01a55011
11-29-2005
Sidney Rosenberg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sidney Rosenberg v. United States Postal Service
01A55011
November 29, 2005
.
Sidney Rosenberg,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55011
Agency No. 4A-110-0167-04
DECISION
Complainant filed an EEO complaint in which he claimed that the agency
discriminated against him on the basis of his religion (Jewish) when
his bid position was abolished, effective October 2, 2004. Complainant
claimed that the agency subjected him to disparate treatment and failed
to accommodate his religious beliefs.
The record reveals that complainant, a Sales and Service Associate, PS-5,
had worked at the Kingsway Finance Station in Brooklyn, New York for over
five years and had held his bid with Saturdays off since January 2000.
The agency stated that pursuant to a Function 4 Audit, complainant's
bid was abolished because complainant was needed to work on Saturdays.
On September 27, 2004, complainant notified his supervisor of his need of
an accommodation for his religious observance of the Sabbath on Saturdays.
Complainant's supervisor stated that he could not approve complainant's
request due to the needs of the agency.<1>
The complaint was accepted for investigation. Subsequent to the
completion of the agency investigation, the agency notified complainant
of his right to request either a hearing and decision by an EEOC
Administrative Judge or an immediate final action by the agency.
Complainant requested a final action. The agency therefore issued a
final action dated June 15, 2005, finding that no discrimination occurred.
The agency determined that complainant failed to set forth a prima facie
case of disparate treatment religion discrimination. The agency noted
that two other employees also had their bids abolished, and that the
only one whose bid was not abolished was one who did not have Saturdays
and Sundays as days off. The agency further determined with regard to
any alleged failure to accommodate complainant's religious beliefs that
other positions were available to complainant throughout Brooklyn, which
would have accommodated his Sabbath requirements and for which he did not
elect to bid. The agency stated that six employees, with less seniority
than complainant, received such positions as a result of a voluntary bid.
The agency noted that complainant stated that he would like to remain
in his current station and have Saturday off. According to the agency,
access to the agency's bidding procedure is a form of accommodation,
and complainant's failure to take advantage of it establishes that
discrimination did not occur.
On appeal, complainant contends that the Manager, EEO Compliance &
Appeals, advised him to have a final action issued by the agency rather
than pursue a hearing. Complainant maintains that the agency can
accommodate his request to have Saturdays off since it does not pose an
undue hardship. Complainant states that a Union official advised him
not to bid for another position.
In response, the agency asserts that the Manager, EEO Compliance &
Appeals, denies that he advised complainant to request that a final action
be issued rather than pursue a hearing. The agency further notes that
it is not responsible for the advice of the non�management official who
advised complainant against bidding for other positions. The agency
states that there were seven bids with Saturday and Sunday rest days
where complainant would have been senior to all of the successful bidders.
The agency argues that it is apparent that complainant wanted to observe
the Sabbath without moving from his current work facility. The agency
maintains that it is under no obligation to employ complainant in the
station of his choice, as long as it is willing to provide a reasonable
accommodation. The agency asserts that the seven cited bid positions,
all of which were awarded to less senior employees, and which would
have been awarded to complainant had he bid, demonstrate such reasonable
accommodation.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.
For complainant to prevail, he must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
Initially, we find that complainant has not submitted sufficiently
persuasive evidence to support his contention that the Manager, EEO
Compliance & Appeals, advised him to forego a hearing and have a final
action issued. For purposes of analysis, we will assume, arguendo, that
complainant has established a prima facie case of disparate treatment
discrimination on the basis of religion. Next, the Commission finds
that the agency has articulated legitimate, nondiscriminatory reasons
for its action.
The agency stated that complainant's bid position was abolished pursuant
to a Function 4 Audit that dictated staffing at the Kingsway facility
be realigned due to operational needs. Complainant's supervisor stated
that the Function 4 Audit estimated the need for a certain amount of
positions in the unit. According to complainant's supervisor, he was
asked to give information to the workforce realignment team about what
would be best for the tours of duty for positions and what would make
the most sense regarding days off for the positions. We find that the
agency articulated legitimate, nondiscriminatory reasons for its decision
to abolish complainant's bid position.
We find that complainant has not established that the agency's
operational needs were a pretext intended to hide its discriminatory
intent. Complainant has made no showing that the implementation of the
Function 4 Audit was intended to discriminate against him on the basis
of his religion. We observe that all three level five Sales Associates,
including complainant, had their positions abolished. The only Sales and
Service Associate whose position was not abolished did not have Saturday
and Sunday as his days off, and is Jewish. We find that complainant has
not shown, by a preponderance of the evidence, that the agency's stated
reasons for abolishing his bid position were pretext intended to mask
discriminatory intent.
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. 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
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.
Baum v. Social Security Administration, EEOC Appeal No. 01A05985 (March
21, 2002) (citations omitted).
�A refusal to accommodate is justified only when an employer . . . can
demonstrate that an undue hardship would in fact result from each
available alternative method of accommodation.� 29 C.F.R. � 1605.2(c).
Pursuant to 29 C.F.R. � 1605.2(d), 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 order to show undue hardship, an employer must demonstrate
that an accommodation would require more than a de minimis cost. Baum,
EEOC Appeal No. 01A05985 (citation omitted).
Initially, we find that complainant has established a prima facie case
regarding a denial of religious accommodation. There is evidence
to support the position that complainant has a bona fide religious
belief that he should observe the Sabbath. Complainant informed
his supervisor of this belief on September 27, 2004, prior to his
bid position being abolished and the loss of his Saturday day off.
The record reveals that complainant was afforded several opportunities
to bid on positions in Brooklyn that did not require work on Saturdays.
Complainant would have had a seniority advantage over at least six
successful applicants for such positions. Nevertheless, complainant
chose not to pursue these positions. An agency is not required to
provide the specific accommodation preferred by a complainant and need
only provide an effective accommodation. See Gaytko v. Broadcasting Board
of Governors, International Broadcasting Bureau, EEOC Appeal No. 01A03297
(Sept. 16, 1997) (citations omitted). We find that the agency provided
complainant with an effective accommodation of his religious beliefs when
complainant was provided with the option to bid for positions that would
have permitted him to avoid working on Saturdays. See id. (finding,
in part, that an agency offer that complainant could seek a midnight
shift without Saturday work was an effective accommodation).
The Commission AFFIRMS the agency's decision finding no discrimination.
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
November 29, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant's current bid is at the Kingsway Finance Station with
Thursday and Sunday off.