Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 7 EPD ¶9244, Gaither C. Drum, Plaintiff v. Theodore L. Ware, Jr. et al., Defendants., (Feb. 21, 1974), (Feb. 21, 1974)

Gaither C. Drum, Plaintiff v. Theodore L. Ware, Jr. et al., Defendants.

United States District Court, Western District of North Carolina, Charlotte Division. No. C-C-72-214, February 21, 1974, as amended March 8, 1974..

Title VII--Civil Rights Act of 1964

Religious Discrimination--Discharge of Postal Worker--Duty of Reasonable Accommodation--Offer of Job at Other Facility.

--No reasonable accommodation could be made for the religious beliefs of a postal worker which prohibited him from working on Saturdays because the staff at the office where he worked was very small. A reasonable accommodation could be made by offering him a job at a much larger postal facility a few miles away where his no-Saturday work belief could be honored. 42 U. S. C. Sec. 2000e(j) .

Back reference.-- ¶1170.

Joseph B. Roberts, III, Mount Holly, North Carolina, for Plaintiff.

J. R. Goldthwaite, Jr., Atlanta, Georgia, George B. Driesen, Ratner & Driesen, Washington, D. C., Stanly Mestel, Regional Labor Council, United States Postal Service, and Michael S. Scofield, Assistant United States District Attorney, for Defendants.

MCMILLAN, D. J.: This matter having come on to be heard on September 5, 1973, and February 19, 1974, the Court, after consideration of the evidence and stipulations of the parties, makes the following Findings of Fact:

1. The Plaintiff was employed by the United States Postal Service on or about November 21, 1962, as a part-time substitute clerk-carrier and prior to the events complained of was promoted to full-time regularly scheduled city letter carrier.

2. On or about November 21, 1970, Plaintiff was baptized into the Worldwide Church of God, and one of the basic beliefs of that church is that the Sabbath falls upon Saturday and that none of its members may be employed between sunset Friday and sunset Saturday. The sincerity of the plaintiff’s religious beliefs is not in issue.

3. Shortly before plaintiff’s baptism, plaintiff informed defendant Theodore L. Ware, Jr., Postmaster of the Mount Holly Post Office, where plaintiff was employed, that plaintiff would thereafter be unable to work on any Saturday because of his religious practice and belief.

4. In November, 1970, and at all relevant times thereafter, six regular letter carriers were employed at the Mount Holly Post Office to deliver mail on five regular routes. One of the six was a utility carrier assigned to carry mail on the non-scheduled work days of the other five regular carriers. In addition, the Mount Holly Post Office employed two substitute letter carriers and one substitute combination clerk-carrier. These substitute carriers worked when needed and also delivered mail regularly on an auxiliary route. Carriers were required to carry mail regularly Monday through Saturday, and occasionally on Sunday.

5. Pursuant to the collective bargaining agreement between the Postmaster and defendant Branch 4470 of the National Association of Letter Carriers (AFL-CIO) (hereinafter referred to as defendant Branch), a rotating work schedule was in effect providing that each carrier’s non-scheduled work day would fall on succeeding days on succeeding weeks. The carriers were also entitled to annual leave when they could be spared and upon their request, either on a first-come-first-served basis or on the basis of seniority, depending upon the period of leave sought.

6. Because of plaintiff’s principled refusal to work on Saturday, the Postmaster required other carriers to substitute for plaintiff on each and every Saturday between November 7, 1970, and July 14, 1972, when plaintiff would otherwise have been scheduled to work. On each Saturday except those enumerated in paragraph 9, infra, the Postmaster approved plaintiff’s absences. Defendant Branch and individual carriers objected to the Postmaster’s conduct, alleging that his action had an adverse impact on the rights and opportunities of other carriers to obtain approved absences on Saturday, which is a preferred day off among letter carriers.

7. On March 20, 1971, April 24, 1971, and May 1, 1971, defendant Ware found plaintiff absent without official leave.

8. Thereafter, defendant Ware notified plaintiff by a Letter of Proposed Adverse Action dated May 28, 1971, that defendant Ware intended to suspend the plaintiff without pay for a period of not more than three calendar days.

9. On October 27, 1971, plaintiff received written notice of his proposed removal by the defendant Ware on the ground that the plaintiff had been absent from duty without official leave on the following dates: Saturday, March 20, 1971; Saturday, April 24, 1971; Saturday, May 1, 1971; Saturday, July 10, 1971; Saturday, August 14, 1971; Saturday, August 21, 1971, and Saturday, October 23, 1971. On those occasions defendant Ware had disapproved plaintiff’s leave requests pursuant to a policy of denying plaintiff leave whenever defendant Ware believed that plaintiff’s absence would work an undue hardship on the operations of the Mount Holly Post Office and/or unreasonably discriminate against other employees.

10. On November 26, 1972, defendant Ware determined to remove plaintiff from the Postal Service; plaintiff appealed this decision and was terminated on July 14, 1972, while his appeal was pending.

11. The Board of Appeals and Review of the Postal Service issued a final decision adverse to the plaintiff in August, 1972, and the plaintiff filed this action on September 15, 1972, against the named defendants under the provisions of 42 U. S. C. 2000e , et seq.

12. At Charlotte, North Carolina, 25 miles from plaintiff’s residence, the United States Postal Service employs approximately 1500 persons in the various postal crafts.

13. The Charlotte Post Office has a number of vacancies for part-time employees who have no fixed work schedules but are available for work on a flexible work schedule during the course of a service week.

14. Article XLI, Sec. 2B3(b) of the current agreement between the United States Postal Service and the National Association of Letter Carriers (AFL-CIO), et al., provides, in pertinent part:

Part-time flexible carriers shall be converted to full-time positions of the same designation and PS salary level in the order of their standing on the part-time flexible roll.

15. The parties hereto, through counsel, have proposed that plaintiff be employed by the United States Postal Service and assigned to the Charlotte, North Carolina, Post Office as a part-time flexible, with the understanding that he not be required to work from sunset Friday to sunset Saturday.

Based upon the foregoing Findings of Fact, the Court makes the following Conclusions of Law:

1. A reasonable accommodation of plaintiff’s religious practices within the meaning of 42 U. S. C. A. §2000e(j) could not be made in the Mount Holly Post Office without working an undue hardship on the operations of that Post Office.

2. The employment of the plaintiff and his assignment to the Charlotte Post Office as a part-time flexible not required to work between sunset Friday and sunset Saturday constitutes a reasonable accommodation of plaintiff’s religious practices within the meaning of 42 U. S. C. A. §2000e(j).

Based on the foregoing Findings of Fact and Conclusions of Law, It Is Hereby Ordered that:

1. Plaintiff Gaither C. Drum shall be reinstated by the United States Postal Service and be assigned to the Charlotte Branch as a part-time flexible;

2. Plaintiff Gaither C. Drum shall not be required to work between sunset Friday and sunset Saturday;

3. Article XLI, Section 2B3(b) of the current Agreement between the United States Postal Service and the National Association of Letter Carriers (AFL-CIO), et al., shall not apply to the plaintiff Gaither C. Drum.

4. Should the Postal Service and plaintiff not agree on monetary matters, the Court shall consider the same upon motion of either party.

5. The Court shall retain jurisdiction of this matter to enter such further orders as it deems appropriate for a period of one year from the date of this judgment.

Stipulation

It is hereby stipulated by and between the parties herein that:

1. The Charlotte, North Carolina, Post Office employs approximately 1,500 persons.

2. The Charlotte Post Office has a number of vacancies for part-time employees who have no fixed work schedules but are available for work on a flexible work schedule during the course of a service week.