0320130027
09-19-2014
Petitioner, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
Petitioner,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Petition No. 0320130027
MSPB No. SF-0752-11-0430-I-1
DECISION
On May 17, 2013, Petitioner filed a timely petition with the Equal Employment Opportunity Commission, asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
Petitioner worked as a Supervisory Electrical Engineer at the Agency's Bonneville Power Administration facility in Vancouver, Washington. In 2008 and 2009, the Agency notified employees about the need to get new federally required identification badges, called Smart Cards. Smart Cards are "smart" because they contain computer chips that store biometric information (distinctive, measurable characteristics used to label and describe individuals), including fingerprints and digital photographs. Smart Cards are part of the federal government's effort to standardize identification of all federal employees.
In May 2010, Petitioner requested a religious accommodation for the Smart Card enrollment process. Petitioner generally appeared to object to any method of biometric authentication that would electronically store his unique physiological characteristics, like fingerprints, in a computer system, and use such biometric information to automatically and accurately identify him and control his access to systems. For the Smart Card enrollment process in particular, Petitioner objected to having his fingerprints digitized and stored in a computer system that could be used for automated identification and access control.1
Petitioner's religious objection regarding biometric identification and authentication was based on a passage from the Bible, the book of Revelation chapter 13, verses 11-17, which states:
Then I saw another beast, coming out of the earth. He had two horns like a lamb, but he spoke like a dragon. He exercised all the authority of the first beast on his behalf, and made the earth and its inhabitants worship the first beast, whose fatal wound had been healed. And he performed great and miraculous signs, even causing fire to come down from heaven to earth in full view of men. Because of the signs he was given power to do on behalf of the first beast, he deceived the inhabitants of the earth. He ordered them to set up an image in honor of the beast who was wounded by the sword and yet lived. He was given power to give breath to the image of the first beast, so that it could speak and cause all who refused to worship the image to be killed. He also forced everyone, small and great, rich and poor, free and slave, to receive a mark on his right hand or on his forehead, so that no one could buy or sell unless he had the mark, which is the name of the beast or the number of his name.
New International Version.
Petitioner believed that accepting the mark of the beast is an abomination to God, as stated in Revelation 14:9-12:
A third angel followed them and said in a loud voice: "If anyone worships the beast and his image and receives his mark on the forehead or on the hand, he too, will drink of the wine of God's fury, which has been poured full strength in the cup of his wrath. He will be tormented with burning sulfur in the presence of the holy angels and of the Lamb. And the smoke of their torment rises forever and ever. There is no rest day or night for those who worship the beast and his image, or for anyone who receives the mark of his name." This calls for patient endurance on the part of the saints who obey God's commandments and remain faithful to Jesus.
Id.
Petitioner believed that the apocalypse was approaching because of how governments were collaborating together to eventually form a "one world government" that would "mark everyone on the planet except those who have chosen not to be marked." Agency Exhibit 104, Petitioner's Deposition, at 14. The governments "will basically be like God to the people. So people will look to the governments for their security instead of to God for their security." Id.
The Agency's Chief Human Capital Officer attempted to find an accommodation that would meet Petitioner's religious objections. The Chief Human Capital Officer proposed to have Petitioner provide his fingerprints on paper, which would then be transferred to the U.S. Office of Personnel Management, the Federal Bureau of Investigation, and state law enforcement departments, for a criminal background check. If no criminal history was found, the Federal Bureau of Investigation and the state law enforcement departments would not retain his fingerprints. The Agency would then issue Petitioner a Smart Card without storing his fingerprints on the Smart Card. Petitioner rejected this proposal because it ignored his religious objection to providing fingerprints for biometric purposes.
Petitioner suggested other accommodations: allow him to report to security each morning; have his supervisor verify his identity if the security guard did not recognize him; allow him to telecommute; or issue him a local site badge normally used as a temporary transitional badge. The Chief Human Capital Officer felt that none of Petitioner's suggested accommodations were practical or addressed the Agency's need to periodically investigate Petitioner's background. He concluded that there was no workable alternative process that would avoid causing an undue burden to the Agency. The Chief Human Capital Officer also rejected the possibility of laterally transferring or reassigning Petitioner to another position, given that all federal government employees were required to go through the Smart Card enrollment process. Therefore, on March 1, 2011, the Chief Human Capital Officer sustained the charge of "failure to enroll in the process to obtain a Smart Card, possession of which is a condition of employment," and found it appropriate to remove Petitioner.
Merit Systems Protection Board
Petitioner filed a mixed case appeal with the MSPB, alleging that the Agency discriminated against him on the basis of religion (Christian) when it denied him a religious accommodation for the Smart Card enrollment process, thereby resulting in his removal. In addition, Petitioner alleged that the Agency retaliated against him when the Chief Human Capital Officer, while reviewing Petitioner's religious accommodation request, changed Petitioner's job's public trust designation from "low risk" to "high risk" on January 12, 2011, thereby requiring him to submit to a new background investigation that required fingerprints.
An MSPB Administrative Judge (AJ) held a hearing and issued an initial decision. First, the AJ sustained the Agency's charge of "failure to enroll in the process to obtain a Smart Card, possession of which is a condition of employment."
Second, the AJ found that Petitioner established a prima facie case of failure to accommodation his religious beliefs, in that Petitioner's religious beliefs were sincere and bona fide and conflicted with the Agency's requirement that he obtain a Smart Card that contained digitally stored biometric identification.
Third, the AJ found that the Agency made a good faith effort to explore potential accommodations. The Chief Human Capital Officer testified that he understood Petitioner's religious objection to the Smart Card to be that he did not wish to be fingerprinted for the purposes of having his biometrics encoded or stored on the smart Card. He believed the accommodation he offered to Petitioner, that his fingerprints not be encoded on the Smart Card, eliminated the conflict between Petitioner's religious beliefs and the Agency's security requirements. But once Petitioner made clear he was unwilling to provide his fingerprints under any circumstances, the Chief Human Capital Officer was unable to find any other solutions. Although the proposed accommodation did not in fact eliminate the conflict between Petitioner's religious beliefs and work, the AJ found the Agency actively attempted in good faith to find a reasonable accommodation.
Fourth, the AJ found the Agency was unable to accommodate Petitioner's religious objection without incurring undue hardship. The AJ found that Petitioner's proposed accommodation of issuing him a Smart Card without his fingerprints would involve more than a de minimis burden because it would not comply with government-wide security policies and directives, such as Homeland Security Presidential Directive 12: A Policy for a Common Identification Standard for Federal Employees and Contractors (HSPD-12) and Personal Identity Verification of Federal Employees and Contractors (FIPS 201).
HSPD-12 mandated the establishment of a government-wide standard for a secure and reliable form of identification, one that is issued based on sound criteria for verifying identity; is strongly resistant to identity fraud, tampering, counterfeiting, and terrorist exploitation; and can be rapidly authenticated electronically.
To that end, FIPS 201 established the standards for a common form of identification for all federal employees and contractors, a badge containing a photograph and a chip in which biometric information was stored, including fingerprints. The standard requires fingerprints for law enforcement checks as part of the identity proofing and registration process and to be stored on the card for "automated authentication during card usage."
The AJ found that it would be an undue hardship to accept Petitioner's continued employment as a Supervisory Electrical Engineer for a huge electric utility with responsibilities for the reliability of the northwest and west coast power systems, without a Smart Card that complied with the standards in the Agency's policies, HSPD-12, and FIPS 201.
The AJ found Petitioner's proposed accommodations would impose an undue hardship on the Agency's operations.
* According to the Agency's policy on security badges, the local site badge is not HSPD-12 compliant and is not recognized as meeting the requirements of the new Agency security badge.
* The AJ credited the Chief Human Capital Officer's testimony that it would be impractical to have Petitioner report to the security guard each time he arrived to work, or to have his supervisor identify him to the security guard, because security guards are present at the office only during business hours, and Petitioner's supervisor is not always in the office.
* Allowing Petitioner to telecommute was not a reasonable option, given Petitioner's position as the supervisor of 19 employees, as well as the Agency's requirement that all employees have a Smart Card to access its facilities and computer systems.
Overall, the AJ found that each of Petitioner's proposed alternatives would be unduly burdensome to the Agency's management of the security of cyber information and physical security by verifying the personal identity of all federal employees through a common and reliable form of identification, the Smart Card. Therefore, the AJ found that Petitioner did not prove his affirmative defense of discriminated based on his religion due to the Agency's failure to accommodate his religious beliefs.
For Petitioner's allegation that the Agency retaliated against him for prior EEO activity when the Chief Human Capital Officer changed his public trust designation, the AJ found the Chief Human Capital Officer articulated a legitimate, non-retaliatory reason for his actions. The Chief Human Capital Officer explained that many of the public trust designations were inaccurate, and starting in 2009, the Agency changed the designations of many employees, a process that has continued to the present. The AJ found the Chief Human Capital Officer to be credible in his testimony, denying that Petitioner's EEO activity had been a motivation for changing Petitioner's public trust designation. The AJ found the Chief Human Capital Officer at the hearing to be open, calm, forthright, and non-evasive. His testimony was consistent with the statements he made in his prior written communications with Petitioner. The AJ found no evidence suggesting that the Agency had a motive to retaliate against Petitioner, a valued employee of 22 years, because of his EEO activity.
Petitioner filed a petition for review with the Board. On April 17, 2013, the Board issued a final order, upholding the MSPB AJ's initial decision.
Petitioner then filed a petition with the EEOC.
ANALYSIS AND FINDINGS
Standard of Review
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq.
Upon review, the Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
Religious Accommodation and Undue Hardship
Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. 29 C.F.R. � 1605.2(b). To establish undue hardship, the employer must demonstrate that the accommodation would impose "more than de minimis cost" on the operation of the employer's business. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer's business. EEOC Compliance Manual, Section 12: Religious Discrimination, EEOC No. 915.003 (July 22, 2008).
Upon review, we determine that the MSPB's decision with respect to the allegation of denial of religious accommodation constitutes a correct interpretation of the applicable laws, rules, regulations, and policy directives, and is supported by the evidence in the record as a whole.
First, we find that Petitioner's religious beliefs were sincerely held and conflicted with the Agency's security requirements for enrolling and obtaining a Smart Card. While Petitioner's religious beliefs tolerated more traditional means of access control, including token-based identification systems, such as a driver's license or passport, and knowledge-based identification systems, such as a password, his religious beliefs opposed newer, automated biometric identification system, which used biometric identifiers that are unique to individuals and are therefore more reliable in verifying identity.
In our Compliance Manual on Religious Discrimination, we have stated, "If a religious practice actually conflicts with a legally mandated federal, state, or local security requirement, an employer need not accommodate the practice because doing so would create an undue hardship." Id. Here, Petitioner's religious beliefs conflict with legally mandated federal security requirements for using biometric authentication methods to enroll and issue Smart Cards and to perform security background checks. We conclude that the Agency in this case was not required to accommodate Petitioner's religious beliefs by devising an alternate process for Smart Card enrollment and security background checks that used older, less reliable identification methods. To create a new non-electronic, non-digital, non-computerized, biometric-free process for Smart Card enrollment and security background checks would create more than de minimis cost on the Agency's operations.
Petitioner argues it would not be an undue burden to excuse him from having to submit his fingerprints because OPM, the FBI, and the Smart Card enrollment process excuse or provide alternative methods whenever federal employees cannot provide usable fingerprints for all ten fingers.
We find this argument unconvincing, in that the issue, as Petitioner has repeatedly pointed out, is not whether any particular process will require him to submit fingerprints. The issue is whether any of these processes will use the techniques of automated biometric identification and authentication. There is nothing in the policies that Petitioner has cited that suggests they would not utilize some method of biometric identification that would be stored on a computer and would involve some level of automation to perform a sufficiently reliable security background check. Petitioner can identify no real-world examples involving federal employees who have used analog, biometric-free processes in enrolling for a Smart Card or undergoing a security background check. The only examples he references involve a New York City police officer and Canadian workers, examples we find to be irrelevant and inapplicable to this federal sector case.
Therefore, we conclude that the MSPB's decision with respect to the allegation of denial of religious accommodation constitutes a correct interpretation of the applicable laws, rules, regulations, and policy directives, and is supported by the evidence in the record as a whole.2
Retaliation
In his petition for review, Petitioner essentially argues that the Chief Human Capital Officer's articulated reason for raising his public trust designation from "low risk" to "high risk" was a pretext to hide a retaliatory motive, in that the "high risk" designation was not warranted because his position had neither access to priority resources or property nor responsibility for protecting or controlling information technology systems. Rather, Petitioner asserts that the Chief Human Capital Officer revised Petitioner's public trust designation in order to require him to undertake a new security background check and prevent him from obtaining the Smart Card.
Upon review, we conclude that the MSPB's decision with respect to the allegation of retaliation constitutes a correct interpretation of the applicable laws, rules, regulations, and policy directives, and is supported by the evidence in the record as a whole. Petitioner has presented no objective evidence that would allow us to disturb the MSPB AJ's credibility determinations based on the Chief Human Capital Officer's demeanor and testimony at the hearing. An employer's business decision cannot be found retaliatory simply because it appears, as Petitioner argues, that the Chief Human Capital Officer acted unwisely or that his decision to re-designate a whole class of positions as "high risk" was in error or a misjudgment.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
__9/19/14________________
Date
1 In his June 6, 2011 deposition, Petitioner testified: "Once my fingerprints are provided and they are either given directly into electronic form or they are transferred to electronic form from a hard copy, they will be-once they're digitized, they're put into a computer system. Once they're in a computer system, they can be used for automated identification and access control. That's my concern. . . . The issue is having my fingerprints digitized and stored on computer systems. . . . Once it's stored on one computer system, they could be sent to any other computer system. It doesn't matter. I don't want them stored on any computer system." Agency Exhibit 104, Petitioner's Deposition, at 36-38.
2 We note that the Title VII "undue hardship" defense is defined very differently than the "undue hardship" defense for disability accommodation under the Americans with Disabilities Act (ADA). Under Title VII, the undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation in a particular case poses a "more than de minimis" cost or burden, which is a far lower standard for an employer to meet than undue hardship under the ADA, which is defined in that statute as "significant difficulty or expense." Therefore, this case does not resolve the question of whether there would be an undue hardship for the Agency to provide a reasonable accommodation for an individual with a disability who was not able to submit fingerprints in order to obtain a Smart Card or undergo a security background check.
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0320130027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320130027