Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 14, 2015

01-2013-0544-0500 (E.E.O.C. Aug. 14, 2015)

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

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120130544

Hearing No. 530-2011-00161X

Agency No. 200406132010104355

DECISION
On November 19, 2012, Complainant filed an appeal from the Agency’s October 22, 2012,
final order concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq

. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Health Technician
at the Agency’s Medical Center facility in Martinsburg, West Virginia. On September 4,
2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him
on the basis of his religion (Christian) when, on July 7, 2010, the Agency denied his request to
be accommodated by having every Saturday off (from sundown on Friday to sundown on
Saturday).

At the conclusion of the investigation, 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). Complainant timely requested a hearing.
The AJ found that, after viewing the evidence in a light most favorable to Complainant, a
decision without a hearing was appropriate as there were no genuine issues of material fact in
dispute. The AJ issued a decision without a hearing on October 12, 2012, finding no
discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that
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Complainant failed to prove that the Agency subjected him to discrimination as alleged. On
appeal, Complainant reiterates his contention that the Agency failed to provide him with a
religious accommodation.

ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a final 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). The Commission’s regulations allow an
AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of
material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S.
Supreme Court has held that summary judgment is appropriate where a court determines that,
given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence
but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip.Corp., 846 F.2D 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to
affect the outcome of the case. If a case can only be resolved by weighing conflicting
evidence, it is not appropriate for an AJ to issue a decision without a hearing. In the context of
an administrative proceeding, an AJ may properly issue a decision without a hearing only upon
a determination that the record has been adequately developed for summary disposition. Petty
v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept.
of the Army

, EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. 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 the employee. 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 an employee establishes a prima facie case, the Agency must show that it made a good
faith effort to reasonably accommodate the religious beliefs and, if such proof fails, the
Agency must show that the alternative means of accommodation proffered by the employee
could not be granted without imposing an undue hardship on the Agency's operations. See
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3
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); Cardona 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 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).

Here, we concur with the AJ’s determination that Complainant has not shown that the Agency
denied him a religious accommodation. The record shows that Complainant is scheduled to
work the night shift from midnight to 8:00 am, with two consecutive days off. Those
consecutive days off rotate so that no employees are consistently scheduled to work on
weekends. On May 14, 2010, Complainant sent an email to management requesting the
religious accommodation of being permanently excused from working a Saturday shift. After
consulting with the Agency’s EEO office, management determined that providing Complainant
with a permanent schedule change would have an adverse impact on patient care and staff as it
would require Complainant’s coworkers to cover the shift thereby requiring them to work
additional weekend days, or it would require the Agency to have to pay overtime.

As such, in lieu of providing Complainant with a permanent schedule change, management
encouraged Complainant to voluntarily switch shifts with a coworker if he was scheduled for a
Saturday shift. The record shows, however, and Complainant acknowledges, that from the
time he requested religious accommodation, the Agency has not scheduled him to work from
sundown on Friday to sundown on Saturday. EEOC guidance states that the employer’s
obligation is to make a “good faith effort to allow voluntary substitution and shift swaps and
not to discourage employees from substituting for one another or trading shifts to accommodate
a religious conflict.” See Questions and Answers: Religious Discrimination in the Workplace

,
EEOC Laws and Guidance (Jan. 31, 2011). We find that although management denied the
specific accommodation requested by Complainant, it provided an alternative which would
accommodate his religious objection to working from sundown on Friday through sundown on
Saturday. Further, the record shows that Complainant has not been scheduled to work that shift
since requesting an accommodation. Accordingly, we concur with the AJ’s finding that
Complainant has not shown that he was subjected to unlawful religious discrimination.

CONCLUSION
We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
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without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order finding no discrimination is AFFIRMED.

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

(S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

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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 Complainants 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

August 14, 2015
Date