U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colby S.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 0120171007 Agency No. FS-2016-00673 DECISION On January 7, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 7, 2016, dismissing his complaint alleging 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Forester, GS-9 with the Agency's Southern Research Station, Forest Inventory & Analysis, in Whitney, Texas. On June 23, 2016, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency failed to accommodate his Christian religious beliefs by denying him a training exemption and directing him to complete an Agency-wide mandatory EEO training module by September 30, 2016. In August 2016, the Agency accepted the complaint for investigation. Following the investigation, the Agency rescinded its acceptance and issued a FAD dismissing the complaint for failure to state a claim. The investigation shows that on April 1, 2016, the Agency launched a mandatory online training course. Report of Investigation, Exh. 8, at 2.2 That same month, the Program Manager, Forest Inventory & Analysis, Complainant's fourth line supervisor (S4), sent a note to everyone asking them to complete the mandatory training by June 3, 2016. Exhs. 10, at 2; and 21.3 In June 2016, the Chief of the Forest Service sent a memorandum to all employees stating the above training was mandatory. Exh. 22. Complainant made S4 aware that he wanted an exemption from the training, and sometime in early August 2016, requested an extension. On August 11, 2016, S4 granted Complainant an extension to September 30, 2016, the final due date set by the Forest Service, and advised he was expected to complete the mandatory training by then. Exhs. 10, at 2, and 21. On August 15, 2016, Complainant emailed S4 requesting to be excused from the non-discrimination training as a reasonable accommodation for his Christian beliefs, and on August 22, 2016, made the same request to the Agency's civil rights office. Exh. 27. By email on August 22, 2016, the Station Director of the Southern Research Station, Complainant's fifth line supervisor (S5), advised Complainant that the training was mandatory and his failure to complete it by the established deadline could result in disciplinary action for failure to follow directions. Exh. 30, at 3. On October 7, 2016, Complainant wrote emails that he took the training under protest because he was threatened with discipline and being placed on a performance improvement plan (PIP). Exhs. 33 & 34. Following receipt of the Agency's dismissal of his complaint, the instant appeal was filed by Complainant. Complainant argues that the Agency denied him religious accommodation and he was harmed. In opposition to the appeal, the Agency submits the same brief it used for two other appeals by employees who requested exemptions from the same nondiscrimination training in this case as a reasonable accommodation for their religious belief.4 It argues that the FAD should be affirmed. ANALYSIS AND FINDINGS This case is unique because the Agency investigated the merits of Complainant's complaint before dismissing it for failure to state a claim. For this reason, we will address whether there is sufficient information in the record to rule on whether Complainant was discriminated against when the Agency did not grant his requests, as a religious accommodation, to be exempt from taking the training at issue. 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). After an employee notifies the employer of his need for a religious accommodation, the employer has an obligation to reasonably accommodate the individual's religion. A refusal to accommodate is only justified when the employer can demonstrate that an undue hardship would result from the accommodation. 29 C.F.R. § 1605.2(c)(1). Undue hardship may be shown where accommodation would cause more than a de minimis hardship on the employer's conduct of its business. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 79-85 (1977); Berg v. Department of Transportation, EEOC Petition No. 03840008 (Nov. 21, 1986). In this case, the Agency is asserting it would impose an undue burden to excuse Complainant from the training. There are situations where an employer can show that it would pose an undue hardship to excuse an employee from any part of a training, even if the employee asserts it is contrary to his religious beliefs to attend. EEOC Compliance Manual Section 12, "Religious Discrimination," No. 915.003, at 83 - 84 (July 22, 2008) (Compliance Manual). Example 54 of the Compliance Manual indicates that because an employer needs to make sure that its employees know about and comply with workplace rules requiring employees not to discriminate against or harass other employees and to treat one another professionally, it would be an undue hardship to excuse an employee from a training which simply discusses and reinforces such conduct rules, but does not attempt to alter the employee's religious beliefs. Applying Example 54, we find that the record on the content of the training at issue is insufficiently developed to allow a determination on whether the Agency can show that it would pose an undue hardship to excuse Complainant from all or part of the training. Therefore, the Agency must supplement the record to include a copy of the online training, as well as any other relevant sworn statements from Agency officials describing the training and its purposes. The Agency must provide Complainant an opportunity to review the supplemented record and provide a statement on what violates his sincerely held religious beliefs, if he so chooses. The parties are encouraged, if they so choose, to comment on how all segments of the training comply and/or run afoul of Example 54 of the EEOC Compliance Manual. The FAD is REVERSED. The Agency shall comply with the order below. ORDER The Agency shall supplement the record with a copy of the online or formerly online nondiscrimination training at issue in this case, as well as any other relevant sworn statements from Agency officials describing the training and its purposes, including any factors relevant to Example 54 of the Compliance Manual cited in this decision. The Agency must also provide Complainant a copy of the supplemental record, and an opportunity to submit a statement on what content in the training violates his sincerely held religious beliefs and/or complies or runs afoul of Example 54 of the Compliance Manual, if he so chooses. The Agency shall complete these actions within 65 calendar days of the date of this decision. Upon the expiration of the 65-calendar day deadline, the Agency shall notify Complainant that he has the right to request a hearing and a decision from an Equal Employment Opportunity Commission Administrative Judge (AJ), or request an immediate final decision pursuant to 29 C.F.R. § 1614.110. 29 C.F.R. § 1614.108(e). If Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the letters transmitting the supplemental investigation to Complainant and notifying him of the opportunity to comment, as well as the notice of his right to request a hearing must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations November 16, 2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 All cited exhibits are in the Report of Investigation. Exhibits are referred to as "Exh." 3 Two of Complainant's co-workers filed appeals regarding the Agency denying their requests to be exempt from the same training as a religious accommodation. One indicated the note was a broadcast email sent out in April 2016. Report of Investigation in EEOC Appeal No. 0120170846, Exh. 11 at 5 - 6. 4 The other two appeals are EEOC Appeal Nos. 0120170846 and 0120171010. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120171007 2 0120171007