0120070018
03-21-2008
Guadalupe M. Arredondo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Guadalupe M. Arredondo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01200700181
Hearing No. 480-2006-00022X
Agency No. 4F-913-0049-05
DECISION
On September 25, 2006, complainant filed an appeal from the agency's
September 7, 2006, 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is deemed timely and is accepted for de novo review, pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
a City Carrier, CC-01, at the East Bakersfield Post Office in Bakersfield,
California. On July 28, 2005, complainant filed an EEO complaint alleging
that he was discriminated against on the bases of sex (male), religion
(Catholic), and disability2 when:
1. On March 14, 2005, the hours he used for his on-the-job injury
were recorded as LWOP (Leave Without Pay) and the Injury Compensation
Office would not tell him how to complete the forms to recover his hours3;
and
2. On May 18, 2005, complainant's request for four hours off on
May 19, 2005 to attend a former co-worker's funeral was denied and
subsequently on May 27, 2005 he was issued a Notice of Fourteen-Day
Suspension charging him with AWOL, Failure to Follow Instructions and
Misrepresenting a Medical Condition.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned to
the case granted the agency's May 31, 2006 motion for a decision without
a hearing and issued a decision without a hearing on August 16, 2006.
In her decision, the AJ first found that complainant had not shown
that he was disabled within the meaning of the Rehabilitation Act at
the relevant time. The AJ then noted that the issue was not properly
before her, but proceeded to address complainant's additional assertion
that a manager (RMO) conducted a stand-up talk in which he disparaged
carriers with work-related injuries and limitations, suggesting that
because those carriers could not carry their full routes, they caused
the agency to incur excessive overtime, so that the agency could not
allow the full amount of funeral leave that the employees wanted.
The AJ noted that complainant further stated that his co-workers then
turned on him and verbally disparaged him as a carrier with work-related
injuries and limitations. The AJ found however, that even assuming the
allegations are true, the conduct alleged would not be severe enough to
satisfy the test for unlawful harassment.
The AJ then addressed the basis of religious discrimination as follows:
complainant alleged discrimination based on religion (Catholic). The RMO
and the agency deny that the RMO knew that complainant was Catholic.
Complainant counters that he discussed the liturgy in Catholic funeral
masses in detail with the RMO, so that the RMO must have known that he
was Catholic. This testimony on this point raises a disputed issue of
fact as to whether RMO knew he was Catholic. Complainant appears to
argue that the agency must allow whatever amount of time is necessary
to travel to and attend an entire Catholic funeral, a minimum of
four hours, as a matter of religious observation. Complainant fails
however, to establish facts sufficient to show a disputed issue
of religious discrimination on either of the two theories, namely:
religious discrimination against Catholics; and failure to accommodate
his religious belief and observation. First, complainant presented no
evidence that the two co-workers whom he identified as comparators,
a clerk and a supervisor, who were allowed to take more time for the
funeral, were of a different religion than he. Therefore, there is no
evidence of disparate treatment of one religion versus another.
The AJ further found the following: as to religious accommodation,
complainant was allowed to take sufficient leave to attend at least part
of the funeral Mass. In any event, there is no evidence in the record
that as a matter of Catholic theology or practice, he was required to
attend the entire Mass despite the demands of his job. The only evidence
is that he wanted to attend the funeral of his friend, who happened to be
Catholic, out of friendship. There is no evidence that he would not have
wanted to go to the funeral service if his friend was of another religion;
therefore, the request for leave does not appear to be supported by any
evidence that it was based on complainant's religious beliefs. Moreover,
since entitlement to leave is limited at the Postal Service by seniority
under the collective bargaining agreement and the business needs of the
Postal Service, an accommodation of whatever amount of unplanned leave
complainant found necessary to attend the funeral, notwithstanding the
desires of other employees, is more than de minimis and therefore an undue
burden on the facts here. Finally, even if the agency erred in denying
complainant the full four hours leave he wanted to attend the entire
funeral, complainant was suspended for ignoring his supervisor's direct
orders and calling in sick, then attending the entire funeral in apparent
good health. The AJ found no evidence of religious discrimination.
The AJ next addressed the basis of sex discrimination as follows:
complainant compares himself to two employees, one of whom is male,
with respect to the funeral leave claim and the suspension. The agency
argues that both comparators are in different job classifications (clerk
and supervisor, respectively) and therefore are not properly considered
relevant comparators, although all three employees report to RMO.
Other than the comparison to a female clerk, there is no direct or
circumstantial evidence of sex discrimination. The agency's legitimate
non-discriminatory reasons for the different treatment of the female
clerk are that (1) she was a clerk, and not a carrier like complainant,
and there was coverage for her time at the funeral beyond two hours,
and therefore less concern about the agency incurring overtime costs;
and (2) she discussed the situation with the RMO and he understood that
her work would be covered. There is insufficient evidence to permit
complainant to go to trial based solely on his prima facie comparison
to a female clerk or a male supervisor who did not (like complainant)
openly dispute and ignore RMO's instructions, and who did not cause the
agency to incur overtime. The AJ found no discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. On appeal, complainant contends that the EEO counseling
and investigative process were not conducted properly. In addition, he
asserts that he was undergoing work-related stress during the relevant
time-period. In response, the agency requests that we affirm the final
order.
Initially, as to the argument that the EEO counseling and investigation
were not properly conducted, we note that any deficiencies in these
processes were subject to being cured/corrected under the aegis of
the Administrative Judge who assumed total authority over this case
once complainant requested a hearing. We note additionally that as to
this particular AJ's conduct of the hearing proceedings, we discern no
abuse of discretion. Administrative Judges have broad discretion in
the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110)
at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000).
Disparate Treatment
The allocation of burdens and order of presentation of proof in a
Title VII and ADEA case alleging disparate treatment discrimination is
a three step procedure: complainant has the initial burden of proving,
by a preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Assuming that claim (1) constitutes an adverse action which rendered
complainant aggrieved, the agency has articulated legitimate,
nondiscriminatory reasons; namely, complainant was provided with a
telephone number that he could call if he had questions about how to
complete the forms. As to claim (2), management stated that complainant's
request for more than 2 hours of leave to attend the funeral was denied
because he was needed at work. Further, complainant was suspended because
of openly disputing and ignoring RMO's instructions, misrepresenting a
medical condition and causing the agency to incur overtime. Complainant
has not presented persuasive proof of pretext as to these issues.
Religious Accommodation
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) 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).
In this instance, assuming that complainant held a bona fide religious
belief that he needed to attend the Catholic Mass funeral of his former
co-worker, the agency has shown that it provided complainant with a de
minimis accommodation (granting complainant 2 hours of leave, because
more than this would cause the agency to incur overtime costs), which
is all that is required by law.4
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.5 See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 21, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 Complainant alleged that his physical disability consisted of "partial
right knee ACL, left foot plantar fasciitis, high blood pressure and
sleep apnea." For purposes of this decision, we assume arguendo that
complainant is disabled within the meaning of the Rehabilitation Act.
3 The essence of complainant's claim is that the Injury Compensation
Office would not tell him how to complete the form.
4 An agency must reasonably accommodate an employee's religious beliefs
unless to do so would prove an undue hardship, i.e., more than a de
minimis cost, on the agency's operations. Banks v. Department of Interior,
EEOC Request No. 05920680 (March 4, 1994).
5 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120070018
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036