EEOC Appeal No. 0120133188
07-24-2015
Complainant v. U.S. Postal Serv.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120133188
Agency No. 4G-320-0002-13
DECISION
On August 8, 2013, Complainant filed an appeal from the Agency's August 8, 2013, 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 Postmaster Relief/Replacement and serving as the Officer-in-Charge at the Agency's work facility in Stockton, Georgia. Complainant was employed in a non-career position and she did not accrue annual or sick leave.
On January 17, 2013, Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against her on the basis of her religion (Jehovah's Witness) when she was issued a Letter of Decision dated September 4, 2012, which upheld a Notice of Proposed Removal - AWOL dated August 1, 2012.
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). 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 pursuant to 29 C.F.R. � 1614.110(b).
The Agency determined that Complainant failed to prove that it subjected her to discrimination as alleged. Complainant began her employment with the Agency in March 2011. The Agency noted that Complainant stated that on May 14, 2012, she requested leave for the first week in July 2012 to attend her religion's convention. Complainant claimed that her Supervisor approved her leave request. The Supervisor took leave the week prior to when Complainant planned to attend the religious convention. The Postmaster of the Lakeland, Georgia Agency 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-Charge responded that she was unaware that the facility needed coverage. According to the Officer-in-Charge, Complainant did not provide 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. The Agency noted that the Postmaster of the Destin, Florida facility (hereinafter referred to as the Postmaster) was filling in for Complainant's Supervisor the week of July 4th. In an email dated June 29, 2012, from the Postmaster to Complainant, the Postmaster asked Complainant to send her leave slip for the days she can get coverage from July 5-10, 2012, and to notify her who would be covering for her.
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 Agency stated that the Postmaster sent an email on July 6, 2012, to try to get coverage for Complainant but that no one was available. The Postmaster asserted that she told Complainant she could not approve any leave without knowing who was going to cover the facility and that Complainant needed to clear her leave with her Supervisor. 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, and that Complainant did not contact her directly about providing coverage for those dates. 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.
The Agency stated that a window clerk at the Lakeland facility mentioned that Complainant asked her to fill in for her. Complainant stated that she contacted the window clerk after she postponed her plans to attend the religious convention from July 5-10. According to the window clerk, she asked the Officer-in-Charge who was her Postmaster 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. The window clerk asserted that the Officer-in-Charge told her that Complainant did not go about getting the time off she desired in the right way.
Complainant chose to attend her convention the week of July 12th. 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, a PSE in Valdosta was charged with operating the Stockton facility for a week and a Postmaster Relief from Statenville was put in the charge of the facility until a new Postmaster Relief could be hired and trained. The Officer-in-Charge stated that this resulted in overtime usage for both Stockton and Statenville. Upon her return to the office on July 17, 2012, Complainant received an investigative interview and was placed off the clock for being AWOL.
On August 1, 2012, Complainant's Supervisor issued her a Notice of Proposed Removal charging her with being AWOL. The Notice stated that Complainant was a Postmaster Leave Replacement who had been serving as the Officer-in-Charge at the Stockton facility since October 28, 2011, and that as the Officer-in-Charge, she was responsible for the day-to-day operations of that facility. The Notice recited that Complainant was required to obtain advance approval for any absence from her facility in order to ensure that the facility would be covered during her absence. Additionally, the Notice stated that Complainant had previously requested leave for July 5-10, 2012, but that this request had been denied because a replacement to cover for Complainant could not be located.
The Notice further stated that Complainant subsequently indicated she wanted to have the week of July 12-16, 2012, off, and that the Postmaster told her on July 6, 2012, that she could not guarantee that the leave request would be granted. The Notice stated that Complainant did not submit the leave request and was charged with being AWOL on July 12, 13 and 15, 2012, as she failed to report for duty as scheduled and her absence was not approved. 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.
The Agency noted that the Supervisor stated that as a Postmaster Relief, Complainant's leave requests would normally be approved by her Postmaster and that generally for leave requests of less than 40 hours, the Postmaster or Officer-in-Charge can approve their own leave as long as they have coverage for the facility. With regard to leave requests of more than 40 hours, the Supervisor stated that a Postmaster or Officer-in-Charge is required to submit a leave request that contains information as to who will be covering the office in the employee's absence. The Supervisor maintained that he had disapproved Complainant's leave request for the week of July 4th because Complainant did not have coverage for the facility. The Supervisor stated that he told Complainant that if another Postmaster Relief was hired for the Stockton facility prior to the week of July 4, he could revisit the issue of Complainant taking leave at that time. According to the Supervisor, although Complainant placed her religious reason on the leave request on May 14, 2012, she did not specifically request an accommodation for her religion. The Supervisor claimed that Complainant did not speak to him about taking July 12-16 off and she did not follow the Postmaster's instructions for taking leave during the time the Postmaster was acting for him.
The Agency determined that Complainant failed to establish a prima facie case of religious accommodation discrimination. The Agency reasoned that Complainant's absence created an undue hardship as the Stockton facility was left unattended for one day. The Agency cited the overtime costs incurred by the officials assigned to Stockton. The Agency stated that these factors constituted more than a de minimis cost. The Agency acknowledged that Complainant argued that coverage was found in her absence, but the Agency maintained that although coverage was located, it was available at a significant cost and difficulty for multiple offices.
Assuming arguendo that Complainant had established a prima facie case of religion accommodation discrimination, the Agency, based upon its aforementioned explanation, determined that it articulated legitimate, nondiscriminatory reasons for denying Complainant's leave request and Complainant's subsequent removal. With regard to Complainant's arguments to establish pretext, the Agency disputed Complainant's contention that the Supervisor approved her leave request. The Agency also claimed that the Officer-in-Charge's comment about not liking the way Complainant requested leave referred to Complainant not making her request in accordance within the established process. As for Complainant's claim that she secured coverage for the facility but the Officer-in-Charge rejected the coverage, the Agency noted that the Officer-in-Charge stated that Complainant did not contact her regarding coverage for the later dates and that when the Postmaster asked her to provide coverage, Complainant said she could not. The Agency noted Complainant's contention that during her absence, coverage was found, and therefore she should not have had to choose between her job and her religious beliefs. However, the Agency explained that it was Complainant's responsibility to provide coverage for her facility before she went on leave, and to inform management who would be providing the coverage. The Agency determined that Complainant failed to demonstrate that its explanation for her removal was pretext intended to hide discriminatory motivation.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency's failure to act in a timely manner and to make a reasonable attempt to accommodate her resulted in the costs and difficulties that management characterizes as undue hardship. 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 her Supervisor to intervene. Complainant disputes the Supervisor's assertion that her request for leave did not constitute a request for special accommodation. Complainant argues that by requesting time off to attend a religious convention, the leave request necessarily constituted a request for accommodation.
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 claims that the Officer-in-Charge's remark about not liking the way she went about seeking a replacement related to Complainant contacting her employees rather than asking the Officer-in-Charge directly. Complainant further maintains that she e-mailed her Supervisor prior to attending the convention that she would be attending and not abandoning her job. Complainant contends that the Agency offered no alternative solution to her situation. Complainant maintains that the Agency bears the burden of showing that a serious attempt was made at accommodation. Complainant also argues that given this was her first infraction, the Agency acted unreasonably in terminating her.
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 denial of religious accommodation. Complainant is a Jehovah's Witness who wished to attend her religion's convention during 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.
Complainant subsequently sought permission from the Officer-in-Charge on June 29, 2012, to use leave from July 5-10, 2012, so she could attend her religion's convention. Complainant was informed that she needed to secure coverage for her facility before her leave request would be approved. Complainant was unable to obtain a substitute and she postponed her plans and stated that she wished to take leave to attend her religious 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. 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. According to the window clerk, the Officer-in-Charge also stated that she did not like the way Complainant went about attempting to secure coverage. Complainant was again informed that she needed to obtain coverage for her facility. However, Complainant was unable to secure coverage for the Stockton facility for that period of time. 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 a 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. 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 Cir. 1978); Cardona v. United States Postal Service, EEOC Request No. 05890532 (October 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. 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 and constituted an undue hardship. We find that accommodating Complainant by affording her the opportunity to exercise her religious beliefs outweighed the costs that would have been incurred by the Agency. 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, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further action in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following remedial action:
I. The Agency shall reinstate Complainant to her employment status at the Stockton, Georgia facility as of the date of the discrimination 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 processing requests of religious accommodation.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
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 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 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
July 24, 2015
Date
2
0120133188
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013