Michel M., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency. Appeal No. 0120140854 Hearing No. 480-2012-00236X Agency No. 4F-920-0085-11 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's November 25, 2013 final action concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a City Letter Carrier at the Agency's Loma Linda Post Office facility in Loma Lima, California. On July 20, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of religion (Seventh Day Adventist) when: 1. beginning April 23, 2011, his day off was changed from Saturdays to Sundays; and 2. after the change of schedule, the Agency failed to provide him with a reasonable accommodation so that he would not be required to work on his Sabbath Day. After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On September 30, 2013, the AJ issued a decision by summary judgment in favor of the Agency. The AJ found that the record contained the following undisputed facts. For several decades before 2011, the Loma Linda Post Office was one of the few post offices in the United States that regularly delivered mail on Sunday but did not deliver mail on Saturday. The AJ noted that a large factor in adopting this practice was the substantially large population of Seventh Day Adventists in Loma Linda. The AJ further noted that members of the church, including Complainant, observe Saturday as their day of worship. The AJ noted that prior to the events at issue all letter carriers at the Loma Linda Post Office had been assigned to a rotating schedule. Under this old schedule, all carriers, including Complainant, had two days off each week. Each carrier had Saturday off and another day that changed from week to week. The AJ noted that according to Article 41, Section 2 of the Memorandum of Understanding (MOU) between the Loma Linda carriers and Agency management required that all full-time carriers be assigned a rotating schedule. It specifically forbade assigning carriers to a fixed schedule. On September 28, 2010, the Loma Linda Officer-in-Charge (OIC) submitted a proposal to the Senior Operating Manager to change the day of non-delivery of mail at Loma Linda Post Office from Saturday to Sunday. The applicable collective bargaining agreement required that employees who were assigned to work on Sundays receive a premium rate of pay of 125% of their regular hourly wage. The AJ noted that Agency officials indicated that switching the non-delivery day to Saturday from Sunday would result in an estimated annual savings of $48,000. The Senior Operating Manager concurred with the OIC's proposal, and submitted it for final approval to the Agency's San Diego District. The district approved the proposal. On February 7, 2011, the OIC met with the letter carriers and informed them of the pending change of day of non-delivery from Saturday to Sunday. The AJ noted that on April 18, 2011, Complainant's representative sent a letter to the OIC notifying him that Complainant belonged to the Seventh Day Adventist church and that Complainant could not work on Saturdays because of his observance of the church's Sabbath. The subject letter also requested that the OIC "explore any and all opportunities to provide reasonable religious accommodation" for Complainant. The AJ noted although the subject letter did not specify a particular accommodation, Complainant stated that he wanted a schedule that did not require that he be assigned to work on any Saturday. On April 20, 2011, the OIC gave written notice to the letter carriers, including Complainant, that the schedule of each carrier would be changed from Saturday off to Sunday off, plus a rotating day off, effective April 23, 2011. The OIC informed Complainant that he could request annual leave, or leave without pay, on Saturdays. The AJ noted, however, the collective bargaining agreement required that requests for leave from more than one carrier for the same day had to be approved in order of the requestor's seniority. The record reflects that from April 23, 2011 through August 26, 2011, Complainant was permitted to take annual leave on six Saturdays. The AJ noted while Complainant was not scheduled to work on another three Saturdays, he was required to work six Saturdays. The record reflects that the OIC stated that trading schedules with other carriers was also an available option for Complainant. However, the OIC conceded he was unsuccessful when he contacted other post offices to explore whether other letter carriers could substitute for another letter carrier, who was also a Seventh Day Adventist and seeking accommodation. Based on these facts, the AJ concluded that Complainant established a prima facie case of religion discrimination when the Agency failed to accommodate his religion beliefs. The AJ found, however, that the Agency made a good faith effort to reasonably accommodate Complainant's religious beliefs. Specifically, the AJ noted that Agency management took the following action: it granted Complainant's leave requests when possible; and it notified him that he could trade schedules with other letter carriers and contacted other post offices to explore whether other letter carriers could substitute at the Loma Linda Post Office. The AJ noted that the specific accommodation that Complainant wanted as a permanent schedule that gave him Saturday off. The AJ found that the only options to achieve this outcome would be to either (1) change Complainant's schedule to a fixed schedule with every Saturday off or (2) grant each of his leave requests. The AJ noted, however, the first option (fixed schedule) would have required the Agency to violate the MOU that required all letter carriers to have rotational schedules. The second option (granting Complainant each leave request for Saturday) would have required the Agency to violate the collective bargaining agreement provision that required that leave requests be approved in order of seniority. Therefore, the AJ determined that the Agency satisfied its burden of demonstrating that, despite its good faith efforts to reasonably accommodate Complainant's religious beliefs, the only options that would never require Complainant to work on a Saturday would constitute an undue hardship on the Agency. The Agency issued its final action fully implementing the AJ's decision. The instant appeal followed. 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. 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 does not sit as a fact finder. Id. 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. A disputed 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. Catreet, 477 U.S. 317, 322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of a case. If a case can only be resolved by weighing conflicting evidence, a hearing is required. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmond v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). 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 a complainant to demonstrate that: (1) he has a bona fide religious belief, the practice of which conflicted with employment; (2) he informed the agency of this belief and conflict; and (3), the agency nevertheless enforced its requirement against a complainant. Heller v. EBB Auto Co., 8 F3rd 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984). Applying this analysis to the instant case, we find that there is no dispute that Complainant has established a prima facie case of discrimination on the basis of religion. Once the prima facie case is established, the burden shifts to the agency to demonstrate that it cannot reasonably accommodate a complainant without incurring undue hardship, or that a complainant has been accommodated. Title VII, 701(j), 42 U.S.C. § 2000(e)(j); 29 C.F.R. § 1605.2(c) (1); Protos v. Volkswagen of America, Inc., 797 F.2d 129, 133 (3rd Cir. 1986). 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. 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). A showing of undue hardship cannot be merely hypothetical, but must instead include evidence of an actual imposition on coworkers, or disruption of work schedules or routines. Tooley v. Martin Marietta, 648 F.2d 519, 521 (4th Cir. 1987). Because Complainant established a prima facie case, we turn to the issue of whether the Agency demonstrated that it could not have reasonably accommodated Complainant without undue hardship. In doing so, we find that summary judgment was not appropriate in this case as genuine issues of material fact exist that can only be resolved through a hearing. The Agency has in essence asserted that it would have incurred undue hardship if it excused Complainant from the Saturday rotation because to do so would violate its agreement with its union. Moreover, the Agency has asserted that it provided Complainant alternative accommodation by granting his annual leave requests when possible and allowing him to swap shifts with other letter carriers. On appeal, however, Complainant disputes the Agency. Complainant disputes the Agency's representation that the change in delivery schedule at Loma Linda was justified by "business necessity." Complainant argues that for over eighty years, the Loma Linda Post Office delivered mail on Sundays and was closed on Saturday. He contends that Loma Linda was one of the eight post offices in the nation, in areas with significant populations of Seventh Day Adventists, that did not deliver mail on Saturdays. Complainant states "on information and belief, none of the other seven (7) post offices have changed their delivery dates from Sunday to Saturday." Complainant also argues that "on information and belief, the Agency failed and refused to involve management in this EEO process who had the authority to revisit the issue of the schedule change." Complainant also states that "Agency witnesses asserted that the change would permit the delivery of mail a day earlier. But there is nothing in the record to indicate whether this is important, or necessary. After all. Loma Linda residents have been receiving mail on Sunday for eight-one years. Why not, is it necessary for them to get their weekend mail a day earlier? And if it really is a business necessity, why have the other seven (7) post offices in Adventist communities not made a similar shift to Saturday mail delivery." Complainant notes that Agency management asserted that the schedule change would save the Agency $48,000 annually. Complainant states "discovery has not been conducted to determine how this figure was calculated. It is said to represent the premium pay associated with Sunday labor. Assuming that the figure is accurate, the burden remains on the Agency to prove that saving this sum of money amounts to a business necessity. After all, it has been incurring premium pay for Sunday delivery for many years. Did the Agency attempt to negotiate with the letter carriers union a revised MOU for Loma Linda to eliminate premium pay for Sunday? If the premium pay was the issue, why not ask that Sunday in Loma Linda be treated as Saturday in other places? In any event, the factual record is inadequate to determine whether the savings of $48,000 is sufficiently sufficient as to amount to a business necessity." Complainant also alleges that, although asserting it provided alternative reasonable accommodation, Agency management made no efforts to assist him in making schedule trades with other letter carriers and gave him no concrete offer of contacting other post offices to see if other letter carriers could substitute for him. Complainant states that the Agency's assertions that "it has met its obligation to provide religious accommodation to the four Adventist mail carriers who observe the Sabbath. Yet, the record is woefully incomplete. Each of the mail carriers has had to work many Saturdays because they cannot all obtain religious accommodation in such a small post office." Given these circumstances, there are significant issues of material fact that need to be resolved through determinations made during a hearing, including rulings on the credibility of witnesses. Among those issues is whether or not it would impose an undue hardship on the Agency to revisit its decision to change the schedule in light the impact the change has had on its Adventist carriers, including Complainant. And even if there are legitimate business reasons for the change, there are significant disputes about whether or not Agency efforts to provide Complainant with religious accommodation have been adequate and effective. In addition, there needs to be exploration of the impact of the Agency's agreements with its union and any efforts it might have made to negotiate exceptions with the union that would have aided in the accommodation of Complainant's religious beliefs. Therefore, we find that the issuance of a decision without a hearing in this case was not warranted under 29 C.F.R. § 1614.109(g). The Commission REVERSES the Agency's final action and REMANDS the matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency shall submit to the Hearings Unit of the EEOC's Los Angeles District Office the request for a hearing, as well as the complaint file, within thirty (30) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit of the Los Angeles District Office. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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 January 28, 2015 __________________ Date 2 0120140854 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140854