Cherie F., Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120110730 Hearing No. 530-2008-00230X Agency No. HS07TSA002162 DECISION On November 5, 2010, Complainant filed an appeal from the EEOC Administrative Judge's (AJ's) "Corrected Order Entering Judgment" dated September 29, 2010, concerning her 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. The appeal is accepted pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUE PRESENTED Whether there is substantial evidence in the record to support the AJ's finding that: Complainant failed to establish that she was discriminated against on the basis of sex (female), religion (United Methodist), and in reprisal for prior EEO activity when she was asked religious and sex-based inquiries during an interview on September 13, 2006. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Transportation Security Officer at the Agency's Huntington Airport in Huntington, West Virginia. On or about September 13, 2006, Complainant sat for an interview for a Screening Manager position with a panel of interviewers. During the interview, Complainant testified that one of the interviewers asked her whether she "could handle the job of manager as a single parent and whether she would want the job if she had to work on Sundays." Complainant states that she advised the interviewers that she would be flexible and would accept the limitations on her Sunday worship if she were scheduled on Sundays. On or about October 15, 2006, the Agency selected someone other than Complainant for the Screening Manager position.1 In October 2006, the Screening Manager changed the schedule of four supervisors, including Complainant's. The Screening Manager indicated that the purpose of the schedule change was to ensure supervisory coverage on the weekends, and to cope with the addition of a new flight. On November 3, 2006, via email, Complainant requested Sundays off for religious observance so she could attend church services with her children. On November 8, 2006, the Screening Manager denied Complainant's request for "operational reasons" without discussing the request with Complainant. The Screening Manager reasoned that she needed female screeners on the afternoon shift and the other supervisors had already made their preferences known through their bids. On September 23, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on August 27, 2009, and issued a decision on September 23, 2009. When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant proved that the Agency subjected her to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. § 1614.109(i). Specifically, the AJ found that Complainant failed to establish that she was subject to discrimination as alleged when she was asked improper sex and religion-based questions during the September 2006 job interview, but that the Agency did discriminate against her on the basis of religion when it denied her request for accommodation, not allowing her to arrange voluntary swaps in schedule. The AJ found the Agency's testimony regarding improper sex and religion-based testimony more credible than Complainant. The AJ held the Agency officials' notes indicate that Complainant was the first to raise her single parent and religious observance status with respect to flexibility. Additionally, the AJ found credible Agency officials' testimony that once Complainant stated that neither her single parent status nor her religious observance would keep her from being flexible they considered the matter resolved. With respect to Complainant's November 2006 request for a religious accommodation, the AJ found that no effort to accommodate Complainant's request was made. The AJ found that the Agency failed to engage in an interactive process with Complainant, failing to even discuss or suggest the voluntary swap process in an effort to determine whether it would accomplish her goal of being off on Sundays to attend church services. The AJ held that while a conversation between Complainant and the screening manager occurred, it happened after the accommodation request was already denied. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant requests full review of the AJ's September 29, 2010 decision on all of her claims, including: sex discrimination, religious discrimination, reprisal for prior EEO activity regarding a reasonable accommodation of her work schedule for religious observance, hostile work environment, and wrongful termination. STANDARD OF REVIEW 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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). ANALYSIS AND FINDINGS In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must 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. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). 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 an employee 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). "A refusal to accommodate is justified only when an employer ... can demonstrate that an undue hardship would in fact result from ... (an] accommodation." 29 C.F.R. § 1605.2(c). Pursuant to 29 C.F.R. § 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 Bd. of Educ. 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 (1977). Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § IV.A. (Nov. 9, 1999). We find that Complainant hasn't raised any specific issue with what the AJ found in his decision. Based on our review, we find that substantial evidence in the record supports the AJ's finding the Complainant failed to establish that she was discriminated against on the basis of sex, religion, and in reprisal for prior EEO activity when she was asked religious and sex-based inquiries during an interview on September 13, 2006; but that she established discrimination on the basis of religion when her request for religious accommodation on November 3, 2009 was denied. We find no basis in the record to disturb the Agency's final order. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that substantial evidence in the records supports the AJ's decision. Accordingly, the Agency's final order is AFFIRMED. The Agency will comply with the corrective action stated below. ORDER Within one-hundred and twenty (120) calendar days of the date this decision becomes final, the Agency, to the extent that it has not done so already, is ORDERED to take the following actions: 1. The Agency shall restore eight hours of annual leave to Complainant for December 24, 2006, and pay her for those eight hours to compensate her for the eight hours of annual leave she would not have taken but for the discrimination occurring in this case; 2. The Agency shall pay Complainant $4000.00 in non-pecuniary compensatory damages; 3. The Agency shall reimburse Complainant's former counsel in the total amount of $7336.00. Additionally, the Agency shall reimburse Complainant $244.00 for the consultation fees she paid another firm; 4. The Agency shall provide eight (8) hours of EEO training to the involved management officials regarding their responsibilities under EEO laws. Specifically, the training should focus on the requirements of religious accommodations and how to avoid discriminating against employees on the basis of religion; 5. The Agency shall consider taking appropriate disciplinary action against management officials responsible for the discrimination against Complainant. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the Agency shall furnish documentation of their departure date(s); and 6. The Agency shall post a notice in accordance with the paragraph below entitled "Posting Order." The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation and evidence that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Huntington Airport facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 __4/15/14________________ Date 1 The Commission notes that Complainant did not seek EEO counseling regarding non-selection for the position of Screening Manager until July 3, 2007. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120110730 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120110730