0120110505
01-06-2012
Robert Norris, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Robert Norris,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120110505
Hearing No. 450-2010-00087X
Agency No. HS-09-TSA-006264
DECISION
Complainant filed an appeal from the Agency’s November 5, 2010 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 Transportation Security Officer (TSO) at the Agency’s
Dallas-Fort Worth Airport (DFW) facility in Dallas, Texas. On June
26, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of religion (Baptist) when:
Complainant did not receive a response to his request for a religious
accommodation on March 9, 2009, to take time off to attend church
on Sundays.
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 EEOC Administrative Judge (AJ). Complainant
requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and over Complainant's
objections, issued a decision without a hearing on July 1, 2010. AJ’s
Summary Decision (AJ Decision), July 1, 2010, Record on Appeal (ROA) at 7.
In her Decision, the AJ found that the material facts were not in dispute.
Specifically, the AJ found that Complainant worked as a transportation
security officer (TSO) since 2004. On March 9, 2009, Complainant
requested a flexible schedule allowing him to have Sundays off so that
he could attend his church services. In response, the Agency notified
Complainant in April 2009, that Complainant could arrange a voluntary
swap with co-workers or use leave to accommodate his religious beliefs.
AJ’s Decision at 7. The AJ found that the Agency met its obligation
to provide Complainant with an accommodation for his sincerely held
religious beliefs. Id. The AJ considered that this accommodation
was not the accommodation of Complainant’s choice, nevertheless,
Complainant had taken leave on a number of Sundays and had not attempted
to arrange a voluntary swap with another co-worker in order to attend
Sunday services. Id. The AJ concluded that the material facts were not
in dispute and that Complainant had not shown that he was subjected to
discrimination based on his religion as alleged. Id. at 8.
More than forty days after the AJ issued her Decision, the Agency
issued a Final Order on November 5, 2010, adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. ROA at 5.
CONTENTIONS ON APPEAL
Complainant states, as he did in submissions to the AJ, that the Agency
failed to establish that providing him with a flexible schedule would pose
an undue hardship for the Agency, and accordingly, a hearing is necessary
to resolve whether or not such hardship exists for the Agency preventing
the Agency from providing Complainant with his requested accommodation.
ANALYSIS AND FINDINGS
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 103, 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29
C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion
for a decision without a hearing).
Under Title VII of the Civil Rights Act of 1964, employers may be
liable for failure to accommodate the religious practices of their
employees absent proof that such accommodation could not be made
without imposing an undue hardship on the employer. 42 U.S.C. 2000e(j);
29 C.F.R. Section 1605.2(b)(1). To establish a prima facie case of
discrimination a complainant must demonstrate that: (1) he has a
bona fide religious belief, the practice of which conflicted with his
employment; (2) he informed the agency of this belief and conflict;
and (3) the agency nevertheless enforced its requirement against him.
See Terenyi v. Dep’t of Trans., EEOC Appeal No. 01A05190 (February 13,
2002) (citations omitted), request for reconsideration denied, Request
No. 05A20542 (June 14, 2002).
Once a complainant establishes a prima facie case, the burden then shifts
to the employer to: (1) conclusively rebut one or more elements of the
prima facie case; (2) show that it offered a reasonable accommodation;
or (3) show that it was unable reasonably to accommodate the employee's
religious needs without undue hardship. See id. Pursuant to 29
C.F.R. Section 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.
In the instant case, we assume as we must in the case of a decision
rendered without a hearing, that Complainant’s position that providing
him with a flexible schedule would not impose an undue hardship on the
Agency. Nevertheless, we find, as did the AJ, that the Agency is not
obligated to provide Complainant with the accommodation of his preference,
but with an effective accommodation, and that the Agency did just that
by timely notifying Complainant of his option to seek a voluntary swap
for the time he needed to attend Sunday services or to use leave. See id.
CONCLUSION
We AFFIRM the Agency’s Final Order finding no discrimination.
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.
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
January 6, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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