01995957
08-27-2002
Ronald Ritchie, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald Ritchie v. United States Postal Service
01995957
August 27, 2002
.
Ronald Ritchie,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995957
Agency No. 4C-450-0086-98
DECISION
Complainant timely initiated an appeal from a final agency action
concerning his 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. Pursuant to 29 C.F.R. �
1614.405, the Commission accepts the complainant's appeal in the
above-entitled matter. After a review of the record in its entirety,
including consideration of all statements submitted on appeal, the
Equal Employment Opportunity Commission AFFIRMS in part and REVERSES
in part the June 18, 1998, final agency decision. As discussed below,
the Commission REVERSES the agency decision with regard to the Dunbar
Station Branch's ban on all religious matter because a preponderance of
the record evidence establishes that discrimination occurred.
The record reveals that during the relevant time, complainant was employed
as a letter carrier, at the Dunbar Station Branch, Dayton, Ohio facility.
Complainant alleges he was discriminated against on the basis of religion
(Christian) when the Manager of the Dunbar Station Branch responded to two
complaints about complainant's religious display of personal effects by
adopting a policy prohibiting the displaying of all non-postal material,
specifically �anything that may be construed as sexual material or of a
religious matter.� The agency removed personal items from complainant's
work area and disciplined him, ostensibly for disrupting the work place.
Complainant was ordered off the clock when he continued to protest
by placing a piece of tape on his mouth and sitting on a stool in the
aisle in protest of the agency's removal of his religious materials. The
record indicates that complainant ignored instructions to return to his
letter case.
The record also suggests that complainant called his supervisor an
offensive name when he was escorted out of the building, but complainant
says the supervisor misunderstood his comment.
Believing he was a victim of discrimination, complainant sought EEO
counseling on August 14, 1998. Subsequently, complainant filed a
formal complaint on October 2, 1998. Complainant alleged that he was
discriminated against based on his religion (Christian) when:
on August 5, 1998, after receiving two co-worker complaints about
complainant's effects, the Dunbar Station Branch posted a memo
prohibiting the display of �anything that may be construed as sexual
material or of a religious matter;�
on August 7, 1998, complainant's personal religious items were removed
from his letter case (work area);
on August 8, 1998, complainant was instructed not to talk to other
carriers and to return to his letter case;
on August 11, 1998, complainant was ordered off the clock after he
protested the policy, by placing tape over his mouth and refusing to
return to his letter case;
on August 12, 1998, complainant was issued a Letter of Warning for
ignoring instructions and failing to perform his duties;
on August 18, 1998, complainant was told to stop talking when he
should be at his letter case; and
on August 20, 1998, complainant was issued a seven-day suspension
for improper conduct.
At the conclusion of the investigation, complainant was provided a copy
of the investigative file and requested a final agency decision without
a hearing. After accepting the complaint for investigation, the agency
issued a final decision on June 18, 1998.
In its final agency decision, the agency concluded that complainant
has not met the burden of establishing a prima facie case of religion
discrimination based on disparate treatment. In reaching this
conclusion, the agency analyzed the case as a disparate treatment case
under the three-tiered analytical framework outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). In rejecting the claim, the agency
reasoned that since the Dunbar Station Branch notice, banning religious
effects, was issued to all employees, complainant was treated like all
other employees. In addition, the agency rejected complainant's complaint
because he cited no comparison employees outside of his protected group,
who are similarly situated to himself and yet were treated more favorably
than he. The agency stated that no discriminatory animus was shown and
that the preponderance of the evidence supports a conclusion that the
reasons articulated by the agency are the true reasons for the action
taken.
Complainant raises similar arguments on appeal to those he raised
before the agency. Complainant challenges, as clearly erroneous, the
agency's finding of no discrimination and its finding that complainant
failed to establish a prima facie case of discrimination based on
religion. Complainant also contends, among other things, that the agency
erred because it applied the wrong legal standard. Complainant notes that
employers are required to reasonably accommodate an employee's religious
observances or practices, barring a demonstration of undue hardship.
The agency stands on the record and requests that we affirm its final
decision dismissing complainant's complaint on the merits for failure
to establish a prima facie case of religion discrimination based on
disparate treatment and based on its finding of no discrimination.
In this case, the record indicates that complainant has a sincerely held
religious belief (Christian) and that the tenets of the religion require
him to �witness� to (educate) others. Furthermore, he has identified
a practice of his religion which conflicts with the requirements of the
position, namely his need to witness to others and displaying religious
effects. The record confirms that the agency officials responsible for
implementing the action had knowledge of complainant's religious beliefs
and posted the policy after receiving two complaints about complainant's
religious display of personal effects. Despite the agency's knowledge
that the policy conflicted with complainant's religious beliefs, the
record confirms that the agency removed complainant's personal religious
effects from his work area.
We note that the agency applied the wrong legal standard. Because there
is direct evidence of discrimination, the McDonnell Douglas paradigm is
inapplicable. The policy and written notice were promulgated in response
to complainant's displays of religious materials and targeted those
displays by specifically referencing religious materials. A violation is
established unless there is evidence that the employer would have taken
the same steps even absent discrimination. See Brown v. Polk County,
68 FEP Cases 648 (8th Cir. 1995) (en banc) (order to remove religious
articles described as �extraordinary�).
The agency's only justification for its action is that other employees
were �uncomfortable� with complainant's actions. It is a fundamental
precept of discrimination law that discriminatory preferences of customers
and colleagues cannot justify discriminatory treatment.<2> There is no
evidence of undue hardship in this case.<3>
Moreover, the agency's assertion that the removal of non-postal materials
was necessary because of an upcoming postal route inspection is not
credible. There were no postal route inspections scheduled near the
time of the incident. The record does not show that the Branch issued
any similar orders prohibiting religious materials before previous
route inspections.
Of course, an agency is not required to allow the employee to espouse
religious ideas during the performance of his work when to do so is
inconsistent with the performance of his work duties. See Henrickson
v. Department of the Treasury, EEOC Appeal No. 01922928 (December
3, 1992) (holding that a tax examiner could not persist in praying
with taxpayers during phone conferences). Title VII protects workers
against unlawful discrimination, but it does not provide a license for
complainant to disregard instructions, engage in disruptive conduct,
or call his supervisor an offensive name. There is nothing in Title
VII that requires employers to give lesser punishments to employees who
claim, when they violate agency rules, that their religion caused them
to transgress the rules. The record supports the agency findings that
complainant ignored repeated instructions to return to his work at his
work area (issues 3 and 4); engaged in disruptive conduct when he placed
a piece of tape on his mouth (issue 5); ignored instructions to return
to work at his letter case (issue 6); continued to stay away from his
duty station when he remained idle after being directed back to work
(issue 7); and engaged in improper conduct when he called his supervisor
an offensive name (issue 8). For these reasons, the Commission AFFIRMS
the agency's final decision with regard to the conduct related issues
which are referenced as issues 3 through 8.
However, we reverse the agency's finding of no discrimination with regard
to issues 1 and 2. We find the Dunbar Station Branch discriminated against
complainant on the basis of his religion by its blanket prohibition of any
religious material and its enforcement against complainant because of his
religious practices. We further find that the agency did not show that
it would have taken the same action even absent the discrimination. For
all of these reasons, we REVERSE the final agency decision with regard
to issues 1 and 2.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes final,
the Dunbar Station Branch is ordered to rescind any memoranda or policies
that prohibit complainant or other employees from displaying religious
material in his or her work stations, unless the Branch can establish
changed circumstances that currently warrant a uniform ban.
The agency is directed to conduct training for complainant's Supervisor,
the Plant Manager, and the Human Resources Specialist at the Dunbar
Station Postal Facility, as to the current state of the law on employment
discrimination, particularly the �Guidelines on Discrimination Because of
Religion� contained at 29 C.F.R. � 1605. The agency shall address these
employees' responsibilities with respect to eliminating discrimination
in the workplace.
The agency shall consider taking appropriate disciplinary action against
the supervisor who discriminated against complainant. The agency shall
report its decision. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline.
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of his right to submit
objective evidence in support of any claim for compensatory damages. The
agency shall complete the investigation on the claim for compensatory
damages within sixty (60) calendar days of the date the agency receives
complainant's claim for compensatory damages and evidence in support of
his claim for any compensatory damages. Thereafter, the agency shall
process the claim in accordance with 29 C.F.R. 1614.108(f).
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 of the
agency's investigation into complainant's claim for compensatory damages
and evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Dayton, Ohio 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 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 in part. 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 that portion of your complaint which the Commission
has affirmed. 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
August 27, 2002
__________________
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 Act of 1964 (Title VII), 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 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.
The United States Postal Service, Dunbar Station Branch, Dayton Ohio
Post Office (Dunbar Station Branch), supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Dunbar Station Branch has been ordered to remedy an employee affected
by the Commission's finding that the Dunbar Station Branch, Dayton, Ohio
discriminated against him based on his religion. As a remedy for the
discrimination, the Dunbar Station Branch was ordered, among other things,
to award compensatory damages, if proven. In addition, the facility
was ordered to submit a compliance report to the Commission verifying
the completion of all ordered corrective action. The Dunbar Station
Branch 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.
The Dunbar Station Branch 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 1614
2 See 29 CFR �1604.2(a)(iii) (an employer cannot justify its actions
because of the preferences of coworkers or customers). See also
Banks v. Interior, EEOC Request No. 05920680 (March 4, 1994) (general
discontent or grumbling among other employees is not an undue hardship
in the context of religious accommodation cases).
3 Because of our resolution of this matter, it is not necessary to
address complainant's allegation that the agency failed to accommodate
his religious beliefs.