2023004522•EEOC Appeal 2023004522
Gesamter Gesetzestext
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Alisia M.,1 Complainant, v. Douglas A. Collins, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2023004522 Hearing No. 550-2021-00270X Agency No. 200P-0612-2020104421 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 31, 2023, final order concerning her equal employment opportunity (EEO) complaint of 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission MODIFIES the Agency’s final order. 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.
2023004522 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Officer of the Day at the Agency’s Benefits and Data Management Service, Emergency Department in Mather, California. On July 29, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against and subjected her to harassment on the bases of sex (pregnancy), religion (Christian), disability (symptoms associated with pregnancy), and in reprisal for prior protected EEO activity when the Agency directed Complainant to work overtime for a period longer than initially directed; required Complainant to get her reprimand letter with or without union representation; since March 30, 2020, the Agency failed to provide her an accommodation for her religion and pregnancy; did not select Complainant for a position;2 issued Complainant a letter of counseling; and denied Complainant’s overtime request. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ granted the Agency’s motion and issued a decision by summary judgment in favor of the Agency, finding no discrimination. In the decision, the AJ found that Complainant failed to present or identify any material facts that placed the Agency’s articulated nondiscriminatory and/or nonretaliatory reasons for its actions in dispute or demonstrate pretext. The AJ found that the events alleged by Complainant did not meet the threshold of severity or pervasiveness to support her hostile work environment claim, and that Complainant did not present evidence that the Agency was motivated by an illegal discriminatory reason. In terms of the extended overtime, the AJ found that Complainant made the decision on her own to work overtime and was not directed to do so by management. 2 Complainant’s non-selection claim was dismissed as an untimely filed discrete event but retained as part of Complainant’s harassment claim. Complainant did not challenge the dismissal as a discrete event.
2023004522 3 As for the reprimand without representation and letter of counseling, the AJ found that Complainant was issued non-disciplinary counseling based on an email that Complainant sent to the Assistant Chief and several others outside of her chain of command. Management affirmed that the union was invited to the meeting but did not attend. With respect to Complainant’s request for religious accommodation, while the AJ acknowledged that Complainant requested to adjust her schedule so that she could attend church on Sundays, the AJ ultimately found that the claim failed because Complainant failed to provide the requested documentation showing the name and address of her place of worship. As for her request for reasonable accommodation due to her pregnancy, Complainant was provided with interim accommodation as well as final approval to take leave of her choice. Management affirmed that in the instances where Complainant’s leave was not approved, there was no supporting documentation and updates occurred once the supporting documentation was submitted. Regarding the denial of overtime, management explained that Complainant’s overtime requests were generally approved. However, Complainant’s request for overtime for lunch was denied due to concerns about lunch period coverage. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination or harassment as alleged. The instant appeal followed. Religious Accommodation 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). A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to comply with his religious beliefs. See Ian S. v. Dep’t of the Treas., EEOC Appeal No. 0120160622 (Apr. 27, 2018); Complainant v. Dep’t of Justice, EEOC Appeal No. 0120132112 (Apr. 17, 2015). The need for religious accommodation most frequently arises where an individual's religious beliefs, observances, or practices conflict with a specific task or requirement of the job. Id.
2023004522 4 The employer’s duty to accommodate will usually entail making a special exception from, or adjustment to, the particular requirement so that the employee will be able to practice his religion. Id. When an employee's religious belief or practice conflicts with a particular task, appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict with the employee's religion. Id. 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 his employment; (2) he or she informed the agency of this belief and conflict; and (3) the agency nevertheless enforced its requirement against the employee. 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). “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. See Samuel R. v. Dep’t of Commerce, EEOC Appeal No. 2019001557 (Aug. 19, 2020). The U.S. Supreme Court has clarified that an “undue hardship” means that providing reasonable accommodation would result in substantial increased costs in relation to the conduct of the employer's business. Groff v. DeJoy, 600 U.S. 447 (2023). Having reviewed the record, we find that Complainant established a prima facie case of failure to provide religious accommodation. While the record shows that Agency officials declined to grant Complainant’s request for religious accommodation due to her failure to provide adequate “proof of religion,” such as the name and address of her house of worship, we note that the Commission has long held that employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, as the Commission and the courts are not, and should not, be in the business of deciding whether a person holds religious beliefs for the “proper” reasons. See EEOC Compliance Manual, Section 12, Discrimination (Jan. 15, 2021). As we find no basis to deviate from the general rule, we find that Complainant did in fact have a “bona fide” religious belief.
2023004522 5 Next, it is undisputed that Agency officials were aware of Complainant’s repeated requests to have Sundays off to observe her religion and nevertheless denied her requests. As for the last prong, the parties do not dispute that the Complainant’s requests remained unresolved despite Complainant providing additional information about the name of her place of worship and her commute time to get there. 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. Indeed, there is no evidence in the record that the Agency attempted to obtain voluntary substitutes or swaps for the Sundays that Complainant was scheduled to work even though Complainant reported that a coworker agreed to swap schedules. The Agency has provided no evidence as to why Complainant could not have rotated schedules with other employees who had Sundays off. We find the evidence in the record insufficient to demonstrate undue hardship, as the Agency failed to present evidence of the impact to its operations if it had allowed Complainant to have Sundays off without requiring her to utilize some form of leave. Therefore, we find that the Agency violated Title VII when Complainant’s request for religious accommodation was denied by virtue of its inaction. Accordingly, we REVERSE the Agency's decision regarding this claim and ORDER the Agency to take further action in accordance with the Order below. Remaining Claims Upon careful review of the AJ’s decision and the evidence of record, we find that with respect to the remaining claims, the AJ correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected her to discrimination or harassment as alleged. Here, the record reflects that the Agency provided legitimate, nondiscriminatory explanations for its actions. In addition, we find the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Complainant has produced no evidence to establish that her religion, disability, or prior EEO activity were factors in any of these actions.
2023004522 6 CONCLUSION Accordingly, we MODIFY the Agency’s final order implementing the AJ’s decision. We REVERSE the Agency's decision on the claim related to a failure to provide a religious accommodation and ORDER the Agency to take further action in accordance with the Order below. We AFFIRM the Agency’s findings that Complainant did not establish that the Agency subjected her to discrimination or harassment based on disability or in reprisal for prior protected EEO activity. ORDER The Agency shall undertake the following remedial actions: 1. The Agency shall determine the amount of compensatory damages to which Complainant is entitled and pay Complainant that amount: a. Within sixty (60) calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant’s claim of compensatory damages in connection with her claim that she was denied religious accommodation. i. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). ii. Complainant shall cooperate with the Agency in this regard, including by responding to Agency requests for information and by completing any Agency forms. Complainant shall reply to any Agency requests for information within thirty (30) calendar days. b. Within thirty (30) calendar days of the completion of the supplemental investigation, the Agency shall issue a final decision, with appeal rights to the Commission, addressing the issue of compensatory damages.
2023004522 7 c. Within sixty (60) calendar days of determining the amount of compensatory damages due Complainant, the Agency shall issue a check to Complainant for the undisputed amount. 2. To the extent that it has not already done so, the Agency shall, within thirty (30) calendar days from the date this decision is issued, provide Complainant with a reasonable accommodation for her religious beliefs. This shall be accomplished by having the Agency seek the voluntary swap of Complainant’s Sunday work obligations with a substitute who has substantially similar qualifications. The Agency shall disseminate information to all individuals who share substantially similar qualifications of the opportunity to swap Sunday work obligations with Complainant by email, posting the information on a bulletin board, or by other means regularly used by the Agency to advertise such opportunities. The Agency shall ensure that Complainant is not placed in the position of having to seek volunteers herself. Where voluntary swaps cannot fully accommodate Complainant’s religious beliefs, the Agency shall consider alternative accommodations, including, but not limited to, lateral transfers, or changes in job assignments or crafts. See 29 C.F.R. § 1605.2(d). 3. Within sixty (60) calendar days from the date this decision is issued, the Agency shall restore or reimburse any leave Complainant was forced to use due to the Agency’s failure to provide Complainant with reasonable accommodation for her religious beliefs beginning March 30, 2020. 4. Within ninety (90) calendar days of the date this decision is issued, the Agency shall provide four (4) hours of interactive EEO training to the Local Reasonable Accommodation Coordinator, identified on page 553 of the ROI, who improperly handled Complainant’s request for religious accommodation. The Agency shall provide training as to the current state of the law on employment discrimination, particularly the “Guidelines on Discrimination Because of Religion” contained at EEOC Regulations 29 C.F.R. § 1605. 5. Within ninety (90) calendar days of the date this decision is issued, the Agency shall consider taking disciplinary action against the Local Reasonable Accommodation Coordinator. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the
2023004522 8 Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. 6. The Agency shall post a notice in accordance with the paragraph entitled, “Posting Order.” 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 (G0617) The Agency is ordered to post at its Benefits and Data Management Service, Emergency Department, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled “Implementation of the Commission's Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.
2023004522 9 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1125) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2023004522 10 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Sector (OFS) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit their request and arguments to the Director, Office of Federal Sector, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFS receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files their request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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(f).
2023004522 11 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0124) 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 their 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 (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.
2023004522 12 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: T. Gimbrere Acting Director's signature T. Gimbrere, Acting Director Office of Federal Sector September 14, 2026 Date
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