benefits due, and shall provide all relevant information requested by the
Agency. If there is a dispute regarding the exact amount of backpay and/or
benefits, the Agency shall issue a check to Complainant for the undisputed
amount within sixty (60) calendar days of the date the Agency determines the
amount it believes to be due. 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. The Agency shall conduct a supplemental investigation on compensatory
damages, including providing Complainant an opportunity to submit evidence of
pecuniary and non-pecuniary damages. For guidance on what evidence is
necessary to prove pecuniary and non-pecuniary damages, the parties are
directed to EEOC Enforcement Guidance: Compensatory and Punitive
Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992)
(available at eeoc.gov). The Agency shall complete the investigation and issue a
final decision appealable to the EEOC determining the appropriate amount of
damages within 150 calendar days after this decision becomes final.

IV. The Agency shall provide at least eight (8) hours of training to the responsible
management officials on Title VII with an emphasis on religious
accommodation.

V. The Agency shall consider taking appropriate disciplinary action against the
responsible management officials. The Commission does not consider training
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to be disciplinary action. Within 30 days of the date this decision becomes
final, the Agency shall report its decision to the Compliance Officer referenced
herein. 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. If any of the
responsible management officials have left the Agency’s employment, then the
Agency shall furnish documentation of their departure date(s).

POSTING ORDER

(G0914)
The Agency is ordered to post at its Stockton, Georgia 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 becomes final, 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 at the address cited in the paragraph entitled "Implementation of the Commission's
Decision," within 10 calendar days of the expiration of the posting period.

ATTORNEY'S FEES

(H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), 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

(K0610)
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
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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

(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

(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
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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

Date
July 24, 2015