Augustine V., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120141486 Agency No. 4J-606-0002-13 DECISION On February 26, 2014, Complainant filed an appeal from the Agency's January 29, 2014, final decision 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full-Time City Letter Carrier at the Agency's Mt. Greenwood Station facility in Chicago, Illinois. On January 16, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of religion (Christian) when: 1. Complainant's request for a religious accommodation by letter dated August 14, 2012, was denied on October 11, 2012. 2. On October 20, 2012, Complainant was issued a letter of warning (LOW) for failure to maintain regular attendance. In brief, the investigation into these claims indicated Complainant, in March 2011, verbally asked the former Station Manager to allow him to have Saturdays off as a religious accommodation in order to observe the Sabbath (which he defined as sundown on Friday to sundown on Saturday). Complainant stated that the former Station Manager told him the accommodation "was not going to happen." The record shows that when a new Station Manager took over, Complainant submitted a written request, dated August 14, 2012, asking for an ongoing schedule change so that he could observe the Sabbath from sundown on Friday to sundown on Saturday. Complainant explained in his letter that he had become a born-again Christian and had begun to observe the seventh-day Sabbath as a sincerely held religious belief. He added that working on the Sabbath violated his religious beliefs. Complainant listed possible accommodations including changing his scheduled day off from Sunday to Saturday; granting his requests for annual leave or leave without pay (LWOP) on Saturdays; provide him with an earlier start time on Friday so that he could be home before sunset; considering Complainant for another position which did not schedule him on Friday evenings or Saturdays; and providing a temporary accommodation until a permanent solution could be arranged. The Station Manager verbally responded that he could not provide Complainant with all Saturdays off because there were too many other people who needed off on that day. Complainant stated that the Station Manager told him that he could submit schedule requests on a weekly basis but management could not grant him every Saturday off. Complainant claimed that on six occasions between July and October 2012, he submitted requests for Saturday off as either scheduled leave or his off-day, but was refused. In October 2012, Complainant received a written response denying his request for religious accommodation. The letter, dated October 11, 2012, was from the acting manager of Human Resources for the Chicago District. The letter again indicated that Complainant would sometimes be accommodated, but that it was not possible to grant Complainant every Saturday off. On October 22, 2012, Complainant received a letter of warning for failure to be regular in attendance, citing eight instances of unscheduled leave, totaling 72 hours, between July 28 and August 20, 2012. Complainant maintained that of the eight instances, two were for sick leave and the remaining six were to keep the Sabbath. Complainant filed a grievance, and the letter of warning was later rescinded.1 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency, for the first time, dismissed claim (2) pursuant to 29 C.F.R. § 1614.107(a)(5) for mootness. The Agency noted that Complainant filed a grievance addressing the LOW. Pursuant to the grievance process, the LOW was rescinded. The Agency determined that the rescission of the LOW met the criteria to be moot. As such, the Agency dismissed claim (2), but also addressed claim (2) on the merits as well. With regard to both claims, the decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Dismissal of Claim (2) The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant's complaint are moot, the factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. We find that the Agency has not shown that the alleged violation would not recur, particularly in light of Complainant's need for a reasonable accommodation. Therefore, we find that the dismissal of the LOW claim was not appropriate. Religious Accommodation As an initial note, we find that Complainant alleged a single claim of denial of religious accommodation. The Agency denied his request to allow him to get home before sunset on Fridays and return to work after sunset on Saturdays. Furthermore, based on his absences which were related to his religious observance, the Agency issued Complainant the LOW. 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). We find that Complainant has established a prima facie case of denial of religious accommodation. Complainant is a Christian who observes the Sabbath which he defined as from sunset on Friday until sunset on Saturday. Complainant provided the Agency with his request for a religious accommodation in August 2012. The Agency denied the request by letter dated October 11, 2012. Following the denial, on October 20, 2012, the Agency issued the LOW based in large part on Complainant's absences on six Saturdays from July 2012 through October 2012. Once a complainant establishes a prima facie case, the Agency must show that it made a good faith effort to reasonably accommodate Complainant's 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 Coporation, 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989). 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 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). After a thorough review of the record, we find that the Agency failed to meet its burden to demonstrate that it made a good faith effort to reasonably accommodate Complainant's religious beliefs, or that to do so would have imposed an undue hardship upon the Agency's operations. There is no evidence in the record that the Agency attempted to obtain voluntary substitutes or swaps for the Saturdays that Complainant was made to work. The Agency has provided no evidence as to why Complainant could not have switched or rotated schedules with other employees who had Saturday off. In particular, the Agency made no showing that it made inquiries into which of Complainant's colleagues might be interested in a swap. We note that Complainant asked for a reassignment to another position that would have permitted him to be off on the Sabbath. However, the Agency failed to show that it even considered this option. Without the type of evidence discussed here, we find that the Agency's contention, that granting complainant's request for the Sabbath as a regular day off would have left the facility short staffed causing an undue hardship, is mere speculation. As such, we find that the Agency failed to provide Complainant with a religious accommodation when he was denied his request and issued a related letter of warning to be in violation of Title VII. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further action in accordance with the ORDER below. ORDER (C0610) The Agency is ordered to take the following remedial action: I. The Agency shall provide Complainant, in writing, a reasonable accommodation of his religious beliefs. To accomplish this remedy, the Agency shall consider all possible methods of accommodating his religious beliefs, including voluntary substitutions or swaps, lateral transfers, or changes in job assignments or crafts. If the Agency is unable to comply it must issue a final agency decision, with appeal rights to the Commission that provides a detailed description of its efforts and explains why it was unsuccessful. II. The Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov). The agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages within 150 calendar days after this decision becomes final. III. To the extent it has not already done so, the Agency shall rescind and permanently remove from Complainant's record the letter of warning issued on October 20, 2012. IV. The Agency shall provide at least eight (8) hours of training to the responsible management officials on Title VII with an emphasis on processing requests of religious accommodation. 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 verifying that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Mt. Greenwood Station 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. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 August 15, 2014 __________________ Date 1 In its FAD, the Agency indicates that Complainant also received several subsequent letters of warning for attendance that were also resolved through the grievance process. No other information about these warnings was provided. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141486 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120141486