Javay Q. Jones v. United States Postal Service
01990052
8/30/01
.
Javay Q. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01990052
Agency No. 4H-350-1102-95
Hearing No. 130-97-8170X
DECISION
Complainant timely initiated an appeal from the agency’s final decision
concerning her 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 she was
discriminated against on the basis of religion (Seventh Day Adventist)
when, on or about December 1, 1994, she received a Letter Of Warning
for being Absent Without Leave (AWOL) from her duty assignment. For the
following reasons, the Commission REVERSES the agency’s final decision.
The record reveals that complainant, a Distribution & Window Clerk at
the agency’s Mobile Alabama facility, filed a formal EEO complaint with
the agency on May 5, 1995, alleging that the agency had discriminated
against her as referenced above.
At the conclusion of the investigation, complainant was provided 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 discrimination. The AJ concluded that complainant established a
prima facie case of religious discrimination because she established that:
(1) complainant’s religious beliefs, which prohibit her from working
Friday sundowns until Saturday sundown, conflicted with her scheduled
work day; (2) that the agency was aware of complainant’s religious
requirements; and (3) the agency nevertheless disciplined complainant
for not working on her scheduled work day which fell on a Saturday.
The AJ then concluded the agency failed to establish that a reasonable
accommodation on the day in question was not possible. Indeed, the AJ
found insufficient credible evidence that the agency made any efforts
to accommodate complainant prior to initiating the discipline. The AJ
found that the agency failed to satisfy its burden of establishing that
an accommodation would cause an undue hardship on the agency. In that
regard, the agency only maintained that complainant was needed to work
some Saturdays.
As such, the AJ found complainant proved the agency discriminated against
her when it failed to accommodate her religious beliefs. The AJ found
complainant failed to establish a disparate treatment case of religious
discrimination, however. As relief, the AJ recommended that the agency
remove the Letter of Warning from any and all agency records, and that
complainant be provided with a reasonable accommodation of her religious
beliefs in the future. The AJ found no evidence of compensatory damages
was presented.
On August 28, 1998, the agency issued a final decision that rejected
the AJ’s decision. Therein, the agency found complainant could not be
accommodated every Saturday because of her position as a relief worker.
Specifically, the agency maintained that complainant’s services were
needed when other Distribution & Window Clerks were on vacation or
were sick.
In response, complainant contends that the AJ’s decision correctly
summarized the facts and reached the appropriate conclusions of law.
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).
After a careful review of the record, the Commission finds that the AJ’s
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb the
AJ’s decision. We find substantial evidence in the record supports
the AJ’s finding that the agency failed to reasonably accommodate
complainant before it issued the discipline. Agency officials were
unable to credibly testify as to what attempts were made, if any, to
accommodate complainant prior to the discipline. Although the agency
cited another relief worker who often agreed to work on Saturdays, the
relief worker testified he stopped this practice after he received an
anonymous call urging him not to change his schedule.
Although the evidence reveals the agency urged complainant to bid on
another position, it was unable to site to a position which was available
for bid between the time she requested the accommodation, and the time
it issued her the discipline. The agency failed to satisfy its burden
of establishing that to accommodate complainant would have constituted an
undue hardship. The agency produced no evidence of its attempts to seek
volunteers to work Saturdays, or attempts made to transfer complainant
to another position prior to the time it issued the discipline.<1>
Therefore, after a careful review of the record, including complainant’s
arguments on appeal, the agency’s response, and arguments and evidence
not specifically discussed in this decision, the Commission REVERSES
the agency’s final decision and REMANDS the matter to the agency to take
remedial actions in accordance with this decision and the ORDER below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
The agency shall immediately remove any and all references of the Letter
of Warning from complainant’s official personnel file and the agency’s
records.
The agency shall immediately provide complainant with a reasonable
accommodation of her religious beliefs, unless to do so would cause the
agency an undue hardship.
The agency shall provide training to complainant’s supervisors who were
involved in the decision to issue the discipline involved herein in the
laws which provide for religious accommodation.
The agency shall pay complainant’s reasonable attorney’s fees in
accordance with the paragraph below.
The agency shall post a notice in accordance with the paragraph below.
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 (G0900)
The agency is ordered to post at its Springhill Station, Mobile Alabama
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 (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he/she 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 (R0900)
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 (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
8/30/01
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistant
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person’s RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions,
or privileges of employment.
The United States Postal Service, Springhill Station, Mobile, Alabama
facility, (hereinafter referred to as “facility”) supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The facility has been found to have discriminated on the basis
of religion when it failed to provide a religious accommodation.
The agency was ordered to remove any and all references to the Letter of
Warning issued to the employee, provide the employee with a reasonable
accommodation of her religious beliefs, conduct training for the
responsible officials, pay proven attorney’s fees and post this notice.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 16141The agency did offer complainant two night positions
in Mail Processing after it issued her the Letter of Warning.
