Stanley P. Laber, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionJun 28, 2001
01A03799 (E.E.O.C. Jun. 28, 2001)

01A03799

06-28-2001

Stanley P. Laber, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.


Stanley P. Laber v. Department of Defense

01A03799

June 28, 2001

.

Stanley P. Laber,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

Agency.

Appeal No. 01A03799

Agency No. EU-95-19

Hearing No. 100-97-7738X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) complaint of unlawful

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. The appeal

is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he

and his minor dependents were discriminated against on the basis of

religion (Orthodox Jew) when his September 1994, requests for approval

of non-Department of Defense schools in Israel were not approved by the

Department of Defense Dependents Schools in Europe, as indicated by a

letter dated November 9, 1994. For the following reasons, the Commission

affirms the agency's final decision.

Complainant was employed by the Defense Logistics Agency (DLA), and was

stationed in Israel during the relevant time period. He filed a formal

EEO complaint with the agency on June 6, 1995, alleging that the agency

had discriminated against him as referenced above. At the conclusion

of the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

Following a hearing, the AJ issued a decision finding no discrimination.

BACKGROUND

Complainant, with his wife and four minor children, was reassigned to

Israel in October 1993. As part of his relocation, schooling for the

children was to be provided by the Department of Defense (DOD) through

its subagency, DOD Dependent Schools (DODDS). Complainant and his family

are Orthodox Jews. His religion requires that his children attend

sex segregated schools. DODDS certifies non-DOD schools pursuant to

standards that enable children to move in and out of schools overseas

and in the United States, depending on their parents' assignments,

while maintaining an education comparable to that of public school

in the United States (U.S.- type). Specifically, DODDS requires that

non-DOD schools provide a U.S.- type curriculum that is taught in the

English language. In October 1993, by letter, complainant was told that

DODDS did not operate a school in Israel, but had certified a school

in Tel Aviv, the Walworth Barbour American International School (AIS).

Complainant was also notified that there were no other DODDS certified,

non-DOD schools available and that enrollment in a non-DOD school had

to be approved prior to enrollment.

The record reveals that in July 1994, complainant enrolled his children in

four different Israeli public schools which were not approved by DODDS.

The children were enrolled in these schools instead of AIS because

complainant's religion required that his children attend sex-segregated

schools and because these schools were operated by the religious

movement of Judaism to which complainant belonged. The classes were

taught in Hebrew.

In September 1994, complainant submitted an application for enrollment

of his children in non-DOD schools. In the application, complainant

explained that the schools were sex-segregated in accordance with his

religion, the school would provide a well rounded religious and secular

education and the instructors had been screened in accordance to his

religious standards. Complainant requested that DODDS provide additional

tutoring in Hebrew for the children and sought reimbursement for

educational expenses and payment for travel expenses incurred in sending

the children to school. Complainant's request was denied by DODDS.

He was told that government funds could only be paid for DOD dependents

attending certified schools and certified schools that provided a U.S.-

type curriculum in English. Complainant was also told that government

funds could not be used to send his children to the religious schools of

his choice. Additionally, complainant was told that his applications

had been rejected because they were filed after he had enrolled his

children in the Israeli schools and agency regulations required approval

prior to enrollment. During the hearing, agency officials testified

that some DOD employees enrolled their children in local schools for

the experience and other religious employees enrolled their children

in religious schools but these employees were not reimbursed for their

costs and incurred these expenses on their own.

The AJ concluded that this case raised issues of both disparate treatment

and religious accommodation. Regarding disparate treatment, the AJ found

that complainant failed to establish a prima facie case of discrimination

because complainant had not shown that he was treated any differently than

similarly situated individuals outside his protected class. Specifically,

the AJ found that other DOD employees that sent their children to schools

other than AIS, did so at their own expense. In addition, other Jewish

employees who enrolled their children in Israeli schools because of their

religious beliefs were not reimbursed for tuition or transportation

costs. Moreover, the AJ found that the only employees reimbursed for

school were those where no DOD or non-DOD approved school was available.

With respect to the issue of religious accommodation, the AJ found that

complainant did not establish a prima facie case because he did not

give the agency advance notice that his children could not attend AIS

because of his religious beliefs and enrolled his children in the Israeli

schools prior to seeking any approval. The AJ found that in effect,

complainant sought to dictate the accommodation without permitting the

agency to explore any options. The agency's final decision implemented

the AJ's decision.

On appeal, complainant restates arguments previously made at the

hearing and contends that the AJ erred when she found that his claim was

barred because he had enrolled his children prior to seeking approval.

He disputes the AJ's finding that the only instance where the agency

approved waivers was in the situation where an employee had no other

school (DOD or non-DOD) available. In response, the agency restates

the position it took in its FAD, and requests that we affirm its final

decision.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

Under Title VII, 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. � 1605.2(b)(1).

To establish a prima facie case of discrimination, 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. 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 the present case, the Commission finds

that the AJ erred when she found that complainant did not establish a

prima facie case of religious accommodation. We find that complainant

has established a prima facie case of discrimination based on religious

accommodation. Specifically, complainant averred that he is an Orthodox

Jew, and the tenets of his religion require that his children attend

sex- segregated schools. Education for dependent children is a benefit

of complainant's employment. Complainant has identified a practice of

his religion which conflicts with the type of schooling available at the

DOD approved school and despite the agency's knowledge of complainant's

religious beliefs, the agency denied his request. As such, we find that

complainant has established a prima facie case of discrimination based

on a failure to accommodate his religion.

Once a complainant establishes a prima facie case, the agency must

show that it made a good faith effort to reasonably accommodate his

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. USPS, EEOC Request No. 05890532 (October 25, 1989). 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. Undue hardship does not become

a defense until the employer claims it as a defense to its duty to

accommodate. Ansonia 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).

As an initial matter, we note that we are not persuaded by the agency's

argument that complainant's failure to alert the agency of his need

for religious accommodation prior to enrolling his children in school

renders his claim unsuccessful. Such logic would render any individual

who entered into a religion subsequent to the date he was hired for a

position unprotected by Title VII. Notwithstanding, we find that there is

sufficient evidence in the record for a finding that the agency engaged in

an effort to find complainant a reasonable accommodation for his religious

requirements, including offering correspondence courses for the children,

which was rejected by complainant. Complainant's only acceptable

accommodation appeared to be the approval of the non-DOD schools by

the agency. As such, the Commission finds that complainant did not prove

his claim of discrimination based on religious accommodation. We find

the schools chosen by complainant did not comply with the requirements

of DODDS, namely, schools that provided a curriculum in English that

would allow dependent children to move in and out of public schools

overseas and in the United States. We also find that complainant refused

the agency's good faith efforts to reasonably accommodate his religious

beliefs and the acceptance of the accommodation proffered by complainant

(tuition and other payments for his children to attend religious school)

would impose an undue hardship on the agency's operations. As such,

the agency satisfied its burden.

After a careful review of the record, the Commission finds that the AJ's

decision as modified above properly summarized the relevant facts and

referenced the appropriate regulations, policies, and laws. We note that

complainant failed to present evidence that any of the agency's actions

were motivated by discriminatory animus toward complainant's religion.

We discern no basis to disturb the AJ's decision. Therefore, after a

careful review of the record, including complainant's contentions on

appeal, the agency's response, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

June 28, 2001

_______________________

Date