Jone Jye Yau v. United States Postal Service
07A50063
May 24, 2006
.
Jone Jye Yau,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A50063
Agency No. 4F-913-0159-03
Hearing No. 340-2004-00049X
DECISION
The agency filed an appeal to the Commission pursuant to 29 C.F.R. §
1614.110(a), after an EEOC Administrative Judge (AJ) issued a decision
dated March 1, 2005. Complainant, a clerk at the agency's Burbank Post
Office, filed a complaint, dated May 13, 2003, in which he alleged
discrimination on the bases of race (Asian), religion (Buddhist), sex
(male), and age (51) when:
On October 12, 2002, his job was abolished;
Complainant's leave requests for July and August 2003 were denied.
After an investigation, complainant requested a hearing before an AJ.
Following a hearing, the AJ, on March 1, 2005, issued a decision finding
no discrimination on the bases of race, sex and age and finding no
discrimination on any bases with respect to claim (1)<1>. The AJ found
religious discrimination with respect to claim (2). The AJ ordered the
following remedies:
Restoration of back pay, plus interest, for the two-week period
complainant was charged absent without official leave (AWOL) 8/12/03
to 8/26/03;
All supervisors and managers at the Burbank Post Office shall be given
training on their obligation to provide religious accommodation to
their employees;
A 60-day notice of the AJ's finding of discrimination shall be posted
at the Burbank Post Office;
The agency is to pay complainant the sum of $1,000 for pain and suffering
resulting from its failure to accommodate him.
The agency, on April 15, 2005, issued a decision in which the agency
adopted the AJ's findings of non-discrimination, but rejected the AJ's
finding of discrimination on the basis of religion with respect to claim
(2), regarding the agency's denial of leave for July and August 2003.
Accordingly, the agency chose not to implement the AJ's decision and
filed the instant appeal. On appeal, the agency argues that complainant's
attendance at a Buddhist conference, for which he requested annual leave
in 2003, was an optional religious activity, and thus, the agency had
no duty to accommodate complainant's request under Title VII.
Complainant also filed an appeal regarding the AJ's finding with respect
to claim (1), the abolishment of his job in October 2002. On appeal,
complainant contends that the agency failed to respond to his discovery
requests, and therefore the only evidence presented with respect to claim
(1) was the testimony of witnesses at the hearing. Complainant points
out that the testimony of agency officials was inconsistent regarding the
abolishment of jobs belonging to complainant and other similarly situated
employees and therefore the testimony is unreliable in the absence of
documentary evidence. Complainant requests that the agency be sanctioned
for its discovery failures and an adverse inference be drawn against
the agency regarding the abolishment of his job. Regarding claim (2),
complainant agrees that the remedy ordered by the AJ was appropriate.
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.
As an initial matter, we note that it has long been common practice for
AJs to conduct pre-hearing matters by telephone, and to take testimony
by telephone where a witness would otherwise be unavailable to testify.
Louthen v. United States Postal Serv., EEOC Appeal No. 01A44521 (May
17, 2006) (citing Mozee and Bailey v. United States Postal Service,
EEOC Appeals Nos. 01A34265 and 01A34266 (January 10, 2005) (prehearing
conducted by telephone); Freeman v. United States Postal Service,
EEOC Appeal No. 01924204 (September 30, 1993) (witness testimony taken
by telephone); Davis v. Department of Transportation, EEOC Appeal
No. 01883565 (January 18, 1989), req. to reopen, den., EEOC Request
No. 05890471 (November 9, 1989) (witness testimony taken by telephone)).
In the instant case, the testimony of one witness was taken by telephone
without objection of the parties.<2> The instant hearing was held prior
to the Commission's decision in Louthen. The Commission, applying the
principles set forth in Louthen, finds that the AJ did not abuse her
discretion in allowing, with no objections, the telephone testimony of
one witness considering the totality of the circumstances.
Claim (1)
The record reflects that complainant was initially employed by the
agency as a letter carrier. In 1988, complainant suffered an on-the-job
injury, after which he transferred to the clerk craft. On October 2,
2002, complainant was notified that his bid job would be abolished
effective October 12, 2002, as a result of a function 4 audit conducted
in July 2002. Complainant's new position was as an unassigned regular
with a variety of duties and a change of schedule from 10:15 am - 6:45
pm, to 11:00 am - 7:30 pm. Two other positions were also slated for
abolishment at the same time. E1, a Black male, also over 40 years of
age, became an unassigned regular. Another clerk, E2, a White female,
was supposed to have her job abolished, but the union negotiated on her
behalf and ultimately, her job was not abolished.
The AJ found that the agency presented non-discriminatory reasons,
specifically, reasonable business considerations for the abolishment of
complainant's job, instead of that held by the younger, White female
employee, E2. Both complainant and E2 performed “nixie” job duties,
but the function 4 audit revealed that there was not enough nixie work
for two employees. Because complainant was capable of performing a wider
range of job duties than E2, complainant's job was the logical job to be
abolished. Accordingly, the AJ found that complainant had not shown that
the agency's reasons for its actions were a pretext for discrimination.
We find that the AJ's decision regarding claim (1) is amply supported by
the record, and we see no reason to disturb the AJ's decision regarding
claim (1).
Claim (2)
The record further reflects that for several years, beginning in 1998,
complainant had attended a two-week long Buddhist religious training
conference, held annually, for which he requested, each year, to use his
accrued annual leave. A conflict arose with his work schedule for the
reason that the dates of the annual conference were not announced until
April or May, while complainant was required to choose his vacation dates
in November. Accordingly, complainant had selected dates in November
2001, that needed to be changed when complainant learned the actual
dates for the 2002 conference dates. Complainant sought to change his
vacation dates and ultimately, his leave request for 2002 was approved
and complainant attended the conference as he had the previous year.
However, in 2003, complainant's immediate supervisor (S1), who had
approved his leave requests in prior years, was not authorized to approve
his leave request for 2003. The Postmaster of the Burbank Post Office
testified that she concurred with the decision of another supervisor (S2)
who denied complainant's leave requests in 2003, because “there [were]
no openings on the leave chart.” Further, the Postmaster testified that
she did not consider complainant's request to attend the conference a
legitimate request for religious leave.
Contrary to the Postmaster's position, the AJ found that complainant
did not consider his attendance at the annual religious conference to be
optional, but rather a mandatory requirement of his religious practice,
for which complainant properly sought accommodation. The AJ considered
complainant's testimony regarding the commencement of his multi-year
training to become a Buddhist Temple Master and Service Man and noted
that his attendance at the conference was required of participants in
the training program and those who maintained a temple in their home,
which complainant and his wife did. Significantly, the AJ found that
the agency made no showing that complainant's absence in 2003 (or any
year prior) actually created an undue hardship; rather, the AJ found
that complainant's request was denied solely because the agency did not
deem complainant's request to be a request for religious accommodation.
The AJ disagreed with the agency's characterization of complainant's
request and found that the agency was obligated to meet complainant's
religious needs, absent a showing of undue hardship.
On appeal, the agency again argues that attendance at the annual
conference was properly characterized as an optional religious activity,
which does not require the agency accommodation. Terry v. Small Business
Administration, EEOC Appeal No. 01A12512 (August 28, 2003).
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. 29 C.F.R. § 1605.2(b)(1). The traditional
framework for establishing a prima facie case of discrimination based on
religious accommodation requires complainant to demonstrate that: (1) he
has a bona fide religious belief, the practice of which conflicted with
his employment; (2) he informed the agency of this belief and conflict;
and (3) the agency nevertheless enforced its requirement against him.
Baum v. Social Security Administration, EEOC Appeal No. 01A05985 (March
21, 2002) (citations omitted).
“A refusal to accommodate is justified only when an employer . . . can
demonstrate that an undue hardship would in fact result from each
available alternative method of accommodation.” 29 C.F.R. § 1605.2(c).
Pursuant to 29 C.F.R. § 1605.2(d), 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. Baum,
EEOC Appeal No. 01A05985 (citation omitted).
We find, as did the AJ, that complainant has established a prima
facie case of religious discrimination with respect to claim (2).
Record evidence supports the AJ's finding that complainant's attendance
at the annual conference was not an optional activity but a part of
his religious observance and practice. We find the facts herein must
be distinguished from those presented in either Nesbitt v. United
States Postal Service, EEOC Appeal No. 01996248 (September 19, 2000)
(where teaching and choir practice activities were considered optional
activities and an accommodation of complainant's requests was deemed to
create an undue hardship) or Terry.
In Nesbitt, we note that the request for accommodation was a request
for an on-going change to the weekly schedule so that complainant could
participate in religious study and choir practice, at which complainant's
attendance was voluntary and optional. Those facts, coupled with
the significant disruption (numerous delivery routes would need to be
changed) in the workplace that would be occasioned by accommodation of
complainant's request, properly excused the agency from its obligation
to otherwise accommodate complainant's request.
In Terry, we note that complainant requested that he be able to use
compensatory time, as opposed to earned annual leave, in order to attend
a religious conference described as including character assessment and
training in complainant's pursuit of ordination. When he submitted a
request to use annual leave, his request was granted. Our decision in
Terry contains few other details regarding the nature of the conference
by which we might assess its similarity to other religious conferences.
In the instant case, complainant demonstrated that he had historically
attended the annual Buddhist conference every year since at least 1998,
had created a temple in his own home, and had completed, together with
his wife, a three-year program to become a Temple Master. Complainant
testified that his attendance at the annual conference was mandatory as a
condition of maintaining his temple and standing as a Temple Service Man,
with continued training and participation at the national level. Further,
complainant had earned the annual leave he intended to use, the agency
was well aware of his religious needs (having accommodated him in
previous years), and complainant was nonetheless denied the opportunity
to change his vacation days to attend the two-week 2003 conference in
New York.<3>
We note, as did the AJ, that complainant's sincere belief that his
attendance was mandatory is underscored by his willingness to risk his
17-plus year career to attend. Complainant knew that his leave was not
granted before he left and that he faced discipline for being AWOL, in
defiance of a direct order that he appear for his scheduled duty hours
during the dates of the conference. We find substantial evidence to
support the AJ's determination that complainant's attendance at the
conference was an integral part of his religious practice, which in
turn, obligated the agency to provide an accommodation, absent an undue
hardship.
Once complainant establishes a prima facie case, the agency must
show that it made a good faith effort to reasonably accommodate his
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.
Baum, EEOC Appeal No. 01A05985 (citations omitted). Undue hardship may
be shown where the costs of the proffered accommodation are more than de
minimis or where such accommodation would deny another employee his job
shift guaranteed by a bona fide seniority system. See Hoffman v. United
States Postal Service, EEOC Appeal No. 01A01092 (June 29, 2001), request
for reconsideration denied, EEOC Request No. 05A10911 (Nov. 16, 2001);
29 C.F.R. § 1605.2(e).
Here the agency failed to make a good faith effort to accommodate
complainant's religious needs. Rather, the record reflects that
complainant's initial request in 2003 was flatly denied because the
agency did not recognize any duty to accommodate his request. The AJ
found that when complainant's request to change his annual leave was
granted, complainant was not required to switch with other employees
and no evidence suggested the granting of leave to complainant caused
any problems with the agency's operation. Record testimony indicates,
on the contrary, that the agency took steps to prevent complainant
from receiving approval for his 2003 leave request in the manner he had
in previous years. Furthermore, the AJ found that the agency made no
showing that complainant's absence in 2003 would have caused an undue
hardship to the agency's Burbank operation.<4>
After a careful review of the record, we discern no basis to disturb the
AJ's finding of no discrimination with respect to claim (1) and finding
of religious discrimination (failure to accommodate) with respect to claim
(2). The findings of fact are supported by substantial evidence, and the
AJ correctly applied the appropriate regulations, policies, and laws.
We therefore AFFIRM the agency's final order finding no discrimination
with respect to claim (1). We REVERSE the agency's final order finding
no discrimination with respect to claim (2) and remand the matter to the
agency to take corrective action in accordance with the Order issued by
the AJ, as slightly modified herein.
ORDER
Within 30 days of the date this decision becomes final (except for
provision 2 which shall be accomplished within 180 days of the date this
decision becomes final), the agency shall take the following actions
Pay complainant back pay (including overtime), with interest, retroactive
to the two-week period complainant was charged absent without official
leave (AWOL) 8/12/03 to 8/26/03, pursuant to 29 C.F.R. § 1614.501.
Complainant shall cooperate in the agency's efforts to compute the amount
of back pay and benefits due and shall provide relevant information
requested by the agency. If there is a dispute regarding the exact
amount of back pay and/or benefits due the agency shall issue complainant
a check for the undisputed amount within thirty calendar days of the date
that the agency determines the amount it believes due. Complainant may
petition for enforcement or clarification for the amount in dispute.
Within 180 days of the date this decision becomes final, the agency
shall train all management and supervisory personnel in the Burbank
Post Office concerning religious accommodation under Title VII and the
agency's duties under that statute to ensure that similar violations
do not occur.
Post the attached NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION (after being signed by the Agency's
duly authorized representative) in conspicuous places, including all
places where notices to employees are customarily posted, as specified
herein.
The agency shall consider taking disciplinary action against the
individual responsible for making the agency's decision in this matter.
If the agency decides to take disciplinary action, it shall identify it
in a compliance report the action taken. If the agency decides not to
take disciplinary action, it shall set forth in its compliance report
the reason(s) for its decision not to impose discipline.
Pay to complainant the sum of $1,000 for non-pecuniary, compensatory
damages, resulting from its failure to accommodate him.
The agency shall send evidence that they have complied with provisions
1 - 5 of this Order to the Compliance Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Burbank Post Office, Burbank,
California 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
__________________
Date
NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
An Agency of the United States Government
This 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 At of 1964 (Title VII),
as amended, 42 U.S.C. § 2000(e) et seq., has occurred at the agency's
Burbank Post Office facility, in Burbank, California.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the 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.
This facility was found to have discriminated against complainant on the
basis of religion. The facility was ordered to pay backpay, compensatory
damages, and attorneys fees and costs. This facility will ensure that
officials responsible for personnel decisions and terms and conditions of
employment will abide by the requirements of all federal equal employment
opportunity laws and will not retaliate against employees who file EEO
complaints.
This facility will comply with federal law and 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.
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1We find that the record overall indicates that claim (2) is based
solely on religious discrimination, while claim (1) is based on race,
sex, religion, and age.
2“In Louthen, the Commission has promulgated its policy regarding
the taking of telephonic testimony in the future by setting forth
explicit standards and obligations on its Administrative Judges and the
parties. Louthen requires either a finding of exigent circumstances
or a joint and voluntary request by the parties with their informed
consent. When assessing prior instances of telephonic testimony, the
Commission will determine whether an abuse of discretion has occurred
by considering the totality of the circumstances. In particular, the
Commission will consider factors such as whether there were exigent
circumstances, whether a party objected to the taking of telephonic
testimony, whether the credibility of any witnesses testifying
telephonically is at issue, and the importance of the testimony given
telephonically. Further, where telephonic testimony was improperly taken,
the Commission will scrutinize the evidence of record to determine
whether the error was harmless, as is found in this case.” Sotomayor
v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).
3We note that complainant attempted in good faith, each year, to guess
on which dates the conference was likely to be held and signed up for
those dates in November of the preceding year.
4At the hearing, witness testimony revealed that the vacation sign
up arrangement had been changed for 2003 to make the likelihood that
complainant could swap vacation weeks with another employee virtually
impossible.
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